A. Subair vs State Of Kerala

2. The case of the prosecution was that the appellant was working as a Lower Division Clerk in L-2 Section at the Sub- Regional Transport Office, Attingal. One Manaf had applied for a driving licence which was issued to him but since that was not issued in book form, he made an application to get it converted into book form. Despite several visits made by Manaf, the appellant did not deliver him the driving licence in book form and he was asked to come time and again. On April 24, 1989, when Manaf visited the office, the appellant informed him that the driving licence in book form was ready. The appellant demanded an amount of Rs. 25/- for delivery of the driving licence in book form. Manaf was not prepared to pay the money and he made oral complaint to K. Krishna Pillai (PW-12), Deputy Superintendent working in the Vigilance Unit, Thiruvanathapuram. The oral complaint made by Manaf was reduced in writing (Ext. P-20). PW-12 sent a requisition to the Director, State Institute of Education seeking assistance of two persons to act as independent witnesses. K.Krishnan Kutty (PW-1) and A.S. Abdul Rahim (PW-2) were deputed accordingly. A pre-trap Mahazar (Exh.P-1) was drawn after explaining the details of the trap and 2 the characteristics of phenolphthalein powder as well as its use in the trap. Phenolphthalein powder was applied on currency notes of Rs. 20/- and Rs. 5/- denomination (M.O.1 series). PW-12 also asked the constable R.Vaman (PW-10) to accompany him. PW-12, PW-1, PW-2, PW-10 and Manaf then proceeded to Sub-Regional Transport Office at Attingal, at about 12.30P.M. on April 25, 1989 where the appellant was working. PW-10 at the directions of PW-12 positioned himself to such a vantage point that no sooner the money (M.O.1 series) was accepted by the appellant and the signal was given, he was able to collect that signal and give further signal to PW-12. As soon as Manaf made the signal for the trap party, PW-12 rushed into the office room where appellant was working and in the presence of PW-1 and PW-2, he recovered money (M.O.1 series) from the shirt pocket of the appellant. The appellant also had his own currency notes (M.O.2 series) in the shirt pocket. P. Thankappan (PW-3), N. Thankamony (PW-4), R. Rajan (PW-5), P. Viswanathan (PW-6), K. Jayadevan (PW-7) and A. Sahadevan (PW-8) were also present in the office at that time. A post trap Mahazar (Ext.P-2) was prepared in the presence of PW-1 and PW-2. A solution of sodium carbonate was prepared in a glass tumbler. The appellant's left hand was dipped into solution of 3 sodium carbonate which turned pink. M.O.1 series currency notes as well as one of the M.O.2 series currency notes which was already in the pocket of the appellant answered the phenolphthalein test positively. The left side pocket of shirt also turned pink when sodium carbonate water was applied. Sodium Carbonate bottles after conducting the tests were sealed.

4. PW-12 carried on the investigation; got the site plan prepared by the Village Officer (PW-11) and on completion of investigation sent the investigation papers through Director of Vigilance to W.Joseph Devson (PW-9), Joint Transport Commissioner, Thiruvanathapuram for sanction. PW-9 granted sanction to prosecute the appellant for the offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act, 1988 which ultimately resulted in laying of the charge against the appellant.

24. Consequently, the appeal is allowed. The conviction and sentence of the appellant is set aside and the fine if paid, shall be refunded to the appellant. The bail bonds are cancelled.

........................J (V.S. Sirpurkar) ...

.....................J (R.M. Lodha ) New Delhi, May 26 , 2009 14