Delhi District Court
State vs . Sanjay on 28 May, 2015
IN THE COURT OF SH. PANKAJ ARORA, MM01, WEST DISTRICT, TIS HAZARI COURT,
DELHI
STATE Vs. SANJAY
FIR No. 904/05
PS: PUNJABI BAGH
U/S: 61 PUNJAB EX. ACT.
ID No. : 02401R1284062006
Date of commission of offence : 16.10.2005
Date of institution of the case : 03.10.2006
Name of the complainant : Ct. Vijay
Name of accused and address : Sanjay S/o Sh. Kuku, R/o D702, J.J. Colony,
Madipur, Delhi.
Offence complained of or proved : U/s 61 Punjab Excise Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 28.05.2015.
J U D G M E N T
1 The case of the prosecution in brief is that on 16.10.2005 at about 3.55 p.m. at Shivaji Park, Red Light, Rohtak Road, Punjabi Bagh, accused Sanjay was found in possession of a white color plasti katta & carrying on his scooter No. DL8SK0676 containing 48 half bottles of illicit liquors without any permit or license which was in contravention of Notification issued by Delhi Administration. FIR was registered. After completion of necessary formalities, charge sheet was filed. Cognizance of the offence was taken. Accused was summoned.
2 Prima facie case U/s 61 Punjab Excise Act was found to be made out against the accused. Accordingly, charge was framed against the accused persons, to which he pleaded not guilty and claimed trial.
State Vs. Sanjay Page No. 1 of 8 3 The prosecution examined 4 witnesses in support of its case, which are as follows:
1) Ct. Vijay Singh was examined as examined as PW1. He deposed that on 16.10.2005, he was posted at PS Punjabi Bagh as Ct. He further deposed that on that day, he was performing the patrolling duty and during patrolling duty, he reached at Shivaji Red Light Rohtak Road at about 3.45 p.m., he saw accused was standing near Red Light along with his scooter bearing registration no. DL 8SK 0676.
He further deposed that on suspicion, he checked the said scooter and found one plastic katta was kept on the foot board on the scooter and front dickey of the scooter was containing bottle of illicit liquor and also rear dickey of the scooter was containing the bottles of illicit liquor. He further deposed that in between, Ct. Mukesh from EIB came at the spot and joined in the investigation by stating that he was also having information regarding transportation of illicit liquor by the accused. He further deposed that upon enquiry, the accused revealed his name Sanjay. He further deposed that he informed PS Punjabi Bagh regarding the aforesaid recovery and HC Dalbir came at the spot. He further deposed that then, he handed over the accused along with case property with scooter to the IO. He further deposed that then, IO recorded my statement which is Ex. PW1/A. He further deposed that IO requested 45 passersby to join the investigation but none agreed and they left the spot without disclosing their names and addresses. He further deposed that without waisting time, IO checked the scooter and found plastic katta was containing 24 half bottles of Murthal No. 1 Desi Sharab and front dickey of the said scooter was containing 20 half bottles of Murthal No. 1 Desi Sharab and rear dickey of the said scooter was containing 4 half bottles of Murthal No. 1 Desi Sharab. He further deposed that then, IO took out 2 half bottles for the purpose of sample bottle and the rest case property put back into two plastic katta. He further deposed that then, IO sealed both the case property and the sample bottles with the seal of DS. He further deposed that IO filed up Form M29 at the spot. He further deposed that after use, IO handed over the seal to him. He further deposed that then, IO took the entire case property along with the aforesaid scooter into the police possession vide seizure memo which is Ex. PW1/B. He further deposed that then, IO prepared the rukka and handed over to him for registration of FIR. He further deposed that he took the same to the PS and got the FIR registered and came back at the spot State Vs. Sanjay Page No. 2 of 8 along with copy of FIR and original rukka and the same were handed over to the IO. He further deposed that then, IO prepared the site plan at my instance. He further deposed that then, IO arrested the accused which is Ex. PW1/C. He further deposed that the personal search of the accused was carried out vide personal search memo which is Ex. PW1/D. He further deposed that thereafter, the accused was released on bail and the case property deposited in the Mal Khana. During his cross examination, he stated that he had made the departure entry but which number he did not remember.
2) Ct. Rajesh Kumar was examined as PW2. He deposed that on 16.10.2005, he was posted at PS Punjabi Bagh as Ct. He further deposed that he went to the Mal Khana and from there, as per the direction of the SHO, he took the sample which was seized with the seal of DS vide RC No. 218/21/05 from the MHC(M). He further deposed that he went to the Excise Office at ITO, Deli for depositing the said sample there. He further deposed that the receiving in this regard was collected fro the Excise Office and deposited with MHC(M). He further deposed that till the time, the case property was in possession, no kind of tampering was done with the same. The witness was crossexamined but nothing material came out in his crossexamination.
3) HC Mukesh Mohan was examined as PW3. He deposed that in the year 2005, exact date he did not remember, he was patrolling in the area of PS Punjabi Bagh. He further deposed that he received secrete information at about 3:40 pm that one person would come at Rohtak Road in a scooter bearing resg. no. DL8SK0676 with illicit liquor. He further deposed that then, he checked at Shivaji Park Red Light and he found that Ct. Ajit Singh has already apprehended one person with the aforesaid scooter. He further deposed that he gave his introduction to Ct. Ajit Singh. He further deposed that thereafter, they checked the scooter and found 34 half bottles in front of Murthal no. 1 with the lable of Delhi Excise. He further deposed that on checking dickey of the aforesaid scooter, 20 half bottles of Murthal no. 1 desi sarab were found. He further deposed that Ct. Ajit Singh intimated regarding the same to PS. He further deposed that after some time, HC/IO Virender Singh came at the spot. He further deposed that IO took out one bottle for the purpose of sample and rest case property put back in a white color cloth brought by the IO. He further deposed that he along with Ct. Ajit Singh sealed both the case State Vs. Sanjay Page No. 3 of 8 property and the sample with the seal of 'VS' IO filled up form M29 at the spot. He further deposed that thereafter, case property was deposited in malkhana and accused was arrested vide memo already Ex. PW1/C. During his crossexamination, he stated entire written proceeding were conducted at Shivaji Park red light. He further stated that IO requested 34 public persons to join the investigation but they refused for the same.
PW2 ASI Zile Singh is the duty officer who identified & registered FIR No. 120/10 which is Ex. PW2/A & endorsement on the rukka which is Ex. PW2/B. The witness was not crossexamined despite having given the opportunity.
4) ASI Dalbir Singh was examined as PW4. He deposed that on 16.10.2005, he was posted in PS Neb Sarai as HC. He further deposed that he received DD No. 25A regarding apprehension of a person with illicit liquor, DD No. 25A is Ex. PW4/A. He further deposed that in pursuance, he went to the spot i.e. Red Light Shivaji Park, Rohtak Road. He further deposed that he found Ct. Vijay and Ct. Mukesh Mohan along with accused and one scooter on which illicit liquor was kept. He further deposed that both the constables handed over the custody of accused and case property to him. He further deposed that he checked the liquor and on counting no. of half bottles came out as 48. h e further deposed that he took 2 half bottles as sample. He further deposed that 23 half bottles were kept in a katta and other 23 half bottles were kept in another katta. He further deposed that both the katas and sample were sealed with seal of "DS". He further deposed that he filled up Form M29. He further deposed that seal after use was handed over to Ct. Vijay. He further deposed that the registration no. of the scooter is DL8SK0676. He further deposed that both the kattas, sample and scooter were taken into police possession vide seizure memo already Ex. PW1/B. He further deposed that name of the accused after investigation disclosed as Sanjay. The witness has correctly identified the accused present in the Court that day. He further deposed that accused Sanjay was arrested vide arrest memo already Ex. PW1/C. He further deposed that personal search was conducted vide personal search memo already Ex. PW1/D. He further deposed that case property was deposited in malkhana. He further deposed that he recorded the statement of Ct. Vijay on whose statement a rukka was State Vs. Sanjay Page No. 4 of 8 prepared Ex. PW4/B. He further deposed that he also prepared the site plan which is Ex. PW4/C. He further deposed that he also recorded the statement of other witnesses in the present case. He further deposed that he sent the sample to Excise Lab. The witness was not crossexamined despite having given the opportunity.
4 Statement of accused persons U/s 313 of Cr.P.C. was recorded, in which all the incriminating evidence were put to the accused. Accused stated that he has been falsely implicated in the present case and he was innocent. Accused opted not to lead any evidence in defence. 5 This Court has heard the arguments and perused the record.
It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
As per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under: ''22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note : The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record as the DD Writer was not examined and no explanation is given as to why DD Writer State Vs. Sanjay Page No. 5 of 8 is not made the witness in the present case. It is further observed that the accused is lady. No plausible explanation is given as to why compliance of Section 46 (4) Cr.P.C. is not made.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution." In the present case, the above said provision appears to have not been complied with by prosecution.
In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: "It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting State Vs. Sanjay Page No. 6 of 8 investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
It has been held by Hon'ble High Court of Delhi in Ramesh Prakash Vs. State 1999 VI AD (DELHI) 536 that, "the number of the FIR (Ex PW3/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly, indicates that these documents were prepared at the same time. The prosecution has not received any explanation whatsoever as to under what circumstances number of the FIR (Ex. PW3/B) had appeared on the top of the aforesaid documents.
This gives rise to two inferences that either the FIR (Ex. PW3/B) was registered prior to the receipt of the secret information and alleged recovery of the contraband or number of the FIR was inserted in these document after its registration. In both the situations, is seriously reflect upon the veracity of the prosecution version given by Vijay (PW5), Inspector O.P. Sharma (PW6), SI Sehdev (PW7) and SI Brijdender (PW8) and creates a good deal of doubt aboutrecovery of the contraband in the manner alleged by the prosecution. Thus the benefit arising out of such a situation must necessarily go to the appellant".
6 It is clear from the record that public persons were available at the spot and police officials have not made sincere efforts to make them as witness in this case. It is apparent from the testimony of police official PW1 that 45 passersby were available at the spot. There is nothing on record if any written notice has been served to those passersby who refused to join the investigation. Further, it has come on record through the prosecution evidence that the IO has done the writing work at the spot. When the IO has done the writing work at the spot itself which must have taken them some time, they ought to have made some sincere efforts in joining the passersby as witnesses to the investigation which admittedly is not so in the present case. Thus, the parrot like narration of the facts by the State Vs. Sanjay Page No. 7 of 8 prosecution witnesses cannot alone be said to be sufficient to arrive at the conclusion of guilt of accused. A grave doubt is also raised on the veracity of the testimony of prosecution witnesses on account of the apparent discrepancy in the documents Ex. PW1/B & Form M29. Admittedly, as per the prosecution case the said documents were was prepared before registration of the FIR. When the FIR is yet to be registered, mentioning of the FIR number on the said documents without any explanation only leads to the conclusion that the said documents have not been prepared in the way and manner as asserted by the witness.
7 It is well settled that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful and the benefit of doubt certainly goes in favor of the accused. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused namely Sanjay is hereby acquitted from the charges punishable U/s 61 Punjab Excise Act. Bail bond U/s 437A of Cr.P.C. furnished by the accused and same is perused, verified & accepted.
Announced in the open Court, On 28th, May, 2015.
(Pankaj Arora) MM01 (West)/Delhi 28.05.2015 State Vs. Sanjay Page No. 8 of 8 FIR No. 904/05 PS: P. Bagh 28.05.2015 Present: Ld. APP for the State.
Accused Sanjay with Sh. Sandeep Nehra, Ld. Counsel.
Vide separate judgment dictated in the open court, the accused namely Sanjay is hereby acquitted from the commission of offence punishable U/s 61 Punjab Excise Act.
Bail bond U/s 437A of Cr.P.C. furnished by the accused and same is perused & accepted. File be consigned to the Record Room.
(Pankaj Arora) MM01,West, THC, Delhi 28.05.2015 State Vs. Sanjay Page No. 9 of 8