Delhi District Court
State vs . Vinod Kumar on 28 April, 2018
IN THE COURT OF SH. KISHOR KUMAR, MM-03, SOUTH WEST DISTRICT, ROOM NO.11, DWARKA COURTS, DELHI. FIR No. : 1661/15 U/s : 33 Delhi Excise Act P.S. : Bindapur State Vs. Vinod Kumar JUDGMENT:
a) Sl. No. of the Case : 146/8 & 433895/16
b) Name & address of the : Ct. Anu Yadav, No. 1719/SW complainant. PS: Bindapur
c) Name & address of : Vinod Kumar S/o Sh. Makhan Singh accused R/o D-69, Bhagwati Vihar, Uttam Nagar, New Delhi.
d) Date of Commission of : 09.12.2015 offence e) Offence complained off : U/s 33 Delhi Excise Act f) Plea of the accused : Pleaded not guilty. g) Final Order : Acquitted h) Date of such order : 28.04.2018 Date of Institution : 02.12.2016 Final arguments heard on : 28.04.2018 Judgment Pronounced on : 28.04.2018
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on FIR No: 1661/15 state v. vinod kumar Page No.1/8 09.12.2015 at about 8:40 am at FSL Office, DDA Flats, Bindapur, Delhi, Ct. Anu Yadav, while he was on patrolling duty, apprehended the accused with 75 quarter bottles of Asli Santra Masaledar Desi Sharab of 180 ml each for sale in Haryana, carried by him in plastic katta. The Illicit liquor was seized. Consequently, FIR was registered against the accused and investigation was carried out.
2. After investigation, challan for offence U/s 33 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33 Delhi Excise Act was framed against the accused on 08.03.2017, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as five witnesses.
FIR No: 1661/15 state v. vinod kumar Page No.2/8
5. PW1 Ct. Nand Kumar joined the investigation with IO PW2 HC Chet Ram. PW2 HC Chet Ram deposed that on 09.12.2015, on receipt of DD no. 31 B Ex. PW2/A, he/PW2 along with Ct. Nand Kumar/PW1 went to the spot i.e. FSL office, DDA Flats, Bindapur where they met Ct. Anu Yadav who had apprehended the accused with illicit liquor. PW2 tried to join 4-5 public persons in the investigation but they refused and due to paucity of time, no written notice was served upon them. He checked the plastic katta and it was found containing 75 quarter bottles of Asli Santra Masaledar Desi Sharab, for sale in Haryana only. PW2 took out two sample bottles and sealed with the seal of CR and remaining 73 quarter bottles were placed in the same plastic katta and sealed with the seal of CR. Form M-29 was prepared and thereafter PW2 handed over the seal to Ct. Nand Kumar/PW1. The case property was taken into police possession vide seizure memo. PW2 recorded the statement of Ct. Anu Yadav and prepared the rukka and FIR No: 1661/15 state v. vinod kumar Page No.3/8 got the FIR registered through Ct. Anu Yadav who came at the spot with original rukka and copy of FIR. PW2 also prepared the site plan at the instance of Ct. Anu Yadav. Seizure memo of Case property is Ex. PW1/A, arrest memo is Ex. PW1/B, personal search memo is Ex. PW1/C and disclosure statement is Ex. PW1/D. The rukka is Ex.PW2/A and site plan is Ex. PW2/B. PW2 further deposed that on 01.03.2016, he sent the sample bottle of present case to ITO office for analysis through HC Tara Chand. He also proved the order Ex. P-1 (OSR) vide which the case property was disposed off.
6. PW3 HC Tara Chand deposited the sample bottles with Excise Office vide RC Ex. PW3/A.
7. PW4 ASI Jagbir Singh collected the Excise result and filed the final charge sheet in the present case.
8. PW5 Ct. Anu Yadav apprehended the accused with FIR No: 1661/15 state v. vinod kumar Page No.4/8 illicit liquor and thereafter informed the PS. HC Chet Ram came at the spot, recorded statement Ex. PW5/A of Ct. Anu Yadav and conducted the investigation.
9. After completion of prosecution evidence, all the incriminating evidence was put to accused U/s 313 Cr.P.C and his explanation was recorded, wherein he denied all the incriminating evidence against him.
10. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
11. It is seen that in the present case the case property stood destroyed as per order Ex. P1. As per Ex. P1, one sample each have been kept in the Malkhana for evidence purpose. It is seen that in the testimonies of none of Pws the said sample was produced in the court. Not only this, as per order Ex P1 the photography and videography was FIR No: 1661/15 state v. vinod kumar Page No.5/8 also done of the destruction activity but neither the photographs nor the videography has been filed on record. Non filing of these material things and the sample allegedly kept in the malkhana for evidence purpose, makes very fact of destruction of the case property of the present case 'doubtful' and causes dent in the case of the prosecution deeply. MHC(M) concerned has never been examined by the prosecution.
12. Apart from this, the testimonies of the witnesses examined on record do suffer material contradiction and inconsistencies which go to the very root of case of the prosecution making it unbelievable and testimonies of the prosecution witnesses untrustworthy.
13. PW1 Ct. Nand Kumar in his cross-examination deposed that form M-29 was prepared before tehrir was sent to PS and rest of documents were prepared after registration of the FIR but PW2 has deposed in FIR No: 1661/15 state v. vinod kumar Page No.6/8 contradiction to PW1 that only seizure memo was prepared before tehrir was sent to PS and rest of the documents were prepared after registration of the FIR. The accused was pre known to the IO hence, false implication of the accused at his hands cannot be ruled out. In a case titled as State of UP Vs. Vallabdas, AIR 1985 SC 1384, it was observed that -
If there are any material discrepancy and if the discrepancy go to the root of the case/matter, they will have some bearing on the prosecution case.
14. The case of the prosecution is further seen with doubt for the reason that though the accused has been apprehended with the case property from a place where there were residential houses, shops and public persons were passing through as per prosecution witnesses, however no public witness was joined to the proceedings at all. The prosecution witnesses deposed that public persons were asked to join the investigation but they refused. However upon this, the IO did not issue any FIR No: 1661/15 state v. vinod kumar Page No.7/8 notice to them nor noted down their names and particulars. In a case titled as Avdhesh etc. Vs. State of MP, AIR 1998 SC 1158, it was observed that-
Place of occurrence is a busy public place, no independent witness examined by the prosecution. The case of the prosecution is doubtful and the conviction is improper.
In AIR 1978 SC 59 in the case titled as Bir Singh V. State of U.P., it has been observed that -
Examination of witnesses - Duty of prosecution - Independent witnesses available - Examination of only interested witnesses - Adverse inference - Justified.
15. In view of the above discussion, it is held that prosecution miserably failed to prove its case against the accused beyond reasonable doubt. Resultantly, accused is acquitted of the charged offences. Digitally signed by KISHOR KISHOR KUMAR KUMAR Date:
2018.05.02 15:59:08 +0530 Dictated & Announced in Open Court (Kishor Kumar) On the 28th day of April, 2018 MM-03/South-West/Delhi 28.04.2018 FIR No: 1661/15 state v. vinod kumar Page No.8/8