Judgment · High Court · 2009

M.C.HARI RANI, J. -----------------------------------------------------Crl. Appeal No.815 OF 2002----------------------------------------------------- DATED THIS THE 27th DAY OF MAY, 2009J U D G M E N THeard the learned Public Prosecutor. The learned counselappearing for the respondent is not present today. Yesterday itwas represented by the learned counsel for the respondent thatanother considered judgment in similar matter has been passedby this Court on 25.5.2006 against the same respondent in threeother appeals (Crl. Appeal Nos.498/99, 499/99 and 541/99) andcopy of that judgment has been handed over to this Court, forperusal. 2.State is the appellant in this appeal. Prosecutionalleged offence under Section 46(i)(a) of the Kerala GeneralSales Tax Act against the respondent. The allegation was that heevaded tax in respect of purchase of rubber to the tune ofRs.1,32,66,000/- during 1991-92. The accused was charged forthe said offence leading to this appeal. The Intelligence Officer ofthe Sales Tax Department with his companion officers obtainedExhibit P1 search warrant to search the house of the Crl.A.No.815/02 -2-accused/respondent, conducted the search and recovered 9incriminating documents which revealed clandestine purchaseevading tax to the above extent. It was disclosed that in respectof the sale revealed by the said documents, no account had beenkept and no sales tax had been paid. Therefore, evasion of taxwas detected and charge sheet was filed alleging offencepunishable under Section 46(i)(a).3.It is revealed from the evidence that none of theincriminating documents so recovered based on Exhibit P11search had ever been brought in evidence. Therefore, theprosecution in this case has been conducted in a negligentmanner. The Officer concerned, who knew about the statute andwho had been entrusted the power to conduct search had notwhile preparing Exhibit P11 search mahazar complied with thenecessary requirement in terms of Section 100 Cr.P.C. byprocuring two independent witnesses. When there is flagrantviolation of statutory provision in that regard, it cannot be statedthat there was a proper search and seizure of incriminatingdocuments. In such circumstances, the court below had rightly Crl.A.No.815/02 -3-acquitted the accused and no interference is required in thisappeal as prayed for.In the result, this appeal is dismissed. M.C.HARI RANI, JUDGE.dsn