Delhi District Court
State vs Rikki on 13 September, 2011
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 05, ROOM NO. 513,
DWARKA, DELHI.
STATE
VERSUS
RIKKI
FIR No. 154/2003
P.S.: Inderpuri
U/S: 61/1/14 Excise Act
1.Serial No. of the case : 02405R0294322010
2. Date of commission of offence: 10.08.2003
3. Name of the Complainant : Ct Rajender, P.S Inderpuri, New Delhi.
4. Name of the accused, and her parentage and residence : Rikki, R/o Darshan Singh, R/o Jhuggi No. 2A, A Block, JJ Colony, Inderpuri New Delhi.
6. Date when judgment : 13.09.2011 was reserved FIR N0. 154/03 PS- Inderpuri Page 1/8
7. Date when Judgment : 13.09.2011 was pronounced
8. Offence Complained of : Section 61/1/14 Excise or proved Act
9. Plea of accused : Pleaded not guilty
10. Final Judgment : Acquitted Brief Statement of reasons for the decision of the case
1. Briefly stated the case of the prosecution is that on 10.08.2003, at about 9.35 pm at A Block, ganda nala, JJ colony within the jurisdiction of PS Inderpuri, the accused was found in possession of one plastic canny containing six bottles of illict liquor without any licence or permit of Government of NCT of Delhi. Accordingly, FIR No. 154/03 was registered. Challan was filed on 07.07.2004.
2. On appearance of the accused, a charge for the offence under Section 61/1/14 of Punjab Excise Act was framed against him to which he pleaded not guilty and claim trial. Thereafter, matter was put for prosecution evidence.
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3. Prosecution has examined five witnesses namely PW1 Ct Krishan Kumar, PW2 HC ASI Sunil Minz, PW3 ASI Etwa Oron, PW4 HC Rajender and PW5 HC Omprakash to prove the case against the accused.
4. After the Prosecution evidence was closed the statement of accused was recorded under Section 313 Cr.P.C. and all the incriminating evidence were put to him where he has denied his involvement in the case. He do not wish to led any evidence in his defence. Thereafter final arguments were heard.
5. Ld APP for the State addressed useful and pertinent arguments. Ld. APP for the state has argued that the case property has been correctly identified by the witnesses including the recovery witnesses i.e. PW4 and the case has been proved beyond doubt against the accused and prays for conviction of the accused.
6. On the other hand, the accused submits that he was falsely implicated in the present case and prays for acquittal.
7. PROSECUTION EVIDENCE:
7.1 Seizure of Case Property: PW4 has stated in his evidence that on 10.08.2003 he was on petrolling duty and he apprehended the accused FIR N0. 154/03 PS- Inderpuri Page 3/8 carrying plastic canny and on checking the canny smell of of liquor was coming out. He further stated that he informed the PS and IO came and recorded his statement Ex. PW4/A and IO took one bottle as sample and remaining case property was seized vide memo Ex. PW4/B and seal with the seal of OP. Thereafter, IO prepared rukka and handed over him for registration of FIR. Site plan Ex. PW4/C was prepared at his instance.
Thereafter, accused was arrested and personal search of accused was conducted vide Ex. PW4/D and PW4/E. 7.2 PW5 is the IO. He has stated that on receipt of DD entry No. 28A, he reached at A block and met PW4 who handed over the accused alongwith one plastic canny containing illict liquor. He also stated that he requested 34 passersby to join the investigation but none agreed. For proving the present offence, it is to be proved by the prosecution that all the six bottles were containing whisky and accused was carrying the same without permission or license. But only one bottle was seized as sample which was sent to Excise Laboratory which even if admitted that the samples contains whisky but will not prove whether all other bottles were having whisky as samples were not taken from all the bottles. In the circumstances, benefit of doubt should be given to the accused.
As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
FIR N0. 154/03 PS- Inderpuri Page 4/8 "Chapter 22 rule 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 view of this rule, prosecution witnesses have failed to prove the DD entry. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record.
It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi Hgih Court held that;
"wherein it has been observed that if the investigating agency deliberately ignores to FIR N0. 154/03 PS- Inderpuri Page 5/8 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."
8. Absence of Independent Witnesses: In his examination PW4 stated that after apprehending the accused, he checked and found smell of liquor coming from canny. Section 100(4) Cr.P.C casts a duty upon the officer to call upon two or more independent witnesses before making a search. In their testimony, PW4 as well as PW5 have not stated that he made any efforts to call independent witnesses before making the search. In his statement u/s 313 Cr.P.C accused stated that the case property was not recovered from his possession. No reason has been advanced by PW5 of the absence of independent witnesses at the time of seizure of case property or arrest and personal search of the accused. The locality being populated area, it is very unlikely that the police officials did not find any public person to FIR N0. 154/03 PS- Inderpuri Page 6/8 join the investigation.
The accused was apprehended at about 9.35 pm and despite the fact that the locality is the densely populated area and also the timing was not such which eliminates the presence of public person at the spot, no public person was made a witness either to the recovery of the case property or to the arrest of the accused.
In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" 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............".
It has not come in evidence that no public person was present. Therefore, the whole case of the prosecution appears to be planted upon the accused.
9. Presence of alcohol content in the case property: As per the report of Deputy Chemical Examiner, Excise Department, Govt. of Delhi the sample was tested positive for ethyl alcohol. The evidence of chemical examiner is admissible without he being examined as per Indian Evidence FIR N0. 154/03 PS- Inderpuri Page 7/8 Act.
10. In the light of above discussion and the evidence on record, I am of the considered view that the prosecution has failed to prove the case against the accused beyond reasonable doubt. Eventhough, the sample of the case property has tested positive for alcohol contents, the recovery and seizure of the same cannot be attributed from the accused beyond reasonable doubt. The offence is therefore not made out against the accused.
11. Accordingly, the accused is acquitted for the offence under Section 61/1/14 of Punjab Excise Act with full honours. Bail bond cancelled. Surety Discharged. File be consigned to Record Room after due compliance. ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT) COURT ON 13.09.2011 METROPOLITAN MAGISTRATE05 DWARKA COURTS, DELHI.
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