Delhi District Court
State vs . : Sugna on 8 February, 2012
IN THE COURT OF SH. SUDHANSHU KAUSHIK: MM:SAKET:DELHI
State Vs. : Sugna
FIR No. : 162/10
U/s : 61 of Excise Act
PS : Okhla Industrial Area
Date of Institution: 31.05.2010
Date of Judgment reserved for: 08.02.2012
Date of Judgment: 08.02.2012
J U D G E M E N T
A. Sl. no. of the case 1564/2/10
B. Offence complained of u/s. 61/1/14 of Excise Act
or proved
C. Date of Offence 18.04.2010
D. Name of the complainant HC Samar Pal
No. 468/SE, PSOIA
New Delhi
E. Name of the accused Sugna
wife of Panchu Ram
r/o Jhuggi Tehkhand Chowk,
near MTNL office, OIA,New
Delhi
F. Plea of the accused Pleaded not guilty
G. Final order Acquitted
H. Date of Order 08.02.2012
The case of the prosecution is that on 18.04.2010, at around 6.00 pm, at Tehkhand Chowk, Okhla Industrial Area (OIA) PhI, New Delhi, the accused Sugna was found in possession of 21 quarter bottles of illicit liquor and 18 bottles of King Fisher Beer. She was not possessing FIR No. 162/10 1/11 any permit or licence for the liquor which was recovered from her. BRIEF FACTS
2. On the above said date, PW2 HC Samar Pal, PW5 Ct Sanjay Kumar and PW1 WCt Rakhi were on patrolling duty at Tehkhand Chowk. During the course of patrolling duty, they reached near the MTNL office, Tehkhand and saw a lady coming from the opposite direction. The lady was carrying a plastic bag (katta) in her hand and on seeing the police officials, she tried to flee from the spot. The police officials became suspicious. They chased and apprehended the lady who disclosed her name as Sugna wife of Panchu Ram. On checking the bag, it was found that the accused was carrying 10 quarter bottles of bonnie special whisky, 11 quarter bottles of silver jet whisky and 18 bottles of King Fisher Beer. The recovered illicit liquor was seized. 45 passersby were requested to join the investigation but they all refused and went away without disclosing their names. The samples were drawn and the remaining bottles were sealed with the seal of 'RS'. In the said background, the present FIR No. 162/10 under Section 61 of the Excise Act was registered at PS O.I.A.
3. The necessary investigation was carried out and requisite documentation was done at the spot. The sealed samples were sent for chemical analysis and on completion of the investigation, chargesheet was put to the Court. The copies of chargesheet were supplied to the FIR No. 162/10 2/11 accused and charge under Section 61 of Excise Act, 1961 was framed against her to which she pleaded 'not guilty' and claimed trial. WITNESSES EXAMINED
4. In order to establish the charges, the prosecution examined five witnesses. The brief gist of their testimony is as under:
PW1 WCt Rakhi (First Recovery Witness) has mentioned that on 18.04.2010, she was on petrolling duty along with HC Samar Pal and Ct Sanjay. She mentioned that the illicit liquor was seized vide seizure memo Ex PW1/A. She carried out the personal search of the accused vide memo Ex PW1/B and the arrest memo is Ex PW1/C. She admitted in her cross examination that number of shops were located near the spot from where the accused was apprehended but the shop keepers were not asked to join the investigation.
PW2 HC Samar Pal (Complainant/Investigating Officer) has deposed that he seized the illicit liquor vide seizure memo Ex PW1/A and sealed it with the seal of 'RS'. The rukka prepared by him is Ex PW2/A and the site plan is Ex PW2/B. He stated in his cross examination that the seizure memo and the site plan were prepared by him before sending Ct Sanjay alongwith the rukka to the police station. He stated that the seal after use was handed over to Ct Sanjay, who returned the seal to him after they reached the police station.
PW3 Ct Abhishek (Police Official, who deposited the sample FIR No. 162/10 3/11 at Excise Lab) has mentioned that he does not remember the date on which the same were deposited by him.
PW4 HC Manbir Singh (Duty Officer) has mentioned about the registration of the FIR. He stated that he registered the FIR Ex PW4/A on the basis of the rukka brought by Ct Sanjay.
PW5 Ct Sanjay (Second Recovery Witness) has deposed on the lines of WCt Rakhi. He has supported the recovery stating that a plastic bag containing bottles of illicit liquor was recovered from the accused. He stated in his cross examination that public persons were requested to join the investigation. He also admitted that there were number of shops near the spot but the shopkeepers were not requested to join the investigation.
5. Accused in her statement under Section 281 read with 313 of the Cr.P.C., 1973, pleaded innocence and claimed that she has been falsely implicated.
ARGUMENTS:
6. I have heard Ld. APP for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. APP has contended that prosecution has proved its case beyond shadow of doubt. He has argued that all the material witnesses have entered into witness box and they have fully supported the case of prosecution. He has also argued that minor contradictions are bound to FIR No. 162/10 4/11 appear in any criminal matter and in the case in hand, there is no material contradiction which may create any doubt about the authenticity and veracity of the prosecution case and all the documents have been duly proved.
8. Ld. Defence Counsel has assailed the case of the prosecution. It has been argued that there is no justification as to why independent witnesses were not joined in investigation despite the fact that the police was having prior information. He has also argued that there are material contradictions and discrepancies and it becomes evident that illicit liquor had been planted upon the accused.
9. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
NO PUBLIC WITNESSES JOINED THE INVESTIGATION
10. Admittedly, no public witness has been joined in the investigation. The recovery witnesses have mentioned that passersby were passing from the spot but none of them were joined in the recovery proceedings. It has been mentioned by HC Samar Pal (PW2) that three four passersby were requested to join the investigation but they all declined and went away without revealing their names and addresses. On appreciation of the testimony of police witnesses, it is evident that they have not joined any independent public witness despite availability. FIR No. 162/10 5/11 Stereo typed version churned by them does not inspire confidence. The record shows that no sincere efforts were made by the investigating officer to join independent witnesses. The police officials could have at least noted down the names of the persons who refused to join the investigation or they should have made efforts to join some independent witness from the locality. They have very casually mentioned that passersby were requested to join the investigation but they refused. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it has been held that such casual explanations that the public persons refused to join the proceedings are unreliable. Similarly, in Pradeep Narayan Vs. State of Maharashtra reported in AIR 1995 S.C. 1930, it was observed that failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the accused.
11. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to FIR No. 162/10 6/11 be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. It puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses and more so, when they were available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under :
"Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
FIR No. 162/10 7/11
12. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law. There is nothing on record to demonstrate that any genuine effort was made by the police officials to join an independent witness.
13. The record shows that there was ample time with the police officials to join an independent witness in the investigation. The recovery was made in the evening at around 6.00 pm. It is not the prosecution's case that no public witness was available at the spot. All the witnesses FIR No. 162/10 8/11 have categorically admitted that public persons were passing from the spot. Admittedly, there were number of shops near the spot. The police witnesses have admitted the said fact during their cross examination. Inspite of the said fact, no efforts were made by the police officials to join an independent person in the investigation. The investigating officer has not joined any independent public witness despite availability. The safeguard provided under section 100 (4) Cr PC is not a mere formality. It is meant to ensure that credibility can be attached to the recovery proceedings. Failure to comply with the said provisions despite the fact that public persons were easily available at the spot is fatal for the prosecution's case.
COMPLAINANT HIMSELF IS THE INVESTIGATING OFFICER
14. The record reveals that the entire investigation has been done by HC Samar Pal, who is also the complainant. There was ample time with the police officials to convey the information to the local police station to ensure that the investigation is carried out by an independent police official, who was not a witness of recovery. The same has not been done. No explanation has been put forward by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer.
PREPARATION OF THE DOCUMENTS AT THE SPOT IS DOUBTFUL
15. The record further reveals that on the recovery memo, the FIR FIR No. 162/10 9/11 number has been mentioned. HC Samar Pal (PW2) has stated that he seized the illicit liquor vide seizure memo Ex PW1/A and thereafter, he prepared the rukka Ex PW2/A. Ct Sanjay (PW5) took the rukka to the police station and returned to the spot after getting the FIR registered. WCt Rakhi (PW1) has also narrated similar chain of events. It is the case of the prosecution that the seizure memo was prepared before the registration of FIR. In case, it was prepared before registration of FIR then how the FIR number has been mentioned therein. It has not been explained by the prosecution. In such circumstances, inference has to be drawn that either FIR was recorded prior in time or the seizure memo was prepared later on. The said fact casts doubt over the credibility of the investigation. The benefit of which ought to be given to the accused.
16. The record shows that there are number of infirmities in the version of the prosecution and missing links which creates doubt over the story of the prosecution. The benefit of which ought to be given to the accused. It is also observed that departure and arrivals of the police officials of the police station have not been proved to lend credence to the version of the prosecution.
17. In view of the above said discussion, I find it to be a fit case where the accused should be granted benefit of doubt. Accordingly, the accused Smt Sugna is granted benefit of doubt and stands acquitted of the charges under Section 61 of Excise Act, 1961.
FIR No. 162/10 10/11
18. Bail Bond stands cancelled. Surety stands discharged. Endorsement placed on the documents of the surety be cancelled and the same be returned to him, if retained on record. Case property be confiscated to the state and same be destroyed.
19. File be consigned to record room after necessary compliance.
Announced in open Court SUDHANSHU KAUSHIK)
on this day of 08.02.2012 METROPOLITAN MAGISTRATE02
SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 162/10 11/11