Delhi District Court
In Re: State vs Shakuntala on 18 January, 2010
1
IN THE COURT OF SHRI GAURAV RAO: METROPOLITAN
MAGISTRATE: DELHI
In Re: STATE VERSUS SHAKUNTALA
F.I.R. No: 1294/99
U/s 61/1/14 Punjab Excise
Act
P.S. Nangloi
Date of Institution of Case : 18.08.2000
Date of Judgment Reserved for: 18.01.2010
Date of Judgment : 18.01.2010
JUDGEMENT:
(a) The serial no. of the case : 2196/2/08
(b) The date of commission of offence: 29.12.1999
(c) The name of complainant : HC Mahender Singh
(d) The name, parentage, : Shakuntala of accused W/o Murari, R/o H. No. 49, Rishal Garden, Delhi Present Address : As above
(e) The offence complained of: U/s 61 of Punjab Excise Act 1914 2
(f) The plea of accused : Pleaded not guilty
(g) The final order : ACQUITTED
(h) The date of such order : 18.01.2010 Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 29.12.1999 at about 5.35 PM at opposite to H. No. 49, Rishal Garden, Delhi within the jurisdiction of police station Nangloi accused Shakuntala was found in possession of one plastic katta containing 3 bottles of Tohfa Desi Masaledar, 35 half Chandani Desi Masaledar, 15 quarter bottles and 62 pouches of illicit liquor without any permit or licence and thereby the accused Shakuntala committed offence u/s 61 of Punjab Excise Act 1914.
2. Charge sheet was filed in the court and vide order dated 17.04.2003, charge u/s 61/1/14 Punjab Excise Act was framed against accused to which she pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined five witnesses. Thereafter PE was closed and the statement of the accused was recorded wherein she claimed herself as innocent however, did not offer to lead any evidence in her defence.
3A brief scrutiny of the evidence recorded in the matter is as under.
4. PW 1 HC Ratan Singh proved the registration of the case FIR bearing no. 1294/99 as Ex.PW1/A.
5. PW 2 Reet Parkash deposed that on 29.12.1999, he along with his friend Ram Kishore were present at plot no. 48 A which was in fact his brother-in-law's plot and at that time construction was going on the said plot and they went to see the same. They saw one lady was sitting in front of H. No. 49 on a cot which was having one cloth bag. In the meantime, one person came and she sold the liquor to him. They went to her and asked her about the selling of liquor to which she disclosed that selling liquor was her profession. He stated that the said lady was not present in the court. They informed the police and police came to the spot and apprehended the old lady and got recovered the liquor of different labels. He deposed that he does not remember the exact quantity. IO separated the sample and kept the remaining liquor in the same plastic katta and duly sealed the same and IO recorded his statement as Ex. PW2/A and prepared seizure memo Ex.PW2/B.
6. In his cross examination by the Ld. APP he stated that he has studied up to 10th class and he knows Hindi very well. He admitted that IO recorded the same statement Ex.PW2/A as he had stated to the IO. He admitted that in his statement he stated that a 4 lady namely Shakuntala W/o Murari who was residing at Plot no. 49 was having one plastic katta in front of her house and the same was opened by him and Ram Kishore and they found liquor in it and police came at the spot and they handed over the accused Shakuntala and recovered liquor to the police which contained three bottles labelled with Tohfa Desi Masaledar, 35 half Chandni Desi Masaledar Sharab and 15 quarter bottles labelled with Tohfa Desi Masaledar Sharab and 62 pouches of Angoori Desi Masaledar Sharab were found in the same katta out of which one bottle was separated as sample from each and put the same in a plastic box and sealed with the seal of MSJ and filled form M-29. He stated that remaining liquor was kept in the same plastic katta and sealed with the seal of MSJ. He denied the suggestion that he has been won over by the accused and hence he was deposing falsely. He further denied the suggestion that he was changing his stand and deposing falsely by saying that recovery was affected from one old lady. This witness identified the case property as Ex. P-1 (colly.)
7. In his cross examination by the Ld. Defence counsel he admitted that accused was not found selling liquor on that day. He stated that police did not arrest the accused in his presence and he voluntarily stated that the police also took the lady standing in the court along with the old lady to the PS.
8. PW 3 Ram Kishore deposed that on 29.12.1999 he along with his friend Reet Prakah Bhushan were standing at Plot No. 48, 5 Rishal Garden, when they saw an old lady selling liquor in front of her house and one customer had purchased liquor from her. The police came to the spot and they handed over the liquor to the police and the police took the liquor to the PS. 9 This witness was cross examined by the Ld. APP. He admitted that he had not read Ex. PW2/B before signing it. He denied the suggestion that the liquor was recovered from the accused and not from some old lady and further denied the suggestion that he was deposing falsely to save the accused.
10 PW 4 HC Om Prakash deposed that on 29.12.1999 he was posted as MHCM at PS Nangloi and on that day IO HC Mahinder Singh handed over to him the case property sealed with the seal of MSJ and deposited the same in malkhana vide entry no. 3783 in register no. 19 as Ex. PW4/A. He further deposed that on 07.02.2000, on the instruction of IO, he handed over the sealed sample i.e. one sealed quarter bottle and form M-29 to HC Mahinder Singh vide RC No. 48/21/00 for depositing the same in excise office and after depositing the same IO handed over the receipt of the same to him and till the time the sample remained in his possession nobody tampered with it.
11 PW 5 Ct. Bhargav deposed that on 29.12.1999 he was posted at PS Nangloi and on that day in the evening on receipt of DD No. 22 he along with IO HC Mahender Singh went to the spot i.e. H. 6 No. 49, Risal Garden, Nangloi for inquiry where they met the complainant Reet Parkash along with Ram Kishore. They stated that there was a plastic katta containing liquor in possession of accused Shakuntala and they handed over the accused Shakuntala along with plastic katta to the IO. He opened the katta which was found containing three bottles of "Tohfa Desi Masaledar, 35 half bottles of Chandni and 15 quarter bottle of Tohfa Masaledar and 62 pouches of Angoori Desi Masaledar". He further stated that sample of each variety was taken and sealed with the seal of MSJ and remaining liquor was put back in the Katta and sealed with the seal of MSJ and seal after use was handed over to him and IO seized the case property vide Ex. PW2/B and he took the ruqqa to the PS and after getting the case registered came back to the spot and handed over the original ruqqa and copy of FIR to IO. This witness identified the accused as well as the liquor recovered from the accused.
12. This is all as far as prosecution evidence in the matter is concerned.
13. I have heard the arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
14 In my opinion the prosecution has failed to prove the charges against the accused beyond the shadow of doubts.
715 The complainant/recovery witnesses/public witnesses turned hostile and their deposition proved fatal to the prosecution story. Both the witnesses failed to identify the accused in the court and in their cross examination by Ld. APP they stated that the recovery was not affected from the accused but, was affected from one lady. Relevant portion of the cross examination as well as examination in chief are reproduced hereunder:-
PW2 (examination in chief): "We went to her and asked about the selling of liquor and she disclosed that she is in the profession of selling liquor. She is not present in the court".
PW2 (cross examination): "It is wrong to suggest that I have been won over by the accused and that is why I am saying that the recovery was affected from an old lady"
PW3 (cross examination) (After translation): It is wrong to suggest that liquor was recovered from the accused present in the court and not from an old lady or that I am deposing falsely to save the accused".
16 Therefore, their deposition proved to be a fatal blow to the prosecution case and their turning hostile shook the entire foundation of the prosecution story.
17 Apart from this the prosecution failed to examine the IO of the case who was a material witness more so when the public witness turned hostile. His absence has further failed to help the prosecution 8 case and nothing worthy is available on record to hold the accused guilty of the charges in the present case. (Sunder vs state NCT of Delhi 2002 (SC) Cri.L.J. 3563 and 2004 (2) Cri.C.C. 422). Neither the arrest of the accused person nor the excise result could be proved by the prosecution and in fact in the absence of IO the entire seizure and recovery as alleged by the prosecution stands doubtful in the overall facts and circumstances of the case. Mere heavy recovery is no ground to conclude that whatever has been stated by the police is a gospel truth. (1993 (2) R.C.R. (Criminal) 153) 18 Further there are numerous contradictions and inconsisten- cies in the prosecution case. Firstly, the liquor could not be preserved by the IO/SHO concerned (as is mandated under the Excise Act) dur- ing the pendency of trial and when the same was produced in the court bottles were found to be broken and empty. (Partap Singh v. State of Haryana, (P&H) 1997(4) R.C.R.(Criminal) 400 Punjab Police Rules, Rules 27.7 and 22.15 - Recovery of case property (Illicit liquor) - Under rule 22.15 it is responsibility of Officer-in-charge of Police Station to examine the property twice a month - Under Rule 27.17 it is his duty to maintain the property till final orders are passed - Recovery of illicit liquor - Leakage of liquor) 19 In this case the FIR number is mentioned on the recovery memo/seizure memo. Same is written in the same ink/pen/flow as the other particulars on the said documents. Admittedly this document was prepared before registration of F.I.R. In the case of MOHD.
9HASHIM VS. STATE 1999 (6) A.D. (DELHI) 569 it was observed that when documents are prepared before registration of F.I.R. and it con- tains the F.I.R. No. then inference has to be drawn that either F.I.R. 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. Fur- ther admittedly, SHO PS Nangloi did not visit the spot of recovery and the excise form was admittedly filled at the spot itself and sealed with the seal of MJS however, excise form 29 bears the signatures of SHO PS Nangloi. The same could not be explained by the prosecution.
'' In 1994 Drugs cases page 154'', titled as ''Ghanshyam V/s State'', Hon'ble Court of Delhi has held that:
''If Road Certificate (RC) vide which the the sample was taken to laboratory for examination is not produced in court, then that causes sufficient doubt to the prosecution story and it breaks the important link in the prosecution case''.
'' In 72(1999) DLT 435'', titled as ''Sunil V/s State'', Hon'ble High Court of Delhi regarding non proving of the excise result has held that:
''For want of proof of Analyst's Report, it cannot be presumed that what was recovered from the accused was liquor''.10
20 The cases where the possession of a very thing/article itself entails penal consequences, then the liability of prosecution becomes all the more onerous to prove the possession of that particular commodity/article by the accused through cogent documentation, which is not there.
21 Also in this case no efforts were made to hand over the seal after use to independent public persons and in such cases in view of SAIFULLA VS. STATE 1998 (1) CCC 497(DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused.
22. Even the departure and arrival of the police officials to the police station have not been proved by the prosecution to lend credence to the version of the prosecution.
23. Lastly I may reiterate the observations made in Raghbir Singh and another v. The State of Haryana, 1990(1) Chandigarh Law Reporter 695; State of Punjab v. Gurmej Singh, 1991(2) Recent Criminal Reports 361; State of Punjab v. Gurnam Singh, 11 1991(3) Recent Criminal Reports 4122 and Gurvel Singh v. The State of Punjab, 1992(1) Recent Criminal Reports 114 where it has been held that failure of the Investigating Officer to join independent witnesses of the locality in investigation sounds the death knell of the prosecution case set up against accused and the accused is entitled to secure an acquittal on this score.
24. In view of the above discussion, I am of the considered opinion that the prosecution has not been able to prove the charges against the accused person beyond the shadow of doubt. Accused Shankuntla is accordingly entitled for acquittal. I order accordingly. Surety bonds cancelled, sureties discharged. Endorsements, if any on the documents of surety be cancelled forthwith. No further orders are required to be passed in the matter.
25. File be consigned to Record Room as per rules and procedure.
Announced in the open (Gaurav Rao) Court on 18.01.2010. MM (W)/Delhi.