Delhi District Court
State vs . Vishnu on 27 November, 2018
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IN THE COURT OF Ms. NEHA GUPTA SINGH,
METROPOLITAN MAGISTRATE-02,-NORTH DISTRICT,
DELHI
STATE VS. Vishnu
FIR NO: 38/12
P. S. Samai Pur Badli
U/s 33 Delhi Excise Act
JUDGMENT
Registration No. of the case : 5281714 -2016 Date of its institution : 09.07.2012 Name of the complainant : HC Chander Singh Date of Commission of offence : 30.01.2012 Name of the accused : Vishnu S/o Sh. Ajodhi Chaudhary R/o near Durga Mandir, Rana Park, Siraspur, Delhi.
Also at: Villagae Mohammad Pur, PO Parcha, District Sitamadhi Bihar.
Offence complained of : U/s 33 Delhi Excise Act Plea of accused : pleaded not guilty Case reserved for orders : 25.10.2018 Date of judgment : 27.11.2018 Final Order : Acquitted for offence 33 Delhi Excise Act. -: 2 :-
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. The prosecution story in brief is that on 30.01.2012 at about 7.35p.m. at Godown Khasra No. 693, in front of Shiv Mandir, Rama Park, Siras Pur Village, Delhi, within the jurisdiction of PS S.P. Badli, you were found in possession of illicit liquor as per seizure memo Mark X without any permit or license, and thus accused thereby committed an offence punishable U/s 33 of Delhi Excise Act, 2009. FIR was registered.
2. Investigation was completed and police report under section 173 Cr.P.C. was filed under sections 33 Delhi Excise Act. Cognizance was taken and accused was summoned.
3. Copy of charge sheet and documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on notice were heard and notice against accused Vishnu was framed under section U/s 33 of Delhi Excise Act by my Ld. Predecessor vide order dated 18.03.2014. Accused pleaded not guilty and claimed trial.-: 3 :-
5. In order to bring home the guilt of the accused prosecution examined five witnesses.
6. PW-1 HC Ved Prakash deposed that on 30.01.2012, he was posted at PS Samai Pur Badli and was working as duty officer and on the basis of rukka, he registered the present case and proved copy of FIR of the present case as Ex.PW1/A and he also proved endorsement on the rukka as Ex.PW1/B.
7. PW-2 Ct. Sapan Kumar deposed that on 27.02.2012 he received the sample and form M-29 of the present case from MHC(M) vide road certificate No. 25/21/12, Mark A and went to ITO Excise Office and the said sample and form M-29 were deposited at Excise Office, Vikas Bhawan, ITO and thereafter, he returned back to PS and deposited the copy of road certificate to MHC(M).
8. PW3 Ct. Sandeep Kumar, deposed that on 30.01.2012 he was on patrolling duty in beat No.4. At about 7.20p.m. HC Chander Singh called him at Samudai Bhawan, Siras Pur, Village where he met with him and he informed him about the secret information and thereafter, -: 4 :- he formed a raiding party. Secret informer took them at main road Shiv Mandir, Siraspur. HC Chander Singh asked 4-5 public persons to join the investigation but none agreed. Thereafter, on the pointing out of secret informer, they over powered accused Vishnu in the gali with 12 carton box of illicit liquor. IO filled form M-29 and seized the recovered liquor vide seizure memo Ex.PW3/A. Accused was arrested and personally searched vide memo Ex.PW3/B and Ex.3/C. He also proved the case property as Ex.P1 and P2.
9. PW4 ASI Chander Singh deposed that on 30.01.2012 he was on patrolling duty and at about 7.15p.m. when he was present near community center, Siraspur, one secret informer informed that one person is standing in the Godam Wali Gali near Shiv Mandir carrying illicit liquor.
On this information he called another constable from beat no.4 namely Ct. Sandeep. Both of them went to the spot and upon pointing out of secret informer, accused was apprehended by them and accused was found in possession of 12 cartons out of 10 box containing 50 quarter each of Narangi Special Masaledar Deshi Sharab. -: 5 :- He filled form M-29 and seized the samples as well as the plastic katta of liquor vide seizure memo Ex.PW3/A and prepared rukka Ex.PW4/A and got the case registered through Ct. Sandeep. He also proved case property Ex.P1 & P2.
10. PW-5 ASI Ajay Pal deposed that on 30.01.2012, Duty Officer told him to investigate in the present case as per the direction of SHO and he went to Siraspur, Godam Wali Gali, near Shiv Mandir. There he met with HC Chander Singh who handed over the custody of accused Vishnu, seizure memo, form No.29, possession of case property to him. He proved site plan Ex.PW5/A and he also proved the disclosure statement of accused as Ex.PW5/B. He also proved arrest memo and personal search memo of accused as Ex.PW3/B and Ex.PW3/C.
11. Thereafter, prosecution Evidence was closed. Statement of accused U/s 313Cr.P.C was recorded in which all the incriminating evidence was put to accused explained to him in his vernacular language. He pleaded his innocence. He did not lead any defence evidence.
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12. Final arguments were lead for state by Ld. APP and for accused Ld. Counsel lead the arguments.
13. I have heard the arguments addressed by the Learned APP for state and the accused himself and carefully perused the record.
14. It is argued by Sh. Dinesh Kumar Ld. APP for the state that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit alcohol without permit. It is further stated that there are ocular and documentary evidence on record to bring home the guilt of the accused.
15. Per contra it is argued by the Ld. Counsel for the accused that non joinder of public witness despite availability cast shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused he is falsely implicated in present case. There are no independent evidence against him.
16. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal -: 7 :- law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
17. In present case prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened at 7.35 pm and it is admitted fact that public persons were available at the spot. It was held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public -: 8 :- persons must be made witness.
18. In present case IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were admittedly present. Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
19. In present case recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, an inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused. In such circumstances fairness of investigation is doubted. Reliance can be placed on the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that -: 9 :- "5. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
20. In present case the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case -: 10 :- property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
21. In the absence of any cogent evidence against the accused, he is acquitted for offence under section 33 Delhi Excise Act. Case property be confiscated to the state and the same be destroyed.
Announced in the open court NEHA Digitally signed
by NEHA GUPTA
On this 27th November 2018 GUPTA SINGH
Date: 2018.11.27
SINGH 16:07:58 +0530
(Neha Gupta Singh)
Metropolitan Magistrate-02,
North Rohini Delhi