IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 Crl.MC.No. 3979 of 2009() ------------------------------------- CP.10/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, KOTTAYAM .................... PETITIONER/ACCUSED NO.1 ------------------------------------------ ADITYA KAMANI, PHOENIX GROUP GLOBAL, AGNI BLOCK SALARPURA, G.R.TECH PARK, WHITE FIELD ROAD, BANGALORE. BY ADV. MR.P.VIJAYA BHANU, MR.M.REVIKRISHNAN. RESPONDENT/COMPLAINANT -------------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3979 of 2009 -------------------------- ORDER Petitioner is the first accused in C.P.No. 10/2008 on the file of Judicial First Class Magistrate's court-III, Kottayam, taken cognizance for the offences under Sections 55(a)(i) and 64A of Abkari Act on Annexure-A final report. Prosecution case is that on 20.3.2008, in violation of the provisions of Abkari Act and without obtaining permit or licence, 25.57 litres of Indian Made Foreign Liquor and 650 ml. Of Foreign Liquor were kept for sale at Radison Plaza Resort, Kumarakom, owned by the petitioner and managed by the second accused General Manager and third accused Bar man and they, thereby, committed the offences. Petitioner was implicated as the first accused on the allegation that he is the owner and Director of Radison Plaza Resort, Kumarakom. This petition is filed under Section 482 of Code of Criminal CRMC 3979/09 2 Procedure to quash the proceedings as against the petitioner contending that he was implicated only as a Director and there is no allegation that petitioner was the person who was in charge of the Resort and criminal liability cannot be vicariously fastened on the petitioner on the ground that he is one of the Directors of the Resort. 2. Petitioner would contend that on getting information that police has registered a case and General Manager and an employee of the Resort were arrested, petitioner sent Annexure-B letter to the Director General of Police, Kerala on 27.3.2008 making it clear that he is the Director of Phoenix Group, having operations over three continents, Asia, Africa and Europe and Laguna Kumarakom (P) Ltd. is one of the companies owning 5 Star Radison Plaza Resort and Spa at Kumarakom, wherein, petitioner is one of the Directors and he has gone there only thrice and the business activities of the petitioner are spread over in three continents and his presence in various locations is not CRMC 3979/09 3 necessary and he is not in any way connected with the day-to-day management and operations of the Resort at Kumarakom and in such circumstances, he cannot be prosecuted, as he cannot be held to be in possession of the liquor seized. It is contended that continuation of the proceedings as against the petitioner is only an abuse of process of the court, when the only material produced by the prosecution, as against the petitioner, is the certificate issued by the Secretary of Kumarakom Grama Panchayat, which shows that the owner of the Resort is the Director of Laguna Kumarakom (P) Ltd. and Annexure-B letter sent by the petitioner himself and in such circumstances, there cannot be a successful prosecution as against the petitioner and therefore, the proceedings is to be quashed. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. Learned Public Prosecutor made available the case diary. 4. As rightly pointed out by the learned counsel appearing for the petitioner, petitioner CRMC 3979/09 4 was implicated as the first accused only on the allegation that Radison Plaza Resort, Kumarakom is owned by the petitioner and he is the Director of the Resort. Annexure-A final report itself shows that the Resort is being managed by the second accused General Manager. Statement of the Secretary, Kumarakom Grama Panchayat, recorded under Section 161 of Code of Criminal Procedure, establishes that he has only certified that the owner of the Resort is the Director, Laguna Kumarakom (P) Ltd. 5. To establish that petitioner is a Director, prosecution is relying only on Annexure-B letter sent by the petitioner. Annexure-B only shows that petitioner admitted that he is the Director of nine companies as well as Phoenix Group, having operations over three continents. It is stated in Annexure-B letter that Laguna Kumarakom (P) Ltd. is a company owning 5 Star Radison Plaza Resort & Spa at Kumarakom. For the reason that petitioner is one of the Directors of the company, he cannot be CRMC 3979/09 5 prosecuted for an offence under Section 55(a) or Section 64A of Abkari Act as Indian Made Foreign Liquor or Foreign Liquor were found in the Resort without a licence or permit, in violation of the provisions of Abkari Act. Petitioner could have been prosecuted if, he, in his capacity as the Director, was responsible for running the Resort. Prosecution has no such case. In such circumstances, vicariously, petitioner cannot be prosecuted for violation of the provisions of Abkari Act, either by the second accused General Manager or by the third accused Bar man. When, even if petitioner is tried, there cannot be a successful prosecution, it is not in the interest of justice to continue the prosecution. Petition is allowed. C.P.No.10/2008 on the file of Judicial First Class Magistrate's Court-III, Kottayam as against the petitioner is quashed. 24th January, 2010 (M.Sasidharan Nambiar, Judge) tkv