Delhi District Court
State vs . Bachu Singh & Ors. on 20 April, 2013
IN THE COURT OF SH. GAGANDEEP SINGH
METROPOLITAN MAGISTRATE, DELHI
FIR NO: 24/96
U/S: 61/1/14 EXCISE ACT &
468/473/34 IPC
P.S: TIMAR PUR
STATE VS. BACHU SINGH & ORS.
:JUDGMENT:
Sl. No. of the case 770/2
Date of commission of offence 17.01.1996
Name of the complainant SI Dharam Pal Singh,
Special Staff, North,
Delhi.
Name, parentage and address 1.Bachhu Singh @ Billu
of the accused. S/o Sh. Charan Singh
R/o H. No. 164 Pusta, Old
Chandrawal, Delhi.
2. Adarsh Kumar
S/o Sh. Om Prakash
R/o H. No. C340, G6,
STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96
1/14
Shalimar Garden,
Extension 2, Sai Baba,
District Ghaziabad, UP.
3. Anil Kumar
S/o Sh. Dharambir
R/o Village Nasirpur
Banger, Sonepat,
Haryana.
4. Jai Bhagwan
S/o Sh. Bhagwan Singh @
Balwant Singh R/o H. No.
164A, Old Chandrawal,
Delhi. (since abated).
Offence complained off U/s 61/1/14 Excise
Act & 468/473/34 IPC
Plea of accused Pleaded not guilty
Final order Acquitted
Date of order 20.04.2013
Date of final arguments heard 20.04.2013
BRIEF FACTS AND REASONS FOR DECISION :
1. The story of the prosecution in brief is that on 17.01.1996 at T point near Nehru Vihar turn, Delhi within the jurisdiction of Police Station Timar Pur, all the accused persons were found traveling in one maruti STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 2/14 van bearing No. DL6CD1781. The said van was stopped and checked which was found containing two boxes of illicit liquor each containing 48 quarter bottles of Bonnie Scot Whisky which were kept at the left side of the van. Further in the back seat six boxes of illicit liquor each containing 12 bottles each and from the diggi twelve boxes of illicit liquor were recovered. In the said twelve boxes, eleven boxes were found containing twelve bottles each of illicit liquor and the 12th box was found containing 11 bottles of illicit liquor. Thus all the accused were found in possession of illicit liquor without any license or permit and in contravention of Delhi Administration Notification. It was also found that the number plate affixed on the van was fake. Thereafter, the accused persons were booked for offence punishable u/s 61/1/14 Excise Act & 468/473/34 IPC only.
2. That after completion of investigation the challan against the accused was filed on 09.07.1998 and the accused was summoned. The charge u/s 61/1/14 Excise Act & 468/471/34 IPC was framed against all the accused persons on 14.01.1999 to which they pleaded not guilty and claimed trial. The said charge was amended with respect to accused Adarsh Kumar in revision by the order of Ld. ASJ, Delhi dated 06.02.2004. He was directed to be tried for the offence punishable u/s 61/1/14 Excise Act & 473/34 IPC.
3. The prosecution has examined only five witnesses in order to prove their case.
STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 3/14
4. The PW1 SI Sultan Singh is the duty officer. He proved the FIR Ex. PW1/A and endorsement on the rukka Ex. PW1/B.
5. The PW2 SI Chandu Lal is the recovery witness. He deposed that on 17.01.1996 he alongwith other officials of special staff namely SI Dharam Pal Rathee, SI I K Jha, HC Rajbir, ASI Parbhu Dayal, Ct. Pawan Kumar and Inspector Yadav were on patrolling duty. At about 2.00 am SI Dharam Pal Rathee received secret information that one maruti van with number DL6CD1781 will be coming from Majnu Ka Tilla side having illicit liquor in it. The said information was shared and thereafter they all went to Tpoint Nehru Vihar, Timar Pur. At about 3.30 am the maruti van came and which was stopped. In the said maruti van four persons were sitting, accused Anil was driver. Accused Bachhu Singh was sitting alongwith the driver and the remaining accused were sitting on the back seat. The said van was checked and in the front two boxes of Bonnie Scot Whisky. The said boxes were found containing 48 quarter bottles of illicit liquor. In the back side of the van six boxes were lying of illicit liquor. In the diggi twelve boxes of illicit liquor were recovered out of which eleven boxes were found containing twelve bottles each and the 12th box was found containing 11 bottles of illicit liquor. From all the said boxes one bottle was separated as sample and sealed with the seal of DPR. Form M23 was recovered from the dash board of the car on which No. DAE7777 was written. Thereafter the rukka was prepared and sent to Police Station for registration of FIR through Ct. Pawan. After the registration of the FIR all the accused persons were arrested. The arrest and personal STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 4/14 search memo are Ex. PW2/A to Ex. PW2/D. The number plate affix on the car was found to be fake but the original number was not found. Thereafter the witness was declared hostile and cross examined by Ld. APP for the State. He admitted that Form M29 was filled and the case property was seized vide seizure memo Ex. PW2/E. The maruti van was seized vide memo Ex. PW2/F.
6. The PW3 SI Hari Kishan is the MHC(M). He has deposed that on 17.01.1996 ten plastic kattas, 18 bottles, two other quarter bottles and one maruti car were deposited in the Malkhana. He proved the entry in Register No. 19 as Ex. PW3/A.
7. The PW4 Inspector I K Jha is also the recovery witness. He has deposed that on 17.01.1996 he alongwith other officials of special staff officials namely SI Dharam Pal Rathee, ASI Chandu Lal, HC Rajbir, ASI Parbhu Dayal, Ct. Pawan Kumar, Ct. Mala Ram, Ct. Vijay, Ct. Ashok and Inspector S B Yadav were on patrolling duty on government vehicle bearing No. DDL3337. At about 2.00 am SI Dharam Pal Rathee received secret information that one maruti van will come from Majnu Ka Tilla side by one Billu having illicit liquor in it. The said information was shared and thereafter they all went to Tpoint Nehru Vihar, Timar Pur. They requested to 4/5 passersby to join the proceedings but they refused to join the proceedings without disclosing their names and addresses. At about 3.30 am the maruti van bearing No. DL6CD1781 came and which was stopped. In the said maruti van four persons were sitting, accused Anil was driver.
STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 5/14 Accused Bachhu Singh was sitting alongwith the driver and the remaining accused were sitting on the back seat. The said van was checked and in the front two boxes of Bonnie Scot Whisky. The said boxes were containing 48 quarter bottles of Bonnie Scot Whisky. In the back side of the van six boxes were lying of deshi illicit liquor containing 12 full bottles each. In the diggi twelve boxes of illicit liquor were recovered out of which eleven boxes were found containing twelve bottles each and the 12th box was found containing 11 bottles of illicit liquor. From all the said boxes one bottle was separated as sample and sealed with the seal of DPR. The remaining illicit liquor i.e. 94 quarter bottles were put back in the katta and in eight other kattas 22 bottles each were put back and sealed. In one katta 21 bottles were put back and sealed. Form M23/copy of RC was recovered from the dash board of the car on which No. DAE7777 was recovered. That from the back seat of van one number plate bearing No. DAE7777 was also recovered. One key of the van was also seized. The illicit liquor was seized vide seizure memo Ex. PW2/E and maruti van, photocopy of RC, key, number plate DAE7777 were seized vide seizure memo Ex. PW2/F. Thereafter the rukka Ex. PW4/A was prepared and sent to Police Station for registration of FIR through Ct. Pawan. The seal after use was handed over to him. After the registration of the FIR all the accused persons were arrested. The arrest and personal search memo are Ex. PW2/A to Ex. PW2/D. The number plate affixed on the car was found to be fake.
8. The PW5 HC Pawan who is also the recovery witness. He has deposed STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 6/14 that on 17.01.1996 he alongwith other officials of special staff officials namely SI Dharam Pal Rathee, ASI Chandu Lal, HC Rajbir, ASI Parbhu Dayal, SI I K Jha, Ct. Mala Ram, Ct. Vijay, Ct. Ashok, Ct. Rajender, driver HC Rishal Singh and Inspector S B Yadav were on patrolling duty on government vehicle bearing No. DDL3337. At about 2.00 am SI Dharam Pal Rathee received secret information that one maruti van coming from Majnu Ka Tilla side will be brought by one Billu having illicit liquor in it. The said information was shared and thereafter they all went to Tpoint Nehru Vihar, Timar Pur. They requested to 4/5 passersby to join the proceedings but they refused to join the proceedings without disclosing their names and addresses. At about 3.30 am the maruti van bearing No. DL6CD1781 came and which was stopped. In the said maruti van four persons were sitting, accused Anil was driver. Accused Bachhu Singh was sitting alongwith the driver and the accused Jai Bhagwan and Adarsh were sitting on the back seat. The said van was checked and in the front left side two boxes of Bonnie Scot Whisky. The said boxes were containing 48 quarter bottles of Bonnie Scot Whisky. In the back side of the van six boxes were lying of deshi illicit liquor containing 12 full bottles each. In the diggi twelve boxes of illicit liquor were recovered out of which eleven boxes were found containing twelve bottles each and the 12th box was found containing 11 bottles of illicit liquor. That from all the said boxes one bottle was separated as sample and sealed with the seal of DPR. The remaining illicit liquor i.e. 94 quarter bottles were put back in the katta and in eight other kattas 22 bottles each were put back and sealed. In one katta 21 bottles were put back and sealed.
STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 7/14 Form M23/copy of RC was recovered from the dash board of the car on which No. DAE7777 was recovered. That from the back seat of van one number plate bearing No. DAE7777 was also recovered. One key of the van was also seized. The illicit liquor was seized vide seizure memo Ex. PW2/E and maruti van, photocopy of RC, key, number plate DAE7777 were seized vide seizure memo Ex. PW2/F. Thereafter the rukka Ex. PW4/A was prepared and sent to Police Station for registration of FIR through him. He accordingly went to the Police Station, got the case registered and returned back to the spot with copy of FIR and original rukka. The seal after use was handed over to SI I K Jha. After the registration of the FIR all the accused persons were arrested. The arrest and personal search memo are Ex. PW2/A to Ex. PW2/D. The number plate affixed on the car was found to be fake.
9. That on 11.01.2013 the prosecution evidence was closed as the matter was pending for prosecution evidence since the year 1999 and prosecution failed to secure the presence of all the material witnesses despite number of opportunities. Thereafter on 16.03.2013 the statement of all the accused persons were recorded wherein they denied all the allegations and denied that recovery of liquor was effected from them. No defence evidence was led by the accused persons.
10.I have heard the Ld. APP for the State, Ld. counsel Sh. Nishant Singh and Sh. G P Sharma and Sh. Virender Singh for all the accused persons and gone through the record.
STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 8/14
11.The first offence under which all the accused persons have been charged is u/s 61/1/14 Excise Act for being found in the possession of 96 quarter bottles of Bonnie Scot Whisky and 215 quarter bottles of country made illicit liquor which were kept in maruti van bearing No. DL6CD1781 without any license or permit and in contravention of Delhi Administration Notification.
12.The material recovery witnesses who have been examined by the prosecution are PW2 SI Chandu Lal, PW4 Inspector I K Jha and PW5 HC Pawan Kumar. The testimonies of all the said witnesses shows material contradictions regarding the manner of recovery, number of police officials at the time of recovery etc. which makes them to be unreliable witness. The PW2 in his cross examination stated that they all were eight police officials at the time of recovery. On the other PW5 in his cross examination stated that they were eleven to twelve in number at the time of recovery. Similarly PW2 in his examination in chief stated that they searched for the original number plate of the van but the same was not found. But on the other hand PW4 and PW5 stated that from the back seat of the van the original number plate with number DAE7777 was recovered and which was seized vide seizure memo Ex. PW2/F. That regarding material used for seizure of case property PW4 stated in his cross examination that the same was in the IO kit. But on the other hand PW5 in his cross examination stated that the same was brought from the nearby kabari shop. The said kabari has not been named as witness by the prosecution.
STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 9/14 Similarly PW2 in his cross examination stated that they finally left the spot at about 8.00 am. But on the other hand PW4 and PW5 stated that they left the spot at 11.00 am in the morning. All the said material contradictions renders them to be untrustworthy witness. Further no effort was made by the 1st IO SI Dharam Pal Rathee in joining the public persons as witness as is clear from the testimony of PW2, PW4 and PW5. It is admitted fact that the recovery was effected at about 3.30 am when the traffic was going on near the spot. The 1 st IO also did not make any sincere effort to join the public witnesses to the proceedings after seizure of the case property as is clear from the testimony of PW4 and PW5. In these circumstances their testimonies can not be termed as reliable and the explanation given for non joining of public witness to the proceeding can not be believed. Further no explanation has been given as to the handing over of the seal to independent person and subsequent return as the same was handed over to PW4 who himself was the part of the raiding party and also police official. Thus the possibility of misuse of seal also can not be ruled out. The case property was also never produced in the Court as the same was disposed off prior to the examination of recovery witnesses. The other components of the case property namely the original number plate with number DAE7777 and the key of the van were also never produced in the Court for the reasons best known to the prosecution. Even through they were seized as per case of the prosecution. The above said facts creates doubt with respect to recovery effected from the accused.
STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 10/14
13.It is admitted fact that the document Ex. PW2/E and Ex. PW2/F were prepared prior to registration of FIR. The perusal of the same shows that document carries the FIR No. upon it. This issue of FIR no. on the documents prepared before registration of FIR came up before the Hon'ble Delhi HC in the case titled as Pawan Kumar Vs. Delhi Admn 1987 CC Cases 585 wherein Hon'ble High Court observed that the mentioning of FIR number on the recovery memos which were prepared prior to lodging of FIR creates a doubt and the benefit should go to the accused. In the present case in hand also no explanation has been offered as to the presence of FIR No. on seizure memos Ex. PW2/E and Ex. PW2/F. This fact also creates a doubt in the prosecution version.
14.The another fact which requires consideration is the presence of the recovery witnesses at the spot. The PW2 has deposed that he while on patrolling duty alongwith PW4, PW5 and others apprehended the accused persons with illicit liquor. But no evidence has been led by the prosecution which can prove their presence at the spot. No DD for departure/arrival or duty roaster has been filed by the prosecution which could show their presence at the relevant time and place. This fact assumes much importance when seen in the context that all the material witnesses in the present case are police officials. The benefit for the same has to be given to the accused.
15.The second charge which has been levelled against the accused Bachhu Singh and Anil Kumar is for offence punishable u/s STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 11/14 468/471/34 IPC and against Adarsh Kumar u/s 473/34 IPC. The allegations against them are that they were found using fake number plate affixed upon the maruti van they were driving. The said number plate was DL6CD1781.
16.That in order to support these allegations the material witnesses examined by the prosecution are again PW2, PW4 and PW5. All of them stated that on inquiry they found the number affixed on the maruti van to be fake. They also found the copy of one RC with number DAE7777 and insurance cover note. The PW4 stated that on inquiry IO came to know from the engine number and chasis number on the copy of RC that number DL6CD1781 was fake. Similarly PW5 also deposed in same terms. Thus the crucial witness in the present case for proving the said charge was the IO SI Dharam Pal Rathee who could not be examined as he expired during trial. It also not clear from the testimony of PW4 as to whether they engine number and chasis number inscribed upon the vehicle were checked and compared with the copy of RC or not. The case of the prosecution is also silent as to whether inquiry was got conducted from the concerned transport authority so as to find out the original registration number of maruti van seized. Admittedly the original RC of the maruti van was also never seized nor any investigation on this aspect was conducted. The oral testimonies of PW4 and PW5 thus does not prove the fact that the number plate affixed upon the maruti van seized was fake or original as they did not themselves compared with the inscribed chasis and engine number. The original number STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96 12/14 plate and the key of the maruti van was never produced in the court. All the above said creates doubts in the story of the prosecution. Even other wise, if it is believed that the accused persons were using fake number plate the said act does not satisfy the ingredients of offence punishable u/s 463/468 or 471 IPC. The section 473 is also not attracted as the number plate cannot be termed as seal, plate or any other instruments used for making an impression. The number plate of the vehicle is never used for making an impression as defined in Section 473 of IPC.
17.It is a cardinal principal of criminal law that the prosecution has to prove their case against accused beyond reasonable doubt and benefit of the doubt has to be given to all the accused. All these facts leads to one conclusion that the prosecution has miserably failed to prove their case against all the accused persons and benefit for the same has to be given to the accused persons.
18. In view of the above discussed reason, the accused Bachhu Singh, Adarsh Kumar and Anil Kumar are acquitted u/s 61/1/14 Excise Act & 468/473/34 IPC. Bail bonds and surety bond stands discharged. File be consigned to Record Room.
(Announced in the open court)
Dated: 20.04.2013 (GAGANDEEP SINGH)
MM07/CENTRAL
TIS HAZARI : DELHI
STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96
13/14
CC/FIR No. 24/96
P.S. TIMAR PUR
STATE VS. BACHHU SINGH & ORS.
20.04.2013
Present: Ld. APP Sh. Manan Munjal for the State.
Accused Bachhu Singh @ Billu, Adarsh Kumar and Anil Kumar in person.
Sh. Nishant Singh Ld. counsel for accused Anil.
Sh. G P Sharma Ld. counsel for accused Adarsh.
Sh. Virender Singh Ld. counsel for accused Bachhu Singh. Final arguments heard.
Vide my separate detailed judgment of the even date the accused Bachhu Singh, Adarsh Kumar and Anil Kumar are acquitted for the offence u/s 61/1/14 Excise Act & 468/473/34. Accused wishes to adopt the previous bail bond and surety bond. Previous bail bond and surety bond adopted for the purpose of Section 437A of Cr.PC. They shall remain valid for period of six months from today. Original documents returned as per rules.
File be consigned to Record Room.
(GAGANDEEP SINGH)
MM07/CENTRAL/ DELHI
20.04.2013
STATE VS. BACHHU SINGH & ORS. FIR NO. 24/96
14/14