Delhi District Court
State vs . Rajesh, Fir No. 494/06, Ps Mukherjee ... on 19 November, 2011
State Vs. Rajesh, FIR No. 494/06, PS Mukherjee Nagar, U/s 61-1-14 Excise Act, Page No.1 IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. State Vs. Rajesh FIR No. 494/06 U/s. : 61/1/14 Excise Act. P.S. : Mukherjee Nagar JUDGEMENT
1. Sl. No of the case : 644/3
2. Date of Institution : 12.01.2007
3. Date of the commission of the offence : 01.11.2006
4. Name of the accused : Rajesh
S/o Sh. Bishan Singh
5. Name of the complainant : HC Vijay Pal
6. Offence complained of : 61/1/14 Excise Act.
7. Plea of accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of such order : 19.11.2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused has been sent to face trial under section 61/1/14 Punjab Excise Act, by the SHO PS . Mukherjee Nagar.
2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that, on 01.11.2006 at about 7.05 p.m at Nirankari Road, near Nirankari Public School, Delhi, the accused was found in possession of a plastic State Vs. Rajesh, FIR No. 494/06, PS Mukherjee Nagar, U/s 61-1-14 Excise Act, Page No.2 cane containing 8 bottles of illicit liquor without any licence or permit of Govt. of N. C. T of Delhi. Therefore, the present FIR under section 61/1/14 Punjab Excise Act was registered at PS. Mukherjee Nagar. After completion of the investigation, charge sheet was prepared and filed in the Court.
3. The accused was summoned by the court for facing trial for the aforesaid offence. The copy of the challan and documents annexed therewith were supplied to the accused in compliance of Section 207 Cr. P. C. Prima facie charge U/s. 61/01/14 Punjab Excise Act was made out against the accused. Accordingly, on 27.08.08 the charge was framed by Ld. Predecessor of this court. The accused pleaded not guilty to the same and claimed trial. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined only two witnesses. PW1HC Narender Kumar has deposed that on 01.11.2006 he was posted as a duty officer and on that day, he had registered the present FIR. He has proved the said FIR as Ex.PW1/A and the endorsement on rukka as Ex.PW1/B.
5. PW2 Ct. Sunil Kumar has testified that on 01.11.06 he was posted as Ct. at PS Mukherjee Nagar and on that day, he alongwith HC Vijay Pal was on patrolling duty in the beat area. He has further deposed that at about 7.05 pm when they reached at Nirankari Road, near Nirankari Public School, Indira Vikas Colony, one person came from Mukherjee Nagar bandh side alongwith one white plastic cane in his right hand. He has further stated that when he saw them, he turned back and started rushing away from the spot. He has further deposed that they stopped him after 2025 steps and after interrogation, he disclosed his name as Rajesh Kumar. He has further deposed that HC Vijay Pal opened the said cane and found to be smelling of liquor. Thereafter, HC Vijay Pal asked 45 public person to join the investigation, but none agreed and went away without disclosing their names and addresses. The said cane and sample bottles sealed with the seal of V.P. The MHC(M) had produced the case property i.e. one empty white plastic cane duly sealed with the seal of V.P. The same is exhibited as Ex.P1.
6. The entire case of the prosecution is based upon the alleged recovery of illicit liquor from the possession of the accused. However, the prosecution has failed to produce the said illicit liquor that was recovered from the accused. The prosecution cannot substantiate its case without production of the said liquor in the State Vs. Rajesh, FIR No. 494/06, PS Mukherjee Nagar, U/s 61-1-14 Excise Act, Page No.3 court. The cane that was produced in the court in the testimony of PW2 was empty. Therefore, there was no probability of production of the said liquor in the court in future. Thus, examination of the remaining PWs would have been a futile exercise. Hence, PE was closed.
7. Thereafter, statement of the accused U/s. 313/281 Cr. P. C was recorded. All the incriminating evidence were put to the accused. In the said statement the accused has stated that he has been falsely implicated in the present case and he has further stated that he is innocent. However, he chose not to lead evidence in defence. Accordingly, the matter was listed for final arguments.
8. I have heard the Ld. APP for the state and Ld. Counsel for the accused. I have carefully perused the case record.
9. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving the guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.
10. In order to sustain conviction U/s.61/1/14 Punjab Excise Act the prosecution is required to prove the following ingredients: i. The accused was found in the possession of the illicit liquor. ii. He/She was carrying the same without any licence/permit.
11. The entire case of the prosecution is solely dependent upon the recovery of illicit liquor from the accused. However, the alleged liquor has not been produced in the court. The plastic cane that has been produced in the court in the testimony of PW2 was empty. If for sake of the arguments, it is presumed that cane was filed with liquor at the time of deposition of the same at the malkhana and subsequently, it leaked, then also no DD entry has been placed on record to manifest that illicit liquor had leaked from the said cane. Hence, an important/material substantive piece of evidence is missing. The non production of illicit liquor in the court has proved fatal to the prosecution case.
12. The prosecution is required to prove that the alleged illicit liquor was recovered from the possession of the accused. The complainant HC Vijay Pal and PW2 Ct. Sunil Kumar are the material witnesses, as they are the alleged recovery witnesses. However, the prosecution has failed to place and prove on record the State Vs. Rajesh, FIR No. 494/06, PS Mukherjee Nagar, U/s 61-1-14 Excise Act, Page No.4 departure entry of the said witnesses vide which both of them left the PS for the purpose of patrolling, to establish their presence at the spot of alleged recovery. Therefore, the presence of the said witnesses at the alleged place, time and date of recovery of the illicit liquor from the possession of the accused is doubtful.
13. Moreover, the seizure memo Ex.PW2/A of the alleged illicit liquor finds mention the number of FIR, written on its top in the same handwriting, same flow and the same pen. It is the case of the prosecution that the FIR was registered after the seizure of the aforesaid illicit liquor and after the aforesaid seizure memo Ex.PW2/A was prepared. Therefore, in these circumstances, I have failed to comprehend how the aforesaid facts regarding the number of the FIR, came to the knowledge of the IO even prior to the registration of the FIR. This fact further shows that the case of the prosecution suffers with material infirmities and the police officials have concocted a false story to implicate the accused. I find support from the findings given by the Hon'ble Delhi High Court titled as Mewa Ram Vs. State, 2000 Cri.L.J.114, wherein it was held as under:
"In the instant case, the FIR (Ex.PW6/A) was admittedly registered at the Police Station at 7.40 p.m. The evidence of ASI Mange Ram (PW6) shows that the accused was apprehended at 6.30 p.m. and the formalities of search and seizure of the contraband were completed by 7 p.m. And after completion of the said formalities, he sent the rukka (Ex.PW6/A) to the Police Station on the basis of which the FIR (Ex.PW6/A) was registered. Surprisingly, the seizure memo (Ex.PW2/B), the search memo (Ex.PW2/C) and the special report (Ex.PW6/D), alleged to have been prepared on the spot, bear the number of the FIR (Ex.PW6/A). The number of the FIR (Ex.PW6/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicate that these documents were prepared at the same time. The prosecution has not offered any explanation as to how and under what circumstances number of FIR (Ex.PW6/A) had appeared on the top of the aforesaid documents. If the FIR (Ex.PW6/A) was registered after the alleged recovery had taken place, then these documents could not have recited the number of the FIR (Ex.PW6/A) at all. This circumstance gives rise to two inferences, firstly the FIR (Ex.PW6/A) was recorded prior to the alleged recovery of the contraband and secondly, number of the FIR (Ex.PW6/A) was State Vs. Rajesh, FIR No. 494/06, PS Mukherjee Nagar, U/s 61-1-14 Excise Act, Page No.5 inserted in these documents after registration of the FIR. In both the situations, it seriously reflects upon the veracity of the prosecution version and the benefit arising out of such a situation must necessarily go to the accused. The aforesaid circumstance has shaken the foundation of the whole prosecution case to an irreparable extent. Consequently, the appellant's conviction and sentence under Section 18 of the Act cannot be sustained."
14. The alleged incident pertains to have occurred at about 7.05 pm at Nirankari Road, near Nirankari Public School, Delhi. Hence, it can be convincingly presumed that there were many public persons available at the spot of alleged recovery. Moreover, PW2 Sunil Kumar in his examination in chief has admitted that 45 public persons were present at the spot. The criminal law has duly empowered the investigating officer/police officials to initiate action against the persons who refuse to participate in the investigation. But still, IO neither made any efforts to join public/independent witnesses nor advanced any plausible explanation as to why no independent witnesses were examined by him. Hence, story of the prosecution is further shrouded in suspicion.
15. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witnesses that are examined by the prosecution in the present case are police witnesses who are interested in the success of the prosecution case and therefore, the probability of him being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in PAWAN KUMAR Vs. DELHI ADMINISTRATION 1987 CC 585 DELHI HC.
16. Keeping in view the fact that the version of PWs have remained uncorroborated by any other independent witness regarding the alleged recovery of illicit liquor, it will be highly unsafe to rely upon their version to pass the order of State Vs. Rajesh, FIR No. 494/06, PS Mukherjee Nagar, U/s 61-1-14 Excise Act, Page No.6 conviction against the accused. It has been held in 1975 CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural ' held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
17. In view of the above discussion, the prosecution has not only failed to produce the alleged illicit liquor in the court but has also failed to advance any justifiable explanation as to why the same could not be produced. Besides that, no cogent and convincing evidence to prove the alleged presence of the complainant/recovery witness at the alleged spot of recovery has been produced.
18. Therefore the prosecution has failed to discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to the accused Rajesh and he is acquitted of the charge U/s. 61114 Punjab Excise Act. Bail bonds stands canceled. Surety stands discharged. Endorsement on surety's documents, if any, be canceled and original documents if any of surety retained on record be returned to the person legally entitled. The case property be forfeited to the State.
File be consigned to record room after due compliance.
Announced in the open court on 19.11.11.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE ROHINI/DELHI State Vs. Rajesh, FIR No. 494/06, PS Mukherjee Nagar, U/s 61-1-14 Excise Act, Page No.7 FIR No. 494/06 PS Mukherjee Nagar U/s 61/1/14 Excise Act.
States Vs Rajesh
19.11.11
Present: Ld. APP for the State.
Accused Rajesh on bail with counsel.
Statement of the accused U/s 313/281 Cr .P. C recorded . The accused has submitted that he does not want to lead defence evidence. Put up for final arguments at 2.00 pm. (Dheeraj Mor) MM/Rohini/Delhi 19.11.11.
At. 2.00pm
Present: As above.
Final arguments heard. Case file perused.
Vide my separate judgment announced in the open court today, the accused Rajesh stands acquitted for the offence punishable U/s 61/1/14 Excise Act.
The surety is discharged and bail bond stands cancelled. Original documents, if any, be returned to the persons legally entitled after cancellation of endorsement, if any, on the said documents. The case property be confiscated to the State.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM/Rohini/Delhi 19.11.11.