{"id":207337,"date":"2007-10-22T00:00:00","date_gmt":"2007-10-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajesh-vs-state-of-kerala-represented-by-the-on-22-october-2007"},"modified":"2015-11-03T23:06:39","modified_gmt":"2015-11-03T17:36:39","slug":"rajesh-vs-state-of-kerala-represented-by-the-on-22-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajesh-vs-state-of-kerala-represented-by-the-on-22-october-2007","title":{"rendered":"Rajesh vs State Of Kerala Represented By The on 22 October, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Rajesh vs State Of Kerala Represented By The on 22 October, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C) No. 10793 of 2007(I)\n\n\n1. RAJESH,S\/O.RAMACHANDRAN,JAYESH BHAVAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA REPRESENTED BY THE\n                       ...       Respondent\n\n2. ASST.EXCISE COMMISSIONER,OFFICE OF THE\n\n                For Petitioner  :SRI.N.DHARMADAN (SR.)\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice K.R.UDAYABHANU\n\n Dated :22\/10\/2007\n\n O R D E R\n                          K.R. UDAYABHANU, J.\n\n\n   ===================================\n\n\n        W.P.(C).NOS.24298 OF 2006, 10793 OF 2007 &\n\n\n               CONTEMPT CASE (C)NO. 529 OF 2007\n\n\n     =================================\n\n\n                DATED THIS THE 22nd October 2007\n\n\n                                  JUDGMENT\n<\/pre>\n
      The petitioner has alleged that he was illegally arrested on<\/p>\n
11-2-2006 and his Maruhi Zen   car bring   No.KL-3N 1283 seized<\/p>\n
at 6.45 a.m. from his house when it was parked in the   portico<\/p>\n
alleging  offences   under Sections  8(1)   and   (2)   of   the   Abkari   Act<\/p>\n
solely   on   account   of   his   failure   to   oblige   the   third   respondent,<\/p>\n
Sub Inspector of Police, Adoor police station when he demanded<\/p>\n
a sum of Rs.50,000\/- as bribe.   According to him,   it is a newly<\/p>\n
purchased    car  and it  was  never used  for   transporting  of   spirit.<\/p>\n
The   Sub   Inspector     made   a   surprise   visit   to   the   house   of   the<\/p>\n
petitioner on   the particular day and time along with Constables<\/p>\n
and   seized   the   car   when   he   was   not   in   the   house   and   used<\/p>\n
abusive   language     and   had   a   scuffle   with     Sri.   Ramachandran,<\/p>\n
father of the petitioner.     Just before   the seizure the petitioner<\/p>\n
WPC 24298\/06 & CONN.CASES               -2-\n<\/p>\n
was arrested from the nearby temple where he was attending the<\/p>\n
festival.     When   the   petitioner’s   father   along   with   some   of   the<\/p>\n
neighbours went to the police station for release of the car, the<\/p>\n
Sub   Inspector   demanded   a   sum   of   Rs.50,000\/-   as   illegal<\/p>\n
gratification and threatened that if he did not oblige,   an  abkari<\/p>\n
case     will   be   registered   against   the   petitioner.     Ext.P1   is   the<\/p>\n
complaint   filed   by   the   petitioner’s   father   before   the<\/p>\n
Superintendent   of   Police.     The   residents   of   the   locality   has<\/p>\n
submitted   a   mass   petition       to   have   an   enquiry   conducted<\/p>\n
through   an   independent     agency   or   Superintendent   of   Police,<\/p>\n
Human  Rights  Commission,  Director  General   of  Police,  Vigilance<\/p>\n
Department, Home Secretary etc.   The copy of the complaint is<\/p>\n
Ext.P2.  The petitioner and his father had applied to get  release<\/p>\n
of   the   car   vide   Ext.P3.   The   Sub   Inspector     of   Police   registered<\/p>\n
Crime  No.104\/2006   under  Section   8(1)   &   (2)   of   the   Abkari   Act<\/p>\n
against   the   petitioner   alleging   illicit   transportation   of   20   litres<\/p>\n
spirit.  Copy of the F.I.R. is Ext.P2.  The petitioner  was released<\/p>\n
on bail   as per the order of this Court vide Exts.P5 and P5(a) (I<\/p>\n
find     that   Ext.P5   is   with   respect   to   Crime   No.104   of   2006   and<\/p>\n
WPC 24298\/06 & CONN.CASES              -3-\n<\/p>\n
Ext.P5(a) is with respect to Crime No. 103\/2006). Exts.P6 and P7<\/p>\n
are   said   to   be     photocopies   of   the     covers   in   which   he   had<\/p>\n
allegedly sent notice to the witnesses in the crime case claiming<\/p>\n
compensation and the same were returned with the endorsement<\/p>\n
“not known – unclaimed returned”.  It is pointed out that the Sub<\/p>\n
Inspector\/3rd respondent  submitted a report to the  Judicial First<\/p>\n
Class   Magistrate,   Adoor   stating   that   the   petitioner   is   the   4th<\/p>\n
accused   in   other  pending  cases,   i.e.   Crime  Nos.101\/06,   102\/06<\/p>\n
and   103\/06.     Exts.P8,   P8(a)   and   P8(b)   are   the   above   reports.<\/p>\n
According to the petitioner, he was deliberately harassed and he<\/p>\n
has not involved   in the other offences.   It is also   alleged that<\/p>\n
the Sub Inspector of Police also arrested and assaulted  the elder<\/p>\n
brother of the petitioner, who reported   to the Vigilance Dy.S.P.<\/p>\n
about     the   demand   made   by   the   Sub   Inspector   for   a   sum   of<\/p>\n
Rs.50,000\/-. Ext.P9 and P10 are the complaints filed by the elder<\/p>\n
brother of the petitioner to the Dy.S.P. Adoor, Dy.S.P. Vigilance<\/p>\n
respectively   with   respect   to   the   demands   for   bribe   by   the<\/p>\n
subordinates  of  the third  respondent.   According  to  him,  all the<\/p>\n
cases are   set up on  account of  personal  animosity of the  third<\/p>\n
WPC 24298\/06 & CONN.CASES                -4-\n<\/p>\n
respondent and due to the failure of the petitioner  to pay a sum<\/p>\n
of Rs.50,000\/- as demanded by the third respondent.   Witnesses<\/p>\n
cited   are   fictitious   persons.     He   has   sought     for   a   direction   to<\/p>\n
respondents 1,2 and 4, i.e. the  Home Secretary, Assistant Excise<\/p>\n
commissioner,   Pathanamthita   and   Deputy   Superintendent   of<\/p>\n
Police (Vigilance), Pathanamthitta to dispose of Exts.P1 to P3 and<\/p>\n
P9 & P10 complaints and representations filed by him and others<\/p>\n
and also for a independent enquiry by the Vigilance Department<\/p>\n
against  the third respondent\/Sub Inspector and for a direction to<\/p>\n
release     Maruthi   Zen   car   on   personal   bond   and   also   to   quash<\/p>\n
Ext.P4 F.I.R. in Crime No.104\/2006 and Exts.P8, P8(a) and P8(b)<\/p>\n
reports,   i.e.   the   reports     implicating   the   petitioner   in   Crime<\/p>\n
Nos.101\/06,102\/06 and 103\/06. The petitioner has also produced<\/p>\n
Exts.P11,  P11(a)  to P11(c), i.e.  the police reports  dated 7-3-06<\/p>\n
which was corrected as 8-3-06 incorporating the petitioner as an<\/p>\n
additional   accused   in   three   other   cases,   i.e.   101\/06,   102\/06   &<\/p>\n
103\/06 which according  to him have been submitted in order to<\/p>\n
get his pre-trial detention extended. As per the above reports   in<\/p>\n
the   above   crimes     the   petitioner   has   been   implicated     as   4th<\/p>\n
WPC 24298\/06 & CONN.CASES                 -5-\n<\/p>\n
accused.   The allegation in Crime No.101\/2006 is that 1.5 litres<\/p>\n
of illicit arrack in   a bottle   was seized   from   accused   1 and 2<\/p>\n
while they were travelling in a motor cycle   bearing No. KL-03 F<\/p>\n
3866   at   11   p.m.   on  10-2-2006.     The   report     is   that   the  above<\/p>\n
illicit  liquor was entrusted by accused 3 and 4 to the  2nd accused<\/p>\n
for sale.   In Crime No.102\/06 the allegation is that   10 litres   of<\/p>\n
illicit   arrack  kept  for  sale in  the  house of    the  1st  accused  was<\/p>\n
seized at 2.30 a.m. on 11-2-2006.   The contraband is alleged to<\/p>\n
have been entrusted to the 1st  accused   by accused 4 and 5.   In<\/p>\n
Crime   No.103\/06,   10   litres   of   illicit   arrack   kept   for   sale   in   the<\/p>\n
house   of the 1st  accused was seized at 3.30 a.m. on 11-2-2006<\/p>\n
which   was   allegedly   entrusted   to   the   1st  accused   by   accused   4<\/p>\n
and 5.   It is alleged that in   three reports, i.e. Exts.P11, P11(a)<\/p>\n
and P11(b), the date mentioned as 7-3-06 is corrected as 8-3-06.<\/p>\n
On   15-3-2006   the   Sub   Inspector   of   Police   again   filed     another<\/p>\n
report Ext.P11(c) also with the same objective alleging   theft of<\/p>\n
another Maruthi  car  vide crime No.1192\/05. The report is dated<\/p>\n
15-3-06 wherein the offences alleged   are  under Sections   379,<\/p>\n
411, 201 read with section 34 I.P.C. wherein also the petitioner<\/p>\n
WPC 24298\/06 & CONN.CASES                -6-\n<\/p>\n
has been incorporated as the 4th accused.  According                    to         the<\/p>\n
petitioner,   the   above   charges   have   been   filed   to   prevent   the<\/p>\n
petitioner   from   being   released   on   bail   as   per   the   order   of   this<\/p>\n
Court.   The   allegation     in   Ext.P11(c)   is   that   the   petitioner<\/p>\n
purchased   Maruthi   car   KL-2   R   2122   with   knowledge   that   the<\/p>\n
same is a stolen car.  According to him he has not purchased any<\/p>\n
such   car   from   accused     1   and   2.     According   to   him,   as   a<\/p>\n
consequence of the above  reports,  he was under custody  upto<\/p>\n
30-3-2006.\n<\/p>\n<\/p>\n
      2.   The   petitioner   has   also   filed   an   application   seeking   to<\/p>\n
amend the writ petition in order to challenge Ext.P12 order issued<\/p>\n
by   the   2nd  respondent,   i.e.   the   Assistant   Excise   Commissioner,<\/p>\n
Pathanamthitta  issuing notice of confiscation under Section 67 C<\/p>\n
of the Abkari Act.  It is pointed out that this Court as per order in<\/p>\n
I.A.No.14029\/2006   issued    a   direction   for   immediate   release   of<\/p>\n
Maruthi   Zen   car   bearing     registration   No.KL-3N   1283   and<\/p>\n
subsequently this Court as per order dated   6-11-2006 initiated<\/p>\n
suo  motu   contempt   proceedings   against     respondents     2   and  3<\/p>\n
for     violation   of   the   order   of   this   Court   dated     29-9-2006   to<\/p>\n
WPC 24298\/06 & CONN.CASES                -7-\n<\/p>\n
release     the   car.     It   is   during   the   pendency   of   the   above<\/p>\n
proceedings that Ext.P12 notice dated 1-3-2007 has been issued<\/p>\n
by     the   2nd  respondent       mentioning     that   the   car   involved   in<\/p>\n
Crime No.104\/06 contained more than 94% of  ethyl alcohol and<\/p>\n
hence is liable to be confiscated under Section 67C of the Abkari<\/p>\n
Act.     According   to   the   petitioner,   Ext.P12   notice   is   issued   as   a<\/p>\n
retaliatory   measure   to   harass   him.       The   petitioner     has   also<\/p>\n
sought   for   a     writ     or   direction   to   quash   Ext.P12     and   further<\/p>\n
proceedings contemplated with respect to the car.<\/p>\n
      3.   The   2nd  respondent,   Assistant   Commissioner   has   filed   a<\/p>\n
counter to the amendment pointing out  that Ext.P12 was issued<\/p>\n
bona fide and that the petitioner has got   sufficient   opportunity<\/p>\n
to submit his explanation before him  as reply to the show cause<\/p>\n
notice   and   that   confiscation   order   will   be   passed   only   after<\/p>\n
verifying     the   explanations   and   relevant   documents.     It   is<\/p>\n
submitted   that   no   reply   or     documents   were   produced   by   the<\/p>\n
petitioner.\n<\/p>\n<\/p>\n
      4.   The   4th  petitioner,   Dy.S.P.   Vigilance   &   Anti   Corruption<\/p>\n
Bureau,   Pathanamthitta   has   filed   an   affidavit     stating   that   Sri.<\/p>\n
WPC 24298\/06 & CONN.CASES               -8-\n<\/p>\n
Jayesh,   the   brother   of   the   petitioner   in   the   writ   petition     had<\/p>\n
came   to   the   office   of   the   Vigilance   &   Anti   Corruption   Bureau<\/p>\n
(VACB), Pathanamthitta   on     23-3-2006 and preferred   an   oral<\/p>\n
complaint   and   based   on   the   same   Vigilance   Case,<\/p>\n
V.C.No.1\/06\/PTA under Section  7, 13(2) read with Section 13(1)<\/p>\n
(d) of the P.C.Act was registered on 23-3-2006.  The allegation of<\/p>\n
Sri   Jayesh   was   that   himself   and   his   friend   were   taken   into<\/p>\n
custody     at   6   p.m.   on   12-2-2006   near   Adoor   by   Sri.   Girish<\/p>\n
P.Saradhy,   former   S.I.   of   Police   Adoor   in   connection   with   the<\/p>\n
detection of a stolen Maruthi  car  bearing registration No. KL-02<\/p>\n
L 1638 in which Crime No.108\/06 under Section  102Cr.P.C. was<\/p>\n
registered   by Adoor  police and that  Sri.  Jayesh   and  his  friend<\/p>\n
were released  in the night of      12-2-2006. It is alleged that the<\/p>\n
G.D.charge   Head   Constable   Sri.L.Badarukutty,   HCN   1193   of<\/p>\n
Adoor police station collected mobile phone of Sri. Jayesh at the<\/p>\n
time  of  releasing    him    and  that   Sri.  Badarukutty  and  Sri   Sabu<\/p>\n
Henry PCN 1059  of  Adoor  police    station  has  collected bribe on<\/p>\n
12-2-2006   at   the   time   of   releasing   them   and   at   the   time   Sri.<\/p>\n
L.Badarukutty,   HCN   1193     again   demanded     Rs.5000\/-   on<\/p>\n
WPC 24298\/06 & CONN.CASES                -9-\n<\/p>\n
21-3-2006 and later reduced  the bribe amount to Rs.1000\/- and<\/p>\n
he     agreed   to   accept   the   bribe   money   on   23-3-2006   at   Mariya<\/p>\n
Hospital,   Adoor   for   returning   the   mobile   phone   to   Jayesh.   On<\/p>\n
registration   of     V.C.No.1\/06\/PTA,   a   trap   was   arranged   by   the<\/p>\n
Deputy   Superintendent   of   Police,   VACB   with   the   assistance     of<\/p>\n
two   gazetted   officers   at     Mariya   hospital,   Adoor   on   23-3-2006.<\/p>\n
Sri. Badarukutty came   to Mariya Hospital,   Adoor on 23-3-2006<\/p>\n
and   talked   with   Sri.   Jayesh   and   left     the   hospital   without<\/p>\n
accepting    the  bribe  money  of  Rs.1000\/-.  Since    the  trap  could<\/p>\n
not   materialize,     the   VACB   party   returned.       Sri.   Badarukutty,<\/p>\n
HCN     1193     returned   the   mobile   phone   to   Jayesh   as   per   the<\/p>\n
instruction   of   Girish   P.   Saradhy,   S.I.   of   police.     The   trap   case<\/p>\n
No.1\/06\/PTA is under investigation.   After filing of the trap case<\/p>\n
on     24-4-2006   Sri   Jayesh   came   to   VACB   police   station,<\/p>\n
Pathanamthitta   and   presented   a   petition,   i.e.   Ext.P10   raising<\/p>\n
allegations   against   the   present   Sub   Inspector   of   Adoor   police<\/p>\n
station\/3rd respondent alleging that on account of non-payment of<\/p>\n
bribe   of   Rs.50,000\/-,   the   third   respondent   had   booked   a   false<\/p>\n
Abkari   Case     No.104\/06   of   Adoor   police   station   on   12-2-2006<\/p>\n
WPC 24298\/06 & CONN.CASES              -10-\n<\/p>\n
against Sri Rajesh, the brother  of Jayesh alleging possession  of<\/p>\n
35 litres of illicit arrack in the Maruthi Zen car being registration<\/p>\n
No. KL 3 N 1283.  The F.I. statement in V.C.1\/06 did not  contain<\/p>\n
any   allegations   against   the   3rd  respondent.   The   allegations   in<\/p>\n
V.C.1\/06\/PTA was   against  Sri. Badarukutty and Sri.Sabu Henry<\/p>\n
in connection with  the seizure of a  stolen Maruthi car No.KL 2 N<\/p>\n
1638  and  Crime No. 108\/06 was registered on  12-2-2006.   It<\/p>\n
is   submitted   that   the   additional   allegations   raised   by   Jayesh   in<\/p>\n
Ext.P10 related to Abkari case No.102\/06.   It is stated that the<\/p>\n
above case is an Abkari case in which the VACB  is not competent<\/p>\n
to investigate.  It is submitted  during the course of  investigation<\/p>\n
on V.C.1\/06\/PTA, the third respondent   was questioned and that<\/p>\n
he   denied   the   allegations.   It   is   also   pointed   out   that   Crime<\/p>\n
No.104\/06 of Adoor police station was also charge sheeted before<\/p>\n
the court.\n<\/p>\n<\/p>\n
      5. The petitioner has filed a reply affidavit alleging that the<\/p>\n
statements in the counter affidavit   are false with respect to the<\/p>\n
complaint   made   in   Ext.P2   which   is   the   complaint   by   the     local<\/p>\n
residents.     According   to     him,   4th  respondent   does   did   conduct<\/p>\n
WPC 24298\/06 & CONN.CASES                 -11-\n<\/p>\n
any enquiry with respect to the above complaint. Ext.P2 has been<\/p>\n
addressed   to   the   Director   General   of   Police,   Home   Secretary,<\/p>\n
and   Human   Rights   Commission   etc.     Postal   receipts   have   also<\/p>\n
produced as Ext.P13.  He has sought for an independent enquiry<\/p>\n
vide   I.A.No.14029\/07.   It   is   also   alleged   that   in   Ext.P1   the<\/p>\n
allegations   that   the   3rd  respondent   and     Sri.   Badarukutty,   HCN<\/p>\n
and   Sabu   Henry   and   Raghu   PCs.   are   in   possession   of<\/p>\n
disproportionate wealth far in excess  of their income.  The above<\/p>\n
allegation can be enquired into by the vigilance department.   He<\/p>\n
has also produced Ext.P4 of the Vigilance Manual. The allegation<\/p>\n
of demand on bribe of Rs.50,000\/-by the 3rd  respondent can be<\/p>\n
ascertained  by holding  enquiry  in the mass petition of residents<\/p>\n
in   the   locality.     Affidaivt     of   one   of   the   persons   is   produced   as<\/p>\n
Ext.P15 alleging that   the Vigilance has not questioned anybody<\/p>\n
in this regard.\n<\/p>\n
\nC.O.C.No.529\/2007:\n<\/p>\n<\/p>\n
       6. The petitioner has sought for  invoking Section 2(b) read<\/p>\n
with   Section   12   and   14   of   the   Contempt   of   Courts   Act   1971<\/p>\n
against   the   respondents     as   Ext.P12   notice   has   been   issued   by<\/p>\n
WPC 24298\/06 & CONN.CASES                 -12-\n<\/p>\n
the   first   respondent\/Assistant   Excise   Commissioner   seeking   to<\/p>\n
invoke Section 67 C of the Abkari Act, i.e. seeking to show cause<\/p>\n
as   to   why   the   vehicle   should   not   be   confiscated.   It   is   his<\/p>\n
contention   that   respondents   have   committed   contempt   as<\/p>\n
proceedings   in     W.P.(C)   No.24298\/2006   seeking   to   quash   the<\/p>\n
proceedings initiated under Sections 8(1) and 8(2) of the Abkari<\/p>\n
Act   initiated   against   him   and   also   seeking   to   order   an<\/p>\n
investigation by the VACB and also  interim order of this Court to<\/p>\n
release the car and the suo motu contempt  proceedings initiated<\/p>\n
by this Court was pending.\n<\/p>\n<\/p>\n
       7. The first respondent\/Assistant   Excise Commissioner has<\/p>\n
filed a counter.   It is admitted that he has issued Ext.P12 notice<\/p>\n
dated   1-3-2007   under   Section   67   C   of   the   Abkari   Act.   It   is<\/p>\n
submitted   that   vide   Crime   No.104\/2006   of   Adoor   police   station<\/p>\n
the   seizure   of   the   vehicle     was   reported   to   him     being     the<\/p>\n
authorised   officer     by   the   2nd  respondent   herein,   i.e.   the   Sub<\/p>\n
Inspector   of   Police.     It   is   pointed   out   that   Section   67   B   of   the<\/p>\n
Abkari Act mandates the officer  seizing the vehicle, i.e. used for<\/p>\n
committing   the   offence   under   the   Abkari   Act,   without<\/p>\n
WPC 24298\/06 & CONN.CASES               -13-\n<\/p>\n
unreasonable   delay     to   produce   the   same   before   the   officer<\/p>\n
authorised   by   the   Government   in   this   behalf.     It   is   pointed   out<\/p>\n
that the Sub Inspector has reported the  seizure of the vehicle to<\/p>\n
him.     It   is   pointed   out   that   he   has   received     chemical   analysis<\/p>\n
report which  would  show that the material  objects seized   from<\/p>\n
the car is spirit. It was in the above circumstances notice under<\/p>\n
Section 67 C of the Abkari Act was issued.  It is pointed out that<\/p>\n
no   final   order   has   been   passed     in   the   above   matter.     It   is<\/p>\n
submitted that no orders of the court has been  flouted and that<\/p>\n
there was no intention   to do so and that he has not    disobeyed<\/p>\n
the orders of this Court.\n<\/p>\n<\/p>\n
      8.   The   petitioner   has   filed   a   reply   affidavit   alleging   that<\/p>\n
Ext.P12 has been issued on 1-3-2007 within a short time of the<\/p>\n
interim   order   dated     29-9-2006   directing   him   to   release   the<\/p>\n
vehicle and that the applications filed by him before the Human<\/p>\n
Rights Commission, Vigilance Department, Home Department and<\/p>\n
proceedings   initiated             in   W.P.(C)No.   24298\/2006   and<\/p>\n
C.C.C.No.1460\/2006   were   pending.     It   is   alleged   that     the<\/p>\n
Assistant   Excise   Commissioner\/1st  respondent   is   conducting<\/p>\n
WPC 24298\/06 & CONN.CASES               -14-\n<\/p>\n
parallel proceedings which amounted to contempt of court.   It is<\/p>\n
also   pointed   out   that   he   had     refused   to   release   the   car   till<\/p>\n
17-10-2007.  According to him,  the sample sent for analysis was<\/p>\n
not recovered from his car. It is pointed out that the respondent<\/p>\n
ought   to   have   obtained   permission   from   the   court   to   initiate<\/p>\n
confiscation proceedings   and that   the steps   initiated   are just<\/p>\n
vindicative.\n<\/p>\n
\nW.P.(C)NO. 10793\/2007<\/p>\n
      9.   The   petitioner   has   sought   for     getting   quashed<\/p>\n
Ext.P6\/P12 notice issued   by the 2nd  respondent\/Assistant Excise<\/p>\n
Commissioner   initiating     steps   to   confiscate   car   KL-3   N   1283<\/p>\n
involved   alleging   that   Ext.P6   has   been   issued   only   as   a<\/p>\n
vindicative   measure     and   that   no     incriminating     articles   have<\/p>\n
been   recovered   from   his   car   on   2-11-2006   and   that     the   court<\/p>\n
had ordered to release of the car and the  contempt proceedings<\/p>\n
were   pending   and   that   the   witnesses   cited   in   the   case   are<\/p>\n
fictitious   persons   and   that   the   actions   of   the   respondent<\/p>\n
amounted   to   abuse   of   process   of   the   court   and   that     entire<\/p>\n
charges including     in the F.I.R. are false and fabricated     as he<\/p>\n
WPC 24298\/06 & CONN.CASES                -15-\n<\/p>\n
did not heed to his demand to pay Rs.50,000\/-as bribe.<\/p>\n
       10.   I   find  that   as   per   order  dated   25-5-2007   in  C.C.C.No.<\/p>\n
1460\/2006,   suo   motu     contempt   proceedings   initiated   by   this<\/p>\n
Court.  The further proceedings were closed  on the respondents<\/p>\n
tendering an unconditional apology  and with a severe reprimand<\/p>\n
as   it   appeared   that   the   respondents   deliberately   delayed   the<\/p>\n
compliance   of   the   interim   order   of   this   Court   to   release     car<\/p>\n
seized   by   the   Sub   Inspector   of   Police,   Adoor.     I   find   that   the<\/p>\n
proceedings initiated in the above suo motu contempt case would<\/p>\n
not   amount   to   a   reflection   on   the   merits   of   the   case.     The<\/p>\n
petitioner has produced the R.C. of the car and  further detention<\/p>\n
of   the   car   would   not   have   served     any   purpose   in   the<\/p>\n
circumstances of the case and it was ordered to be released   on<\/p>\n
executing   bond for Rs.50,000\/- with two solvent sureties   for a<\/p>\n
like sum   and on condition that he shall produce the car before<\/p>\n
the  authorities   whenever  directed.    Regarding the  merits   of  the<\/p>\n
case,   it   would   not   be   possible     for   this   Court   to   enter   into   a<\/p>\n
finding   as   the   same   can   be   arrived   at   only   after   evidence   is<\/p>\n
adduced.\n<\/p>\n<\/p>\n
WPC 24298\/06 & CONN.CASES               -16-\n<\/p>\n<\/p>\n
      11. The allegation of the petitioners that the car has been<\/p>\n
seized and that case has been fabricated only on account of the<\/p>\n
enmity   on   the   part     of   the   Sub   Inspector     of   Police   as   the<\/p>\n
petitioner did not oblige to his demand for giving   him an illegal<\/p>\n
gratification   of   Rs.50,000\/-.   Ext.P1   is     the   petition   filed   by   the<\/p>\n
father of the petitioner before the Superintendent of Police raising<\/p>\n
the above allegations and the same is dated   21-2-2006 as per<\/p>\n
the     date   mentioned   in   Ext.P1   in   W.P.(C)No.24298\/2006.     The<\/p>\n
date of   the   detection of the   offence as per the F.I.R. is dated<\/p>\n
11-2-2006.  Ext.P2, the complaint  by the local residents is dated<\/p>\n
6-4-2006. Ext.P9, the compliant filed by the elder brother of the<\/p>\n
petitioner   against   the   Head  Constable   and   the   police   constable,<\/p>\n
i.e. Badarukutty and Sabu Henry is dated 3-4-2006.  Ext.P10, the<\/p>\n
complaint   by the elder brother of the petitioner to the Dy.S.P.,<\/p>\n
VACB, Pathanamthitta contains  no date.  The respondents in the<\/p>\n
above complaint are the  Sub Inspector of Police, Head Constable<\/p>\n
and   the   Police   Constable.     All   the   above   complaints   have   been<\/p>\n
admittedly   submitted   before   the   authorities   subsequent   to   the<\/p>\n
date of  Crime No. 104\/2006 registered against the petitioner.  It<\/p>\n
WPC 24298\/06 & CONN.CASES           -17-\n<\/p>\n
is also seen from the counter affidavit filed by the 4th respondent,<\/p>\n
Dy.S.P.,   VACB,   Pathanamthitta   that   on   the   basis   of   the   oral<\/p>\n
complaint of the elder brother of the petitioner on 23-3-2006 the<\/p>\n
Vigilance  registered Case No. 1\/06\/PTA under various sections of<\/p>\n
the Prevention of Corruption Act and a trap was laid for the Head<\/p>\n
Constable who allegedly sought for a bribe of Rs.5000\/-, but the<\/p>\n
trap did not succeed and the matter     is pending enquiry and in<\/p>\n
the   matter,   the   Sub   Inspector   was   also   questioned.     It   is<\/p>\n
submitted   that   there   was   no   allegation   of   demand   of   bribe<\/p>\n
against the Sub Inspector   then.   It is also  stated that  the Sub<\/p>\n
Inspector   has   registered  Crime  No.104\/06  under  the  Abkari   Act<\/p>\n
and   hence     the   Vigilance   authorities   are   not   competent   to<\/p>\n
investigate  the particular case.  I find that the above  statement<\/p>\n
of 4th  respondent cannot be said to be proper.   The allegation is<\/p>\n
that he demanded bribe and the investigation with respect to the<\/p>\n
same would not amount to investigating the abkari offence.<\/p>\n
      12. I find that the allegation sought to be investigated and<\/p>\n
that has been raised   in the petition filed   by the local residents<\/p>\n
which   has   been   submitted   before   the   various   authorities   also<\/p>\n
WPC 24298\/06 & CONN.CASES               -18-\n<\/p>\n
relates to disproportionate assets owned by   the Sub Inspector,<\/p>\n
Head   Constable   and   two   police   constables,   but   no   prima   facie<\/p>\n
evidence in this regard has been submitted.\n<\/p>\n<\/p>\n
      13.   It   has   also   to   be   noted   that   as   per   Exts.P11,   P11(a),<\/p>\n
P11(b)   and   P11(c)   produced   in   W.P.(C)   No.24298\/   2006,   the<\/p>\n
petitioner has been implicated as an additional accused in Crime<\/p>\n
Nos.101\/06, 102\/06 103\/06 and 1192\/05 in the month of March<\/p>\n
2006,   i.e.   subsequent   to   the   registration   of   the   instant     crime<\/p>\n
No.104\/06   vide   Exts.P11,   P11(a)   to   P11(c)   and   the     above   are<\/p>\n
dated  subsequent  to  Ext.P1 complaint   filed  by  the  father of  the<\/p>\n
petitioner   before   the   Superintendent   of   Police,   Pathanamthitta<\/p>\n
against     the   Sub   Inspector\/3rd  respondent   alleging   that   he<\/p>\n
manhandled     him   and   arrested   the   petitioner   and   allegedly<\/p>\n
demanded bribe.   It has also to be noted   that   vide Ext.P11(c)<\/p>\n
the petitioner has been implicated in  a case registered on 13-12-<\/p>\n
2005   against   the   certain   other   persons   for   the   offences   under<\/p>\n
Sections 379, 411, 201 read with Section 34 I.P.C. alleging that<\/p>\n
he   purchased   a   stolen   Maruthi   800   car.   The   fact   that   in   Crime<\/p>\n
Nos.101\/06, 102\/06, 103\/06 and Crime No.1192\/05, the accused<\/p>\n
WPC 24298\/06 & CONN.CASES              -19-\n<\/p>\n
has been implicated,  soon after the allegations raised against the<\/p>\n
Sub Inspector by the father of the petitioner supports  the case of<\/p>\n
the petitioner to a certain extent,  at least as to the  case that in<\/p>\n
the   subsequent   cases   he   has   been   implicated   falsely   and   as   a<\/p>\n
retaliatory measure.\n<\/p>\n<\/p>\n
      14. Counsel for the petitioner has relied on the decisions  in<\/p>\n
E.T.  Sunup v. C.A.N.S.S. Employees Association, AIR<\/a> 2005<\/p>\n
S.C.115; Govind Sahai v. State of U.P., A.I.R.1968 S.C.1513<\/p>\n
and the K.J. Iyer’s Commentary<\/a> in Contempt of Court Legislature,<\/p>\n
pp   338,   339   (9th  edn)   1998   to   stress   that   when   a   matter   is<\/p>\n
pending decision in a court   of law,   a parallel enquiry set up by<\/p>\n
anyone to  cover  the same ground  would   amount to contempt<\/p>\n
of court.     I find that   the facts   situation in the decisions cited<\/p>\n
are not  in pare materia with the situation herein.  I find that the<\/p>\n
case set up   for initiating contempt of court proceedings and for<\/p>\n
getting quashed   notice issued under Section 67 C of the Abkari<\/p>\n
Act   cannot   be   allowed   at   this   stage.           The   proceedings   for<\/p>\n
confiscation contemplated  under the Abkari Act include also  the<\/p>\n
opportunity  to  take up the matter in appeal   and revision.     All<\/p>\n
WPC 24298\/06 & CONN.CASES               -20-\n<\/p>\n
the   same,   I   find   that     the   allegations   raised   by   the   petitioner<\/p>\n
calls   for   an   enquiry   .     Hence,   the   Superintendent   of   Police,<\/p>\n
Pathanamthitta is hereby directed to cause  an enquiry conducted<\/p>\n
in   the   matter   by   an   officer   not   below   the   rank     of   Deputy<\/p>\n
Superintendent of Police a the earliest.   It would be appropriate<\/p>\n
that the 2nd  respondent\/Assistant   Excise Commissioner who had<\/p>\n
been implicated in the  contempt of court proceedings etc. is not<\/p>\n
the   person     to   adjudicate   the   confiscation   proceedings.     Some<\/p>\n
other   officer   may   be   authorised   to     hold   the   confiscation<\/p>\n
proceedings   initiated,     if   it   is   decided     to   be   proceeded   with.<\/p>\n
Enquiry by the officer entrusted  by the Superintendent of Police,<\/p>\n
Pathanamthitta   shall   be   completed   at   the   earliest.   W.P.(C)<\/p>\n
No.24298\/2006 is disposed of accordingly.\n<\/p>\n<\/p>\n
       15.   C.O.C.No.529\/2007   and   W.P.(C)No.10793\/2007   are<\/p>\n
dismissed.\n<\/p>\n<\/p>\n
       Government   Pleader   will   communicate   the   order   of   this<\/p>\n
Court to the concerned  authorities for compliance at the earliest.<\/p>\n
ks.                                             K.R.UDAYABHANU, JUDGE\n\n\nWPC 24298\/06 & CONN.CASES    -21-\n\n\n\n\n\nks.\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Rajesh vs State Of Kerala Represented By The on 22 October, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 10793 of 2007(I) 1. RAJESH,S\/O.RAMACHANDRAN,JAYESH BHAVAN, … Petitioner Vs 1. STATE OF KERALA REPRESENTED BY THE … Respondent 2. ASST.EXCISE COMMISSIONER,OFFICE OF THE For Petitioner :SRI.N.DHARMADAN (SR.) For Respondent : […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-207337","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nRajesh vs State Of Kerala Represented By The on 22 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajesh-vs-state-of-kerala-represented-by-the-on-22-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajesh vs State Of Kerala Represented By The on 22 October, 2007 - 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