Delhi District Court
State vs . Rahim Ansari on 18 December, 2012
State vs. Rahim Ansari
IN THE COURT OF SH AJAY GARG
Metropolitan Magistrate-03, South, New Delhi
State Vs. Rahim Ansari
FIR N0. : 606/05
U/S : 61/1/14 Ex. Act
PS : Vasant Kunj
JUDGM ENT ;
a) Sl. No. of the case : 53/5
b) Date of commission of offence : 27.10.2005
c) Date of institution of the case : 25.05.2006
d) Name of the complainant : Ct. Inderjeet Singh
e) Name & address of the :Rahim Ansari s/o
accused Sh. Hamid Ansari
R/o Jhuggi no. A-318
Kusumpur Pahari, Vasant Kunj
New Delhi
f) Offence complained off : 61 Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 18.12.2012
i) Final order : Acquitted
j) Date of Judgment : 18.12.2012
FIR No. 606/05 Page 1 of 7
State vs. Rahim Ansari
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Briefly stated, accused Rahim Ansari has been sent to face trial for offence U/s 61/1/14 of Excise Act with the allegations that on 27.10.2005 at 08:50 p.m, opposite Chinmay School, Vasant Kunj, New Delhi within the jurisdiction of PS Vasant Kunj accused was found in possession of a white color plastic cane containing 24 bottles of illicit liquor without any requisite license and in contravention to notification issued by Delhi Government. 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 61/1/14 Excise Act was framed against the accused on 20.04.2009 to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, five witnesses have been examined on behalf of the prosecution.
4. PW1; HC Ram Kishore is the Duty Officer who has registered FIR Ex.
PW1/A on the basis of rukka sent by HC Vijender. He also identified endorsement on rukka Ex. PW1/B.
5. PW2; HC Satyawan is a police official who, on directions of IO, collected sample and Form M-29 from MHCM and deposited the same for chemical examination.
6. PW3; Ct. Inderjeet is the complainant who apprehended the accused with illicit liquor. He deposed that IO carried out all the proceedings in his presence.
FIR No. 606/05 Page 2 of 7State vs. Rahim Ansari He identified seizure memo Ex. PW2/A, his statement Ex. PW2/B, arrest memo Ex. PW2/C, personal search memo Ex. PW2/D and duly identified the case property Ex. P-1.
7. PW4; HC Subhash Chand is the MHC(M) who sent the sample property through Ct. Satyawan for deposition in Excise Lab.
8. PW5; ASI Vijender Kumar is the IO of the instant case. He deposed that upon receipt of DD no. 74-B he visited the spot where Ct. Inderjeet handed over him the case property i.e. a plastic cane containing illicit liquor and accused. He carried out investigation in the instant matter. He identified rukka Ex. PW5/A, Site plan Ex. PW5/B. He arrested the accused, conducted his personal search, seized the case property and recorded statement of witnesses.
9. Upon completion of P.E., statement of accused U/s 313 Cr.P.C. was recorded on 17.11.2012, wherein he has refuted the allegations levelled against him in toto. Accused chose not to lead any defence evidence in his favour.
10. I have heard the rival submissions and carefully perused the record.
11. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. 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."
12. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference:- Chapter 22 Rule 49 of Punjab Police Rules, 1934, FIR No. 606/05 Page 3 of 7 State vs. Rahim Ansari provides as under:-
: 4:''22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
(c) 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 police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
13. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
FIR No. 606/05 Page 4 of 714. In the instant case, when case property was produced before Court and the seal on the lid of the case property was found be broken and letter was not visible. 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, conviction of the accused cannot be sustained upon the testimony of police officials uncorroborated by any independent/ public witnesses.
15. In the instant case no public person was cited as a witness on behalf of prosecution. As per prosecution story the spot was a public place. Even IO ASI Vijender Kumar (PW5) had admitted in his cross-examination that he requested that few public persons to join the investigation but did not serve any written notice upon them. It is note worthy that despite availability of public persons I.O.s had not made any serious endeavour to join the public persons in investigation of this case. This failure on their part goes to suggest that they did not make sincere efforts to join the passers-by in the police proceedings. Also as per rukka IO did not serve written notice to the passersby who refused to join the police proceedings. At least in the facts and circumstances of the present case, IO could have very well served the passers-by with notice in writing requiring them to join the police proceedings or to face action u/s 187 IPC in as much as in the present case there was no possibility of accused escaping his apprehension / arrest or crime going undetected in as much as by the said time, accused stood already apprehended by the police. Failure on the part of prosecution to make sincere efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws.
In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such FIR No. 606/05 Page 5 of 7 State vs. Rahim Ansari 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 rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''. Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: ' It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband 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 he witnesses from the public had refused to to join the investigation, the Investigating FIR No. 606/05 Page 6 of 7 State vs. Rahim Ansari Officer must have proceeded against them under the relevant 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 make the prosecution case highly doubtful''.
16. Furthermore, in the case at hand, seal after use on the case property and sample bottles was given to Ct. Inderjeet who also happens to be the complainant in the present case. To my mind, in such circumstances, chances of fabrication with the case property cannot be ruled out, in as much as, complainant is invariably interested in the conviction of the accused.
17. In view of the aforesaid discussion, I am of the opinion that prosecution has failed to prove its case against the accused beyond all reasonable doubts. Accused accordingly stands acquitted for the offence U/s 61/1/14 Excise Act.
Announced in the open court
on 18.12.2012 (Ajay Garg)
MM-03/South/ND/ 18.12.2012
FIR No. 606/05 Page 7 of 7