IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 Crl.MC.No. 244 of 2008(A) ---------------------------------- CC.738/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD ............................................. PETITIONER(S): ACCUSED: -------------------------------------- KUMARAN, S/O.KRISHNAN, PARAKKOTTIL VEEDU P.O.KOTTAPPURAM, KARIMBUZHA. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 244 OF 2008 ------------------------------------------ Dated 9th September 2009 O R D E R Petitioner is the first accused in C.C.731/2004 on the file of Judicial First Class Magistrate, Chavakkad. Petitioner was the licensee of Sopanam Bar, Guruvayur. Second accused, the manager and accused 3 to 6, the employees. Prosecution case was that in violation of the conditions of license on, 21/9/2001 at about 1.30 p.m accused 3 to 6 sold liquor on the day of death anniversary of Sreenarayana Guru, when sale of liquor was prohibited, and thereby committed offences under Sections 56(b) and 63 of Abkari Act and Rule 28(A)(iv) of Foreign Liquor Rules. As petitioner was absconding, other five accused were tried by the learned Magistrate after splitting up and re-filing the case as against petitioner as C.C.738/2007. On the evidence, accused 2 to 6 were acquitted under Annexure-B judgment. This petition is filed under Section 482 of Code of Criminal Procedure contending that in view of the order of acquittal as CRMC 244/08 2 against the other co-accused, no purpose will be served by directing the petitioner to stand for trial when ultimately there is no chance for conviction. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for petitioner submitted that even according to the prosecution when the final report was filed, petitioner was aged 70 years and the Bar was managed by second accused, the manager, and prosecution case is only that in violation of the conditions employees sold liquor on the death anniversary day of Sreenarayana Guru and thereby committed offences under Sections 56(b) and 63 of Abkari Act and Rule 28(A) (iv) of Foreign Liquor Rules and when all the other accused were already acquitted and the case is only that there was sale by accused 2 to 6, in violation of the license conditions, even if petitioner is to be tried, there is no chance for a conviction and hence, the case as against petitioner is to be quashed. 4. Learned Public Prosecutor submitted that learned Magistrate on appreciation of evidence acquitted the accused under Annexure-B judgment as PW1 CRMC 244/08 3 was not available for further examination, after his chief examination in part and on that ground the case cannot be quashed. 5. As rightly pointed out by the learned counsel, prosecution has no case that petitioner was present at the time when the alleged sale was conducted. Annexure-B judgment shows that prosecution case is that in violation of the conditions accused 2 to 6 sold the liquor on the death anniversary day of Sreenarayana Guru. Prosecution did not establish that accused 2 to 6 sold liquor on that day as alleged and they were acquitted. Question is in the light of that finding, even if petitioner is to be tried, whether there is any likely hood of a conviction. As there is no case that petitioner was present there or participated in the sale and the only case was that sale was by accused 2 to 6 and it was found that there was no such sale, even if petitioner is to be tried he cannot be convicted for the alleged sale by accused 2 to 6. More over, as pointed out by the learned counsel appearing for petitioner, examination of PW1 as seen from Annexure-B judgment, which itself was not completed show that sale was in favour of one CRMC 244/08 4 Rafeeque, who was not even cited as a witness. In such circumstances, it will be a futile exercise if petitioner is to be tried in this case, as there is no chance for a successful prosecution. Hence, it is not in the interest of justice to continue the prosecution. Petition is allowed. C.C.738/2007 on the file of Judicial First Class Magistrate, Chavakkad is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.