IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 Crl.MC.No. 3055 of 2010(G) -------------------------------------- [C.P.NO.10/2009 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-III, KOTTAYAM] .................... PETITIONER/ACCUSED: ---------------------------------- GEORGE.K.THOMAS,KOZHIKKALETH HOUSE, KIZHUKKARA BHAGAM,KOZHANCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADV. SRI.M.REVIKRISHNAN. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/11/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J ........................................... CRL.M.C..NO. 3055 OF 2010 ............................................ DATED THIS THE 1st DAY OF NOVEMBER,2010 ORDER Petitioner is the third accused in C.P.10 of 2009 on the file of Judicial First Class Magistrate-III, Kottayam taken cognizance for the offence under Section 55(a) and (i) and Section 64A of Kerala Abkari Act on Annexure D final report. The prosecution case, as seen from Annexure B final report and Annexure A FIR and the F.I Statement is that on 20.3.2008, getting information that in violation of the provisions of Abkari Act and Rules, foreign liquor is found being sold in `Radison Plaza Resort' Kumarakam, S.I. Of police along with Assistant S.I Of Police, reached the Resort. When they entered the room, it was found that second accused, the Manager of the Resort was serving liquor to foreign tourists. Petitioner was present there as the salesman. Manager was also present. They were arrested finding that liquor was served without a valid license and in violation of the provisions of the Kerala Abkari Act and the Rules framed thereunder. The first accused was implicated as the owner of the Resort. He filed Crl.M.C.3979 of 2009 under Section 482 of Code of Criminal CRMC 3055/2010 2 Procedure to quash the proceedings contending that he is not the owner but is only one of the Directors of the Company and he is a Director in nine other companies and hence he cannot be prosecuted. By order dated 24.2.2010, the case as against the first accused was quashed finding that he cannot be prosecuted in his capacity as Director as he was not responsible for running the Resort. Third accused who is implicated as the salesman filed this petition under Section 482 of Code of Criminal Procedure contending that there is no material as against the petitioner to stand for trial. 2. Learned senior counsel appearing for the petitioner and learned Public Prosecutor were heard. Learned senior counsel pointed out that Anneuxre A statement of S.I of Kumarakam Police Station who conducted search and effected seizure shows that when the police party entered the room where foreign liquor was allegedly found being served to foreign tourists, though presence of the petitioner was noted, there is no allegation that petitioner was either in possession of any foreign liquor or was serving liquor to any of the guests. In such circumstances, continuation of proceedings is only an abuse of process of court. Learned senior counsel also argued that though petitioner was CRMC 3055/2010 3 implicated as the salesman, Anneuxre C, the letter addressed by the Human Resources Manager of the Resort shows that petitioner has been working there as a Guest Service Associate in the Food and Beverages Services Department and Annexure C is sought to be proved by examination of CW7 and in such circumstances, even if petitioner is to undergo the ordeal of a trial, there is no likelihood of a successful prosecution. In such circumstances, in the absence of any material showing the ingredients of the offence as against the petitioner, the case against him is to be quashed. 3. Learned Public Prosecutor submitted that the statement of Assistant S.I of Police who accompanied S.I of Police at the time of search and seizure shows that petitioner was the salesman and he was serving in the room along with the second accused and in such circumstances, the case as against the petitioner cannot be quashed for want of materials. Learned Public Prosecutor also submitted that it is not for this court to appreciate the evidence exercising the jurisdiction under Section 482 of Code of Criminal Procedure and that is a question to be decided by the trial court after recording the evidence. 4. In order to proceed against the petitioner for the offence under CRMC 3055/2010 4 Section 55(a) or 55(i), there should be material to show that petitioner was either transporting, transiting or possessing liquor, with the knowledge that it is imported or exported, as provided under sub- section (a) of Section 55 or that he was found selling or storing for sale any liquor, when the S.I, along with Assistant S.I conducted the search. Annexure A, the FIR shows that case was registered, based on the first information statement of the S.I who conducted search. As per the statement, when the police party entered the room, it was the second accused, who was found serving liquor and not the petitioner. The argument of the learned Public Prosecutor is that the statement of the Assistant S.I recorded under Section 161 of Code of Criminal Procedure shows that when the police party entered the room, it was found that foreign liquor was being served to foreign tourists. True, there is a statement that when the police party entered the room, liquor was being served. But there is no statement that petitioner was found serving the liquor. The only statement is that in the hall, there were foreign tourists as well as petitioners. When the police party asked the name, second accused revealed that he is the Manager and the third accused revealed that he is the salesman. There is no allegation in the CRMC 3055/2010 5 statement that petitioner was found serving liquor. If that be the case, it cannot be said that there is any material to show that petitioner was either selling or stored the liquor for sale or that he was even serving the liquor as provided under Section 55(i). So also there is no material to show that he either imported, exported, transported or transited or possessed liquor as provided under Section 55(a) of the Act. Section 64A though alleged, cannot be attracted as against petitioner, who is neither the owner nor occupier nor the person having control of the room. In such circumstances, even if petitioner is to be directed to undergo the ordeal of trial, there is no likelihood of successful prosecution. In such circumstances, case as against the petitioner can only be quashed. 5. Petition is allowed. Cognizance taken and further proceedings in C.P. 10 of 2009 on the file of Judicial First Class Magistrate-III, Kottayam as against third accused, the petitioner herein is quashed. M.SASIDHARAN NAMBIAR, JUDGE lgk