Delhi District Court
State vs . Kala Ram @ Kali Charan on 28 July, 2014
-: 1 :-
IN THE COURT OF SH. VIRENDER SINGH, METROPOLITAN
MAGISTRATE02,NORTH DISTRICT, DELHI
STATE VS. Kala Ram @ Kali Charan
FIR NO: 868/07
P. S. S.P. Badli
U/s 61/1/14 Excise Act
JUDGMENT
Sl. No. of the case : 113/2
Date of its institution : 23.12.2007
Name of the complainant : HC Dalbir Singh
Date of Commission of offence : 29.12.2007
Name of the accused : Kala Ram @ Kali Charan
S/o Sh. Kishan Singh
R/o Phatak No. 49, Jhuggi
MCD Colony, Samai Pur
Badli, Delhi.
Offence complained of : U/s 61/1/14 Excise Act
Plea of accused : Pleaded not guilty
Case reserved for orders : 16.07.2014
Date of judgment : 28.07.2014
Final Order : ACQUITTED
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the aforesaid accused upon the police report filed by P.S. Samai Pur Badli U/s 61/1/14 Excise FIR No. 868/07 STATE VS. Kala Ram @ Kali Charan -: 2 :- Act.
2. The brief facts of the case are that on 29.12.2007 at about 4.10p.m. at S.G.T. Nagar Parking, near GTK Road, Delhi within the jurisdiction of PS Samai Pur Badli accused was found in possession of three bags/bories containing 4 petties each and further each petty containing 12 bottles, totaling to 144 bottles of illicit liquor and which were recovered from the possession of accused without any permit or license and thereby the accused prima facie committed an offence punishable U/s 61/1/14 Excise Act.
3. After completing the formalities, the investigation was carried out by IO and a charge sheet was filed against the accused. After procuring the presence of accused the charge sheet alongwith documents was supplied to the accused and Charge against the accused was framed to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined three witnesses.
5. PW1 HC Attar Singh has proved the copy FIR as Ex.PW1/A and endorsement on the rukka Ex.PW1/B.
6. PW2 Ct. Manoj Kumar deposed that on 29.12.2007 he was on patrolling duty alongwith HC Dalbir in the area of PS S.P. Badli and while patrolling, they reached FIR No. 868/07 STATE VS. Kala Ram @ Kali Charan -: 3 :- near SGT Nagar Parking near GT Road where secret informer informed them at 4.00p.m. regarding illicit liquor in possession of one young man in three borries containing petties of sharab and if raided, same can be recovered. On this information, IO formed the raiding party and asked 34 public persons to join the investigation but none agreed. IO formed raiding party and they reached the spot at SGT Nagar Parking, near GTK Road where the accused was found sitting on three plastic kattas at about 4.10 pm. On interrogation the name of accused was found to be Kala Ram @ Kali Charan. IO checked the kattas and found that each katta containing 4 patties of illicit liquor and each petties contained 12 bottles of illicit liquor. Each bottle was having label of Jagadari no. 1 Masaledar Desi Sharab. In the meanwhile, Ct. Arun Kumar from Excise office Vikas Bhawan also came to the spot. He was also informed about recovery of illicit liquor and was joined in the investigation in this case. Ct. Arun Kumar was also having the similar information. IO took out one sample bottle from each patti. Remaining bottles in their respective patties were kept back in the bag and all the three bags were given in three lock and sealed with the seal of DS. Sample bottles were tied with the piece of cloth and given the seal of DS. IO filled form M 29 at the spot. The sample bottles and FIR No. 868/07 STATE VS. Kala Ram @ Kali Charan -: 4 :- bags were recovered vide recovery memo Ex.PW2/A. PW2 got registered the case. When he returned back to the spot after registration of the case, he found second IO at the spot. Second IO prepared site plan at the instance of first IO. He proved arrest memo of the accused as Ex.PW2/B and his personal search vide memo Ex.PW2/C. He also proved the case property as Ex.P1 to Ex.P3.
7. PW3 HC Mahender Singh has deposed that on 29.12.2007, the further investigation of this case was marked to him by SHO PS SP Badli. He alongwith Constable Manoj went to the spot at SGT Nagar Parking near GTK Road Delhi where he met HC Dalbir Singh who was present at the spot along with Constable Arun, and case property which were 3 kattas sealed with the seal of DS. First IO handed over to him all the documents prepared by first IO, case property and the accused. He prepared site plan Ex.PW3/A at the pointing of first IO. He arrested the accused Kala Ram @ Kali Charan vide arrest memo Ex.PW2/C and took his personal search vide memo Ex.PW2/D. He got the samples and Form M29 deposited in Excise office through Constable Pawan. After completion of investigation he filed the challan in the Court through SHO.
8. This is the overall prosecution's evidence in this case.
FIR No. 868/07 STATE VS. Kala Ram @ Kali Charan -: 5 :- No other witness was examined by prosecution.
9. After the prosecution's evidence was closed, accused was examined u/s 313 Cr.PC wherein all incriminating evidence were put to the accused which he denied and did not lead defense evidence.
10. It has been argued by Ld. APP for the State that the case of the prosecution has been proved beyond reasonable doubt by the testimony of the witnesses examined on behalf of prosecution and the only irresistible conclusion is the conviction of the accused.
11. On the other hand, it has been argued by counsel for accused that from the facts of the case, there is no public witnesses to the recovery and there are contradictions in the testimony of the witnesses. In view of aforesaid it is argued that the accused should be acquitted.
12. I have considered the rival contentions of both parties and gone through the judicial file.
13. The allegations against the accused are that on 29/12/2007 he was found in possession of illicit liquor without any license or permission. That this is the case of the prosecution that before raiding the accused they tried to join the public witnesses but they did not give any notice to them and none of them joined the investigation. That in this FIR No. 868/07 STATE VS. Kala Ram @ Kali Charan -: 6 :- respect Hon'ble apex court has repeatedly held that this stereotype answer of the police dose not entitled to be believed specifically in absence of any extra efforts done by police in this respect. That here even when admittedly there were many Dhabas and trucks then also the police officials could not join the independent witness. This fact cast a doubt on the story of the prosecution.
14. That this is also the case of the prosecution that after sealing the case property the seal was handed over to the Ct. Manoj by IO. But neither any seal handing over memo is there on record nor Ct. Manoj has deposed in his evidence on these lines. Thus tampering with the case property in these facts and circumstances can not be ruled out.
15. That when the case property was produced in the court it's seal was not legible. Thus this fact also could not be proved beyond reasonable doubt that the case property produced in the court was relating to this case only.
16. That the prosecution has not examined any person from Excise Control Laboratory, Excise department so that it could be proved that the substance recovered from the possession of accused was liquor. Thus prosecution also failed to prove the fact that the substance recovered from the possession of accused was liquor and nothing else.
FIR No. 868/07 STATE VS. Kala Ram @ Kali Charan -: 7 :-
17. That besides that there are material contradictions between the statements of prosecution witnesses. PW2 states that when he came back at the spot after registration of the FIR the second IO was there while PW3 i.e. second IO of the case deposed that he came there with Ct. Manoj i.e. PW2. PW2 further stated that the case property was fetched to the PS in a Rikshaw while PW3 deposed that the case property was fetched in a TATA 407. These are material contradictions which raises a doubt about the recovery of illicit liquor from the possession of accused.
18. Thus in aforementioned analysis of evidence and further discussion and considerations the prosecution is failed to prove its case against accused. Thus the accused Kala Ram @ Kali Charan is acquitted for offence under section 61 Punjab Excise Act.
Announced in the open court On this 28th July, 2014 Virender Singh Metropolitan Magistrate02, North Rohini Delhi FIR No. 868/07 STATE VS. Kala Ram @ Kali Charan