Delhi District Court
State vs . Sunita on 3 July, 2014
IN THE COURT OF SHRI DEEPAK DABAS
ADDL. CHIEF METROPOLITAN MAGISTRATE, WEST
TIS HAZARI COURTS, DELHI
FIR No. 292/2000
ID 02401R0276882003
U/S. 61 of Punjab Excise Act
PS Anand Parbat
State Vs. Sunita
JUDGMENT
1. Sr. No of case 51/AP/13
2. Date of commission of offence 8.9.2000
3. Name of complainant Ct. Ratan Kumar
4. Name of accused Sunita
w/o. Sh. Rakesh
r/o. Jhuggi No J9, Sarai Rohilla
Karol Bagh, Delhi.
5. Offence complained of U/S. 61 of Punjab Excise Act
6. Plea of accused Pleaded not guilty
7. Final order Acquitted
8. Date of such order 3.7.2014
1). FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION :
Accused has been sent for trial on the allegations that on 8.9.2000 at about 5.45 PM in the factory area, Gali No. 10, Ram Dharam Kanta, State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 1/ Anand Parbat, Delhi she was found in possession of a plastic katta containing 30 pouches of illicit liquor without any permit or licence.
2).
MISCELLANEOUS PROCEEDINGS : After completion of the investigation, chargesheet was filed by the police against accused. Cognizance of the offence was taken and the accused was summoned. Copy of the chargesheet was supplied to the accused and the matter was adjourned for arguments on charge.
3).
CHARGE / NOTICE FRAMED AGAINST THE ACCUSED : Charge for offence punishable u/s. 61/1/14 of Punjab Excise Act was framed against the accused, to which she pleaded not guilty and claimed trial.
4).
EVIDENCE LED BY THE PROSECUTION : In order to prove its case, prosecution has examined 7 witnesses. The testimony of the said witnesses in brief is as under :
(a) PW1 i.e. Ct. Rattan Singh was the complainant. He deposed that on 8.9.2000 he was posted at police station Anand Parbat and was on patrolling duty and at about 5.45 PM when he was present at Gali NO 10, Factory Area, he noticed the accused coming from side of Rohtak State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 2/ Road with a plastic bag in her right hand and the said accused on seeing the police tried to escape from there. He further stated that he overpowered the accused and on checking the plastic bag it was found containing pouches of illicit liquor and he informed the police station. He further stated that SI Praveen Kumar alongwith Ct. Vinod came to the spot. He further stated that he handed over the custody of accused alongwith recovered bag to the IO. He further stated that IO recorded his statement i.e. Ex. PW1/A and counted the pouches which were found to be 30 in all. He further stated that one pouch of liquor was taken out as sample and rest of pouches were kept in same bag. He further stated that IO filled up Form M29 and seal of PKD was affixed on the sample pulanda and the bag. He further stated that the liquor was taken into possession vide seizure memo Ex. PW1/B. He further stated that IO prepared rukka and got the case registered through Ct. Vinod. He further stated that thereafter IO prepared site plan at his instance and arrested the accused. He identified the accused as well as the case property as Ex. P1 and Ex. P2.
(b) PW2 i.e. HC Jagmal Singh was the MHCm. He deposed that on 8.9.2000, SI Praveen Kumar had deposited plastic katta and plastic State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 3/ box alongwith Form M29 in the malkhana and entry to this effect was made by him. He further stated that on 22.9.2000, the sample was sent through Ct. Vijay Pal to the excise lab.
(c) PW3 i.e. HC Vijay Pal was the sample carrier. He deposed that on 22.9.2000, he had deposited sample contained in plastic box duly sealed with seal of PKD in the excise lab and thereafter handed over the receipt to the MHCm.
(d) PW4(wrongly numbered as PW3) i.e. HC Surender Kumar was the DD Writer. He deposed that on 8.9.2000, he had recorded DD NO. 20B and the same was handed over to SI Praveen Kumar.
(e) PW5(wrongly numbered as PW4) i.e. HC Vijaypal was the sample carrier and was already examined as PW3.
(f) PW6(wrongly numbered as PW5) i.e. SI Praveen Kumar was the investigating officer. He deposed that on 8.9.2000 on receipt of DD NO. 20B, he reached the spot where PW1 produced the accused alongwith case property to him. PW5 deposed in detail about the investigation carried out by him in this case. PW5 also proved the documents prepared by him during the investigation of this case. PW5 State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 4/ was cross examined by Ld defence counsel. It is pertinent to mention that when the case property was produced in the court the seal on the bag was not legible. It is also pertinent to mention that on opening the bag, it was found containing only 28 pouches instead of 29 pouches and all were empty.
(g) PW7(wrongly numbered as PW6) i.e. HC Surender Singh was the duty officer. He deposed that on 8.9.2000, he had registered the FIR i.e. Ex. PW6/A.
5).
STATEMENT OF ACCUSED : Statement of accused was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to the accused. In the said statement under Section 313 Cr.P.C, accused has stated that she was falsely implicated in this case and nothing was recovered from her possession. Accused had not led any evidence in her defence.
6).
ARGUMENTS OF LD. APP FOR STATE AND LD. DEFENCE COUNSEL Ld APP for the State had argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the State had also argued that the factum of recovery of aforesaid State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 5/ liquor from the accused has been proved beyond reasonable doubt by the testimony of PWs and therefore, accused is liable to be convicted in this case.
On the other hand, Ld defence counsel had argued that no independent/ public witness was joined in the investigation of this case and the factum of recovery is doubtful. Ld defence counsel had also argued that the prosecution has miserably failed to prove its case against the accused and therefore, the accused is entitled of being acquitted in this case.
7).
REASONS FOR THE DECISION :
(a) The place from where the accused was apprehended was a very busy place/ industrial area but inspite of it, IO of the case failed to join public witnesses in the investigation of the case. The time of apprehension of the accused was 5.45 PM. IO in his examination in chief had stated that he had requested 45 passersby were requested to join the investigation. It is a matter of record that no written notice was given to the persons who had refused to join the investigation. In this regard reference can be made to a case titled as Anoop Joshi vs. State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 6/ State reported as 1992(2) Crimes 550 wherein the Hon'ble High Court of Delhi observed as under : "18. It is repeatedly laid down by this court in such cases it should be shown by police that sincere efforts have been made to join independent witnesses. In the present case, it is in evidence 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 rigors of laws while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
Reference can also be made to a case titled as Roop State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 7/ Chand vs. State of Haryana reported as 1989(2)R.C.R.(Criminal
504) wherein the Hon'ble Punjab & Haryana High Court has held as under:
"3. I have heard the Ld. Counsel for the parties and have 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 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."
In the aforesaid case it was further observed that:
"4. It is well settled principal of law that the investigating agency should join independent witnesses at the time of recovery of contraband State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 8/ 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 State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 9/ 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 makes the prosecution case highly doubtful".
(b) It is also pertinent to mention that the prosecution has failed to produce any documentary evidence or the DD entries regarding departure of PW1 from the police station. This fact also creates a doubt in the prosecution version.
(c) It is also pertinent to mention that as per prosecution version, seal after use was handed over by PW5 to PW1. Both of them are police officials. Seal was not handed over to any independent witness. In such a situation the possibility of tampering with the case property cannot be ruled out.
(d) As per testimony of PW1 the seizure memo of the liquor is Ex.
PW1/B which was prepared prior to the registration of the present case. However, a perusal of Ex. PW1/B shows that the FIR Number as State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 10/ well as other particulars of the present case are mentioned on it. No explanation has come from the prosecution as to how the FIR Number as well as other particulars of the present case surfaced upon said document which was prepared prior to the registration of the present case. This fact also casts a doubt upon the prosecution version.
8).
CONCLUSION : Keeping in view the facts and circumstances and the discussion made hereinabove, I am of considered view that prosecution has failed to prove its case against accused beyond reasonable doubt. Hence, accused is hereby acquitted in present case.
Judgment dictated and DEEPAK DABAS pronounced in the open Court ACMM:WEST DISTT:DELHI. (This judgment consists of 11 pages) State Vs. Sunita; FIR No.292/2000; PS Anand Parbat 11/