Delhi District Court
State vs . Neetu on 19 December, 2014
FIR No. 345/09
State Vs. Neetu
PS Keshav Puram
U/s 61/1/14 Excise Act
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE: NORTH WEST04, DELHI
Case ID:- 02404R0029542010
FIR No. 345/09
State Vs. Neetu
PS Keshav Puram
U/s 61/1/14 Excise Act
Date of Institution of case : 01.02.2010
Date of Judgment : 19.12.2014
JUDGMENT:
a) Date of offence : 25.11.2009 b) Offence complained of : U/s 61/1/14 Excise Act. c) Name of Accused, his : Neetu parentage & residence W/o Sh.Ajay Kumar R/o Jhuggi No. N-86/299, Jhuggi Railway Line, Lawrence Road Industrial Area, Delhi. d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted :13/13: FIR No. 345/09 State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act BRIEF FACTS AND REASONS FOR DECISION:
1. That on 25.11.2009 at about 5:30 p.m at N-86/268, Jhuggi Near Railway Line, Lawrence Road, Delhi within the jurisdiction of PS Keshav Puram, accused Neetu was found in possession of 48 half bottles (Masaledar Lal Quila) Country made liquor without any valid permit or license and in contravention of notification issued by Delhi Administration and thus committed an offence punishable u/s 61/1/14 Punjab Excise Act. After the usual investigation, the charge sheet for the offence U/Sec 61/1/14 Excise Act was filed against the accused.
2. The aforesaid chargesheet was filed before the court on 01.02.2010, whereupon the cognizance of the offence was taken against the accused. Thereafter, the provisions of section 207 Cr.PC. were complied.
3. After hearing the arguments, charge u/s 61/1/14 Excise Act was framed against the accused to which the accused pleaded "Not Guilty" and claimed trial. Accordingly, the case was fixed for prosecution evidence.
4. During the course of the trial, prosecution examined four witnesses to substantiate the accusations levelled against the accused.
5. PW-1 HC Narender Dhama No. 1658/NW deposed that deposed that on 25.11.2009 he was on patrolling duty and apprehended the accused Neetu alongwith a plastic Katta containing two card-boxes having 24 bottles each of illicit liquor, that he gave information at PS and after sometime IO HC Sanwal Ram alongwith W.Ct. Geeta reached at the spot, that he produced the accused and the recovered liquor before the IO, that IO requested four-five passerby to join the investigation, that the IO took out one bottle as sample bottle from each :13/13:
FIR No. 345/09State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act boxes, that the sample bottles and bottles in the card boxes were sealed with the seal of SRM, that the seal after the use was handed over to him, that IO filled the Form M-29, that IO recorded his statement and prepared rukka and handed it over to him for registration of the FIR, that after the registration of the FIR he returned back at the spot and handed over the copy of FIR and rukka to IO, that the accused was arrested vide memo Ex. PW-1/C and personally searched by W Ct. Geeta and that thereafter the case property was deposited with MHC(M).
The MHC(M) produced the case property which were duly identified by the witness to be the same as were recovered from the accused. The case property is Ex. P-1 to P-5.
The MHC(M) also produced DD No.14 B dated 27.04.2011 vide which it has been recorded that the seal impression of these plastic kattas were found broken.
During the cross examination the witness deposed that the departure entry for patrolling was made in the morning, that there were about 100-150 jhuggies near railway line, that he gave intimation at police station by making telephone call from STD Booth, that he did not see the Jhuggi of accused prior to 25.11.2009, that he knows Sunita @ Kamla who is a B.C. of the area and that he later on came to know that Sunita @ Kamla is the mother in Law of accused Neetu. The witness denied the suggestion that there were about 15-20 residents of the area who used to sell liquor from their Jhuggies, that no liquor was recovered from the possession of the accused Neetu and that she has been falsely implicated in the present case.
6. PW-2 Sub Inspector Hemant Kumar proved the registration of FIR as well as DD entry in the present case. The same are exhibited as Ex. PW-2/B and Ex.
PW-2/A respectively.
The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
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FIR No. 345/09State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act
7. PW-3 W. Ct. Geeta No. 615/NW PS Bhalswa Diary deposed on the similar lines as deposed by PW-1 during her examination in chief.
During the cross examination the witness deposed that they reached at the spot by motorcycle, that constable Narender and accused met them near railway line outside the jhuggi, that she does not know as to whether IO called any resident of those jhuggies to join the proceedings and voluntarily stated that the passerby were asked to join the proceedings, that Constable Narender removed the case property from the spot to police station but he does not know as to which means of transport was used by him and that IO made inquiry from accused about the source of light and also about the licence if any for selling the liquor. The witness denied the suggestion that he did not visit the spot with IO or that all the writing work was done at the police station.
8. PW-4 HC Sanwal Mal deposed that on 25.11.2009 that he was posted as HC at Police Station Keshav Puram, that on receiving a DD No. 18 A exhibited as Ex. PW-2/A, he along with W Ct. Geeta at about 5.30 pm, reached at the spot i.e near Railway Line, Jhuggi No. N-86 where Ct. Narender met them and produced the accused, present in the Court (correctly identified by the witness) along with the two white kattas, that he checked the said kattas and found one carton of illicit liquor in each of the said kattas and upon opening the said cartons, 24 half bottles of Lal Quila Masaledar Desi Sharab were found in each cartoon which were seized after sealing both kattas with the seal of SRM and seized vide seizure memo already Ex. PW1/A, bearing his signature at point C, that he filled form M-29 Ex. PW4/C which bears his signature at point A, that the seal after use was handed over to Ct. Narender, that he recorded the statement of Ct. Narender already Ex. PW1/B bearing his signature at point B upon which he prepared rukka Ex. PW4/A bearing his signature at point A and that he got the FIR recorded through Ct. Narender who after getting the FIR recorded came to :13/13:
FIR No. 345/09State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act the spot along with copy of FIR and original rukka and handed over the same to him, that he prepared the site plan of the place of occurrence which is Ex. PW4/B, bearing his signature at point A, that the accused was arrested by him vide arrest memo Ex. PW1/C bearing his signature at point C and that accused was personally searched by WCt. Geeta vide personal search memo Ex. PW3/A, bearing his signature at point B. PW-4 HC Sanwal Mal further deposed that he recorded the statements of relevant witnesses, that he released the accused on police bail at the spot and deposited the case property with MHC(M) after returning to the PS. PW-4 HC Sanwal Mal further deposed that on 03.12.2009, upon his direction, the samples of case property as well as form M-29 were got deposited in Excise Laboratory by Ct. Narender after taking them from MHC(M) and that on 15.12.2009, the results of the same were received from Excise Laboratory. The case property has already been exhibited as P-1 to P-5.
During the cross examination denied the suggestion that accused was never apprehended along with the alleged case property, that preset case has been falsely registered against the accused by planting the case property upon her and that the investigation done by him is tainted. The witness further deposed that the spot was a public place, that he did not join any independent witness in the investigation of the present case and denied the suggestion that he is deposing falsely.
9. Vide order dated 22.11.2014 prosecution evidence was closed by this Court after the examination of all the material witnesses of the prosecution and the matter was fixed for recording of statement of accused.
10. The Statement of accused was recorded U/Sec 281 r/w 313 Cr. P.C on 19.12.2014 and all the incriminating circumstances appearing in evidence were put to the accused to which the accused replied that she was not present at the :13/13:
FIR No. 345/09State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act spot at the relevant time and that she has been falsely implicated in the present case.
11. I have heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and have perused the record of the case.
12. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused that she has been falsely implicated in the present case and that she was not present at the spot at the relevant time, that nothing was recovered from her possession and the alleged recovery has been planted upon the accused at the police station and that the prosecution was duty bound to prove beyond reasonable doubt the manner of search, seizure and recovery in which the prosecution has failed completely benefit of which must go to the accused.
13. I have heard the Ld. APP for the state as well the defence counsel.
14. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. It is evident from the testimony of PW-1, PW-3 and PW-4 that accused was apprehended alongwith the alleged liquor at public place and public persons were asked to join the investigation who did not agree still police officials neither served any notice upon them to initiate prosecution for refusal nor recorded their names or addresses to show that the police officials made bonafide efforts to persuade the public persons to join the investigation. It is apparent from the record that the seal after the use was handed over to PW-1 by PW-4 IO who both are police :13/13:FIR No. 345/09
State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act officials and were posted in the same police station on the relevant date and time and not to any independent witness which makes it highly probable that the entire proceedings were conducted at the police station, that the case property was tampered with and that nothing was recovered from the accused at the spot. It is also pertinent to mention that prosecution has failed to produce any documentary evidence or the DD entries made to show that they were on patrolling duty. The prosecution witnesses have not even given the DD numbers vide which they left the police station for patrolling and investigating the present case. These omissions on the part of the prosecution create doubt on the version that the accused was apprehended with the alleged liquor at the spot by the said PWs. Further, the testimony of PW-3 and PW-4 and the perusal of rukka Ex. PW-4/A shows that the seizure memo Ex. PW-1/A and Form M-29 were prepared prior to the dispatch of the Rukka and registration of the FIR. However, perusal of the said documents clearly shows that the FIR number and other particulars of the present case are mentioned on the said documents. No explanation has come from the prosecution as to how the FIR number surfaced on those documents which were prepared prior to the registration of the case. This fact casts a doubt upon the testimony of PWs because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
These failures on the part of prosecution create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused. In support of :13/13:FIR No. 345/09
State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act aforesaid observations reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(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 a case law reported as Roop Chand Vs. The State of Haryana 1999 (1) CLR 69, the Hon'ble Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The :13/13:FIR No. 345/09
State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. 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 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 the witnesses from the public had refused 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 :13/13:
FIR No. 345/09State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act for non joining 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".
In case law reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
"5. 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 improbably or lacks credibility, the benefit of doubt necessarily has to go to the accused".
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This :13/13:
FIR No. 345/09State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act reflects adversely on the prosecution version."
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
15. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal. Furthermore, PW-3 stated in the cross examination that Ct. Narender took the rukka at 7:30p.m and that the accused was arrested after arrival of Ct. Narender at the spot with the copy of FIR, however the said witness was confronted with the arrest memo Ex. PW-1/C where the time of arrest of accused was mentioned as 6:30 p.m. This witness failed to tell as to by which means of transport Ct. Narender took the case property to the police station. These contradictions, discrepancies and omissions further create grave doubts on the prosecution's version of recovery of alleged country made liquor from the possession of the accused from the spot and substantiates the defence version :13/13:
FIR No. 345/09State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
16. In the present facts and circumstances, it is pertinent to mention the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J. 511(SC) wherein the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
17. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, accused Neetu, W/o Sh. Ajay is acquitted of the charge leveled :13/13:
FIR No. 345/09State Vs. Neetu PS Keshav Puram U/s 61/1/14 Excise Act against her. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Case property be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABAS)
today i.e on 19.12.2014 MM-04/North West/DELHI
19.12.2014
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