Anticipatory bail cannot be granted unless clear evidence supports a claim of innocence.

O R D E R

Dated this the 26th day of May 2020 This is an application for anticipatory bail.

2. The petitioner is arraigned as the accused in Crime No.96/2020 of Adoor Excise Range Office, for having allegedly committed the offences punishable under Sections 8 (1) & (2) and 55(g) of the Kerala Abkari Act . The prosecution case in brief is that on 15.04.2020, the Excise Inspector, Adoor on special duty reached Chernikal and got a reliable information that the petitioner is brewing illicit arrack in a property bearing the house name Jaya Bhavan. On reaching the place it was revealed that the house is locked from the front and on further inspection, the northern side of the premise was partly opened and the Excise officials entered therein and found ten litres of illicit arrack in a black can in the kitchen. The Excise party also recovered wash for brewing the arrack in three cans and in an aluminum bucket from the said place.

3. The house belongs to one Devarajan and was allegedly leased out to the accused, who had in turn, allegedly entrusted the house to two persons for distillation of arrack. Consequently, the accused has been implicated in the crime.

4. The petitioner states that he is innocent and denies all the allegations of distillation of arrack and also states that he has no manner of possession of the building and that there is no document to prove that the property was leased to him by the owner Sri.Devarajan. Since the petitioner apprehends arrest, he has approached this Court for anticipatory bail. Earlier, he had approached the Sessions Court, Pathanamthitta for anticipatory bail and the said Crl.M.P. B.A.(T) No.82/2020 was dismissed by the Court vide Annexure A order.

5. The learned Counsel Sri.Nireesh Mathew vociferously argues that the embargo under Section 41A of the Abkari Act is not attracted in this case because the prosecution has not been able to establish even a prima facie case regarding petitioner's involvement in the alleged distillation of arrack. When there is absolutely no evidence against the accused, the embargo under cannot be invited and therefore, this petition for anticipatory bail can very well be considered.

6. Heard the learned Counsel Sri.Nireesh Mathew as well as the learned Public Prosecutor.

7. The Hon'ble Supreme Court in Muraleedharan v.

State of Kerala, 2001 KHC 411 held that no person shall be released on bail in contravention of Section 41A of the Abkari Act. It is to be understood that unless the court considering the bail application finds that the petitioner is entitled for acquittal, or that there are reasonable grounds for believing that the accused is not guilty and record its satisfaction about the existence of such grounds, he is not entitled for bail much less than an anticipatory bail. The Court has to consider the matter as if it is pronouncing the judgment of acquittal.

8. The specific case of the petitioner is that there is no material to show that he had leased out the property from the owner and in the absence of that, the prosecution will not be able to prove that the contraband articles allegedly recovered from the house belongs to the petitioner and that he is the perpetrator of the crime. Whether the prosecution would be able to prove and establish the alleged lease of the property to the petitioner is a matter of evidence and in the instant case even the investigation is not yet complete. The investigating officer has ample opportunity to collect evidence and material regarding the possession of the property by the petitioner and therefore it is premature for this Court to enter a finding that the prosecution has not succeeded in establishing the possession or the lease in favour of the petitioner and grant anticipatory bail to him under the premise that he is not guilty. Hence, this application for anticipatory bail is dismissed.