Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 24TH DAY OF JULY 2023 / 2ND SRAVANA, 1945 BAIL APPL. NO. 8945 OF 2022 AGAINST THE ORDER/JUDGMENT IN CRMC 1385/2022 OF DISTRICT COURT & SESSIONS COURT,THRISSUR PETITIONER/ACCUSED:
K.M.GAFOOR AGED 42 YEARS S/O.MOIDEEN HAJI, KUNNATHUPEEDIKAYIL HOUSE, VARAVOOR, THRISSUR DISTRICT, PIN - 680585 BY ADVS.
P.SANJAY A.PARVATHI MENON KIRAN NARAYANAN RAHUL RAJ P.
PRASOON SUNNY PAUL VARGHESE (PALLATH) AMRUTHA M. NAIR BIJU MEENATTOOR RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY C.I OF POLICE, CHERUTHURUTHY POLICE STATION, THRISSUR, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682031.
SRI.MOHAMMED RAFIQ, SPL.GP(TAXES) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO.8945 OF 2022 2 P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.8945 of 2022 ------------------------------- Dated this the 24th day of July, 2023 O R D E R This Bail Application is filed under Section 438 of Criminal Procedure Code (Cr.P.C.)
2. Petitioner is the accused in Crime No.511/2022 Cheruthuruthy Police Station. The above case is registered against the petitioner alleging offences punishable under Section 406 IPC based on a complaint preferred by the State Tax Officer (Investigation Brach), State Goods and Services Tax Department, Thrissur.
3. The prosecution case is that the defacto complainant had seized 18,590 Kgs of arecanut worth Rs.65,06,590/- from the petitioner's warehouse located at Varavoor, on which sufficient
BAIL APPL. NO.8945 OF 2022 3 tax was not remitted. Subsequently on 11.10.2020, when the defacto complainant visited the said warehouse to confiscate the seized goods, it was found that the petitioner had moved the goods from the warehouse without the knowledge of the defacto complainant thus committing criminal breach of trust. Annexure A-1 is the FIR.
4. Heard the learned counsel for the petitioner and the learned Special Government Pleader (Taxes).
5.
Counsel appearing for the petitioner reiterated the contentions raised in this Bail application. Counsel submitted that, even in the order of seizure, it is not stated that the arecanut is entrusted to the petitioner. It is submitted that there is no evidence available to show that the arecanut was entrusted to the petitioner and therefore, prima facie, the offence under Section
BAIL APPL. NO.8945 OF 2022 4 406 IPC is not made out. On the other hand, the Special Government Pleader (Taxes) seriously opposed the Bail application and submitted that there is materials to establish that property was entrusted to the petitioner and the seized goods are removed by the petitioner without the knowledge of the defacto complainant. the Special Government Pleader (Taxes) made available the case diary.
6.
This Court perused the case diary. This Court also heard the counsel appearing for the petitioner and the the Special Government Pleader (Taxes).
7.
After hearing both sides, I am of the considered opinion that, this is not a fit case in which this Court has to invoke the powers under Section 438 Cr.P.C. Serious allegation is there against the petitioner. The property is to be recovered for which the custodial interrogation of
BAIL APPL. NO.8945 OF 2022 5 the petitioner is necessary. In such circumstances, the Bail application under Section 438 Cr.P.C. need not be entertained. Moreover, it is submitted that the petitioner is in custody in another case. If that be the case, this Court need not entertain an application under Section 438 Cr.P.C.
The Investigating Officer is free to record the arrest of the petitioner in accordance with law, if necessary.
In the light of the above discussion, the petitioner is not entitled for any relief under Section 438 Cr.P.C.
Accordingly, the Bail application is dismissed.
Sd/- P.V.KUNHIKRISHNAN nvj JUDGE
BAIL APPL. NO.8945 OF 2022 6 APPENDIX OF BAIL APPL. 8945/2022 PETITIONER ANNEXURES ANNEXUREA1 TRUE COPY OF THE FIR NUMBER 511/2022 OF CHERUTHURUTHY POLICE STATION ANNEXUREA2 TRUE COPY OF THE ORDER OF THE SEIZURE DATED 30.07.2021 AS FORM GST INS-02 ANNEXUREA3 TRUE COPY OF THE COPY LETTER BEARING NUMBER NO.IB/CON/1/21-22 FROM THE OFFICE OF THE DEPUTY COMMISSIONER OF STATE TAX (INT) DATED 02.09.2021 WITH ILLEGIBLE
DEPOSITION
GIVEN
TO PETITIONER ANNEXURE A4 TRUE COPY OF THE JUDGMENT DATED 16.09.2022 IN WPC 10817/2022 ANNEXUREA5 CERTIFIED COPY OF ORDER DATED 01-11-2022 OF THE HON'BLE SESSIONS COURT, THRISSUR RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE