Delhi District Court
Shanker vs Govt Of Delhi ( Nct Of Delhi) on 29 April, 2013
1
IN THE COURT OF MS. SHAIL JAIN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02
(CENTRAL) DELHI
Crl. A NO. 82/12
Shanker
S/o Sh Shyam Dev
R/o Jhuggi No. 30, Relief Camp
Peeragarhi, Paschim Vihar,
Delhi.
........APPELLANT
versus
Govt of Delhi ( NCT of Delhi)
THROUGHG ITS SECRETARY
NEW DELHI
.......RESPONDENT
DATE OF INSTITUTION : 26.11. 2012
DATE OF JUDGMENT : 29.04. 2013
J U D G M E N T
1. The present criminal appeal u/s 374 Cr.P.C has been filed by the present appellant for setting aside the order dated 06.10.2012 vide which the Ld ACMM held guilty and also the impugned order of sentence dated 25.10.2012.
2. Brief facts leading to the present appeal are that on 31.07.1998 SI Rajesh Kumar along with HC Ramesh, Ct Rajbir and Ct Rohtash were on patrolling duty/vehicle checking in the Cr. A NO. 82/12 Page 1 of 8 pages Shanker vs The State 2 area of PS Roop Nagar. At about 1.45 p.m., at Nagia Park Picket near under the bridge Shakti Nagar, during the course of checking the vehicle, they noticed that one Fiat Car No HYM 7525 of White colour with black glasses was coming from the side of Shakti Nagar, Red Light. The said vehicle was stopped and from the said car, two persons namely Shanker and Om Parkash came out and tried to run away but were apprehended by the police. On being inquired, they failed to give any satisfactory reply. Thereafter the car was searched and from the rear seat and dickey of the car, 16 cartons were found lying. Each box was bearing mark "Associate Kedia Associated Alcohols and Beverages Ltd, Khodigram, Bawana and boxes were found containing Whisky bottles halves and quarters in quantities. On the basis of recovery, FIR no. 187/98 u/s 61 of Punjab Excise Act was registered against present appellant and his accomplice Sh Om Parkash. The appellant was held guilty vide order dated 06.10.2012 and order of sentence was passed vide order dated 25.10.2012.
3. Being aggrieved with the order of Ld Trial Court, appellant has filed the present appeal on the following grounds:
a) That the impugned order of Ld Trial Court is based on conjectures and surmises and against the facts mentioned in record;
Cr. A NO. 82/12 Page 2 of 8 pages Shanker vs The State 3
b) That Ld Trial Court has failed to consider that no statement of public witness was recorded by the police:
c) That Ld Trial Court has failed to consider the fact that the case property was produced by MHC (M) in unsealed condition;
d) That Ld Trial Court erred to convict the accused/appellant on the basis of incomplete, insufficient and irrelevant evidence.
with these grounds appellant has prayed for setting aside the impugned order.
4. I have heard Sh. Ratnesh Raj Murti, Ld. counsel for appellant, Ld. Addl. P.P. for the State/respondent and given due consideration to the grounds of appeal, impugned judgment and record of trial court.
5. It is argued on behalf of the appellant that appellant Shanker was not driving the vehicle in question but was sitting along with driver and when he was arrested by the police, no public witness was joined by the police and the car from which recovery had been effected by the police as per the case of the prosecution did not belong to the appellant and had been released on superdari to Sh Deepak who is neither accused nor witness in the case. All the witneses examined by the prosecution are police officials. It is argued by Ld counsel for appellant that from the record it is clear that when the case property was produced in the court during evidence, same was in unsealed condition, hence the Cr. A NO. 82/12 Page 3 of 8 pages Shanker vs The State 4 recovery is disputed therefore the order of Ld Trial Court should be set aside.
6. On the other hand Ld Addl. P.P had argued that case of the prosecution has been proved by the prosecution beyond reasonable doubt. It is settled preposition of law that testimony of police officials is as trust worthy as testimony of public witnesses. As regards the production of the case property in gunny bag instead of cartons (petis), it was argued on behalf of the State that it is the case of the year 1998 while the property was examined in the court for the first time in 2011, from 1998 to 2011 cartons made of gatta (cardboard) would have got damaged and hence the case property was produced in gunny bags.
7. I have considered the arguments advanced by Ld counsel for the parties, trial court record and the material available on record.
8. In the present appeal the order of Ld Trial Court had been assailed by the appellant on three grounds firstly:
a) that no public person has been joined in the case as a witness;
b) that superdar had not been examined as a witness or not made accused:
c) that the case property was produced in the court in Cr. A NO. 82/12 Page 4 of 8 pages Shanker vs The State 5 unsealed condition hence recovery is doubted therefore the order of Ld Trial Court should be set aisde. I will take up these points separately:
9. As regards the arguments of Ld counsel for appellant that no public witness has been joined, I agree with the argument of Ld Addl P.P that merely because the witness deposed in the present case are police officials , their testimonies will not have less credence than the testiony of public witness. All the five witnesses have deposed in favour of the prosecution and has specifically identified the accused/appellant to be the person who tried to fled away from the spot, after coming out of vehicle in which he was travelling. No suggestion was given to them about the identity of the accused, no question has been put to PWs on behalf of the accused that either the case is false or that the accused/appellant was not present at the spot. Hence much importance can not be given to the fact that public witnesses were not joined by the police.
10. As regards arguments of Ld counsel for accused that superdar had not been examined, I am of the opinion that it was not necessary that the superdar be made as accused or witness to the case because he was not present at the spot nor anything was recovered from him.
11. As regards arguments of Ld counsel for appellant that case Cr. A NO. 82/12 Page 5 of 8 pages Shanker vs The State 6 property produced in the court was produced in unsealed condition , I am of the opinion that this fact has been properly explained and discussed by Ld Trial Court while passing the order dated 06.10.2012. This objection was taken by Ld counsel for the accused even before Ld Trial Court and same has been rightly answered and decided by Ld Trial Court. Once the case property had been recovered from the accused, sample out of the case property recovered had been taken, sealed and examined by the concerned Lab and proved to contain ethyl alchohal, much importance can not be given to the case property being unsealed at the time of evidence. Further it is not the case of appellant that samples were not taken from the case property. The court is concerned about the presence of requisite material to prove the guilt of accused and since it has been established by the prosecution beyond reasonable doubt that samples which were taken from the recovered goods were properly sealed and sent to Excise Control Lab in sealed condition and were not tampered during this process, further the report of Excise Control Lab which is mark A had proved the presence of ethyl alchohal . Thus it proves that sample in question were of liquor. It is also the case of the prosecution that liquor was made for sale for Haryana. Admittedly this fact has not been controverted by the appellant neither before Ld Trial Cr. A NO. 82/12 Page 6 of 8 pages Shanker vs The State 7 Court nor in appeal.
12. In view of my above discussion, I am of the opinon that Ld Trial Court has rightly passed the order dt 06.10.2012 and further vide order dated 12.10.2012 appellant had been sentenced to imprisonment for three months along with fine of Rs.7,000/. Fine was deposited by appellant in Ld Trial Court.
13. Ld counsel for appellant had argued that this is first case in which the accused had been involved. No other case is pending against the accused. He is sole bread earner of the family. With these facts Ld counsel for appellant has prayed that leniency be shown in favour of the appellant who had already remained in judicial custody for 8 days.
14. Considering the fact that huge quantity of liquor was recovered from the possession of appellant and also the fact that appellant is sole bread earner of the family, he has to take care of his wife and four children and the fact that it is his first case, I am of the oplinion that one opportunity of reformation be given to appellant, therefore, sentence imposed by Ld Trial Court for three months imprisonment is hereby modified to two months simple imprisonment. Benefit of section 428 Cr.P.C be given to the appellant.
15. File of appeal be consigned to record room. Trial court Cr. A NO. 82/12 Page 7 of 8 pages Shanker vs The State 8 record be sent back with the copy of the order.
ANNOUNCED IN THE OPEN COURT ON 29th , APRIL, 2013.
( SHAIL JAIN )
ADDL. SESSIONS JUDGE (CENTRAL)
DELHI
Cr. A NO. 82/12 Page 8 of 8 pages
Shanker vs The State