Delhi District Court
State vs . Mannu on 30 May, 2013
State vs. Mannu
IN THE COURT OF SH ANUJ AGARWAL: MM01(SE)/
SAKET COURT: DELHI
State vs. Mannu
FIR NO. : 112/08
U/S : 61 of Punjab Excise Act
PS : Badarpur
JUDGMENT
a) Sl. No. of the case : 234/2A
b) Date of institution of the case : 20.11.08
c) Date of commission of offence : 15.02.08
d) Name of the complainant : Ct. Hoshiar Singh
e) Name & address of the : Mannu S/o Ram Bharosi
accused R/o Gali No. 13, Lakhapat Colony,
PhII, Meethapur, Badarpur,
New Delhi.
f) Offence charged with : 61 of Punjab Excise Act
g) Plea of the accused : Pleaded not guilty
h) Arguments heard on : 30.05.13
i) Final order : Acquitted
j) Date of Judgment : 30.05.13
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Mannu has been sent to face trial with the allegations that on 15.02.08 at about 8.50 PM at Senior Secondary FIR No. 112/08 PS Badarpur 1 of 6 State vs. Mannu School, Molarband, Subzi Mandi, Meethapur, Delhi, within the jurisdiction of PS Badarpur, accused was found carrying 150 quarter bottles of country made illicit liquor of Haryana State in scooter without any licence or permit. Investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused person was consequently summoned. A formal charge U/s 61 Punjab Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, only one witness has been examined on behalf of the prosecution.
4. PW1 HC Hoshiar Singh who has deposed as under : "on 15.02.08 I was posted at PS Badar Pur as Ct. While patrolling alongwith Ct. Mahesh we reached at Sr. Sec. School, Malarband. At that time accused present in court today was seen coming from Haryana side on scooter with defective number plate. On seeing us he started turning back. On the rear side of the scooter, one heavy Katta was there. On suspicion accused was apprehended and Katta was found containing 150 quarter bottles of Masti Malta Sharab. HC Kamal Kishore reached at the spot on information to whom the accused with case property was handed over. IO recorded my statement Ex. PW1/A. One FIR No. 112/08 PS Badarpur 2 of 6 State vs. Mannu bottle was taken as a sample. Case property sealed with seal of OM and seal after use was handed over to Ct. Mahesh. The case property was seized vide memo Ex. PW 1/B. IO prepared Tehrir and Ct. Mahesh got the case registered. Accused was arrested and personal search was conducted vide memo Ex. PW 1/C and D".
Witness identified the case property as Ex.P1 which was produced in unsealed condition with few empty and few filled bottles.
5. PE was closed by order of this court on 30.05.13.
Memorandum of statement of accused U/s 281 Cr.P.C was recorded wherein he has refuted the allegations levelled against him in toto. Accused chose not to lead any defence evidence in his favour.
6. I have heard the rival submissions and carefully perused the record.
7. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
8. As per the prosecution case, seizure memo of the liquor FIR No. 112/08 PS Badarpur 3 of 6 State vs. Mannu Ex.PW1/B was prepared before the preparation of the Rukka. However, the said documents would show that it contained the number of the FIR. It shows the serious infirmity in the case of prosecution as either the number of the FIR was inserted later on or it was prepared before the time it has been shown to have been prepared. Be that as it may the same creates a reasonable doubt in the story of prosecution. The reliance is placed on the judgment of Giri Raj Vs. State 83 (2000) DLT 201, Mohd. Hashim, Appellant Vs. State, 2000 CRI.L.J. 1510, Pawan Kumar Vs. Delhi Administration, 1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J. 114.
9. As per the case of the prosecution, the seal after use was handed over to Ct. Mahesh and was not given to any independent public person. Therefore tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773 and Bijay Vs. State (G.N.C.T. of Delhi), 2011 VI AD (DELHI) 562.
10. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the FIR No. 112/08 PS Badarpur 4 of 6 State vs. Mannu police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
11. In the present case, as per PW1 public persons were requested to join the raiding party but none of them agreed. However, no written notice was served upon them to join the proceedings in the present case or to face action U/sec. 187 IPC. Therefore it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
12. It is relevant to note that when the case property was produced FIR No. 112/08 PS Badarpur 5 of 6 State vs. Mannu before court, it was in unsealed condition and few bottles were empty. In a case of Excise Act, the identity of the case property forms the bedrock of the indictment. Once the same is shrouded in serious suspicion, the case of prosecution cannot be built upon the testimony of remaining formal witnesses in the absence of any independent public witnesses.
13. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Mannu stands acquitted of the offence Under Sec. 61 of Punjab Excise Act. Case property be destroyed after the expiry of the period of appeal. Ordered accordingly.
Announced in the open court (Anuj Agarwal) on 30.05.13 MM01(SE)/Delhi / 30.05.13 FIR No. 112/08 PS Badarpur 6 of 6