IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 CRL.A.No. 815 of 2002(C) ------------------------ ST.1552/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... APPELLANT: COMPLAINANT: ------------------------------ STATE OF KERALA, REPRESENTED BY INTELLIGENCE OFFICER, SQUAD NO.IV, A.I.T. & S.T. DEPARTMENT, OFFICE OF THE DEPUTY COMMISSIONER(INTELLIGENCE), BOARD OF REVENUE (TAXES) TRIVANDRUM BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR RESPONDENT: ACCUSED: --------------------------- T.SASIKUMAR, S/O. THANKACHAN, K.P. V/429, VENKULATHU VILAKATHU, PANDARAVILA, KANHIRAMKULAM. ADV. SRI.M.C.MADHAVAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.C.HARI RANI, J. ----------------------------------------------------- Crl.Appeal No.815 OF 2002 ----------------------------------------------------- DATED THIS THE 27th DAY OF MAY, 2009 J U D G M E N T Heard the learned Public Prosecutor. The learned counsel appearing for the respondent is not present today. Yesterday it was represented by the learned counsel for the respondent that another considered judgment in similar matter has been passed by this Court on 25.5.2006 against the same respondent in three other appeals (Crl.Appeal Nos.498/99, 499/99 and 541/99) and copy of that judgment has been handed over to this Court, for perusal. 2. State is the appellant in this appeal. Prosecution alleged offence under Section 46(i)(a) of the Kerala General Sales Tax Act against the respondent. The allegation was that he evaded tax in respect of purchase of rubber to the tune of Rs.1,32,66,000/- during 1991-92. The accused was charged for the said offence leading to this appeal. The Intelligence Officer of the Sales Tax Department with his companion officers obtained Exhibit P1 search warrant to search the house of the Crl.A.No.815/02 -2- accused/respondent, conducted the search and recovered 9 incriminating documents which revealed clandestine purchase evading tax to the above extent. It was disclosed that in respect of the sale revealed by the said documents, no account had been kept and no sales tax had been paid. Therefore, evasion of tax was detected and charge sheet was filed alleging offence punishable under Section 46(i)(a). 3. It is revealed from the evidence that none of the incriminating documents so recovered based on Exhibit P11 search had ever been brought in evidence. Therefore, the prosecution in this case has been conducted in a negligent manner. The Officer concerned, who knew about the statute and who had been entrusted the power to conduct search had not while preparing Exhibit P11 search mahazar complied with the necessary requirement in terms of Section 100 Cr.P.C. by procuring two independent witnesses. When there is flagrant violation of statutory provision in that regard, it cannot be stated that there was a proper search and seizure of incriminating documents. In such circumstances, the court below had rightly Crl.A.No.815/02 -3- acquitted the accused and no interference is required in this appeal as prayed for. In the result, this appeal is dismissed. M.C.HARI RANI, JUDGE. dsn