Delhi District Court
State vs . Dropati on 17 July, 2014
IN THE COURT OF SHRI DEEPAK DABAS
ADDL. CHIEF METROPOLITAN MAGISTRATE, WEST
TIS HAZARI COURTS, DELHI
FIR No. 71/2007
ID 02401R1017102007
U/S. 61 of Punjab Excise Act
PS Anand Parbat
State Vs. Dropati
JUDGMENT
1. Sr. No of case 128/AP/13
2. Date of commission of offence 14.3.2007
3. Name of complainant Ct. Rattan Lal
4. Name of accused Dropati
w/o. Sh. Vinod Kumar
r/o. H No. 52/36
Gali No. 16, Nai Basti
Anand Parbat, Delhi.
5. Offence complained of U/S. 61 of Punjab Excise Act
6. Plea of accused Pleaded not guilty
7. Final order Acquitted
8. Date of such order 17.7.2014
1). FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION :
State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 1/
Accused has been sent for trial on the allegations that on 14.3.2007 at about 12 Noon at Gadodia Road near Ambedkar Park, Anand Parbat, Delhi she was found in possession of a bag containing 25 quarter bottles of illicit liquor without any permit or licence.
2).
MISCELLANEOUS PROCEEDINGS : After completion of the investigation, chargesheet was filed by the police against accused. Cognizance of the offence was taken and the accused was summoned. Copy of the chargesheet was supplied to the accused and the matter was adjourned for arguments on charge.
3).
CHARGE / NOTICE FRAMED AGAINST THE ACCUSED : In the present case, inadvertently no charge was framed against the accused and the matter was listed for prosecution evidence vide order dated 11.1.2010 by my Ld Predecessor. At this stage, the question which requires consideration is as to what is the effect of non framing of charge?
Answer to the said question can be found in section 464 cr.p.c. Section 464 cr.p.c. postulates that no finding, sentence or order by a court of competent jurisdiction shallbe deemed invalid merely on the State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 2/ ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has infact been occasioned thereby. Reference can also be made to section 215.
Section 215 cr.p.c. postulates that "No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. In the present case, no prejudice was caused to the accused due to non framing of charge.
4).
EVIDENCE LED BY THE PROSECUTION : In order to prove its case, prosecution has examined 5 witnesses. The testimony of the said witnesses in brief is as under :
(a) PW1 i.e. Ct. Rattan Lal was the complainant. He deposed that on 14.3.2007 he was posted in police station Anand Parbat and was on patrolling duty in the area. He further stated that at about 12 Noon State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 3/ when he reached at Ambedkar Park, Gadodia Road he noticed a lady coming from side of Ambedkar Park with a plastic bag in her hand. He further stated that on suspicion he stopped said lady and on checking the bag it was found containing quarter bottles of liquor and he informed the police station. He further stated that IO HC Avdesh Kumar came to the spot and he handed over custody of accused and case property to the IO. He further stated that IO counted the bottles and it was found to be 25 quarter bottles in all of Bonny Scot Whisky for sale in Haryana only. He further stated that IO recorded his statement Ex. PW1/A and then IO got the case registered through him. He further stated that the case property was taken into possession vide seizure memo Ex. PW1/B and then accused was arrested. He further stated that accused was released on bail and case property was deposited in the malkhana. He identified the accused as well as case property in the court. It is pertinent to mention that when the case property was produced in the court the seal on the katta was not legible. It is pertinent to mention that said katta contained 24 quarter bottles, out of which 4 were empty; one was broken and remaining 19 were filled.
State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 4/
(b) PW2 i.e. HC Mahender Singh was the duty officer. He deposed that on 14.3.2007, he had registered the FIR i.e. Ex. PW2/A.
(c) PW3 i.e. ASI Rajender Singh was the sample carrier. He deposed that on 21.3.2007, he had deposited one sample quarter bottle sealed with seal of AK in the excise lab and thereafter handed over the receipt to the MHCm.
(d) PW4 i.e. ASI Krishan Chander was the MHCm. He deposed that on 14.3.2007, HC Avdesh Kumar had deposited one plastic bag, sample quarter bottle alongwith Form M29 in the malkhana and entry to this effect was made by him. He further stated that on 21.3.2007, the sample was sent through HC Rajender to the excise lab.
(e) PW5 i.e. ASI Avdesh Kumar was the investigating officer. He deposed that on 14.3.2007, on receipt of DD NO 22A, he reached the spot where PW1 produced the accused alongwith case property to him. PW5 deposed in detail about the investigation carried out by him in this case. PW5 also proved the documents prepared by him during the investigation of this case. PW5 was also cross examined at length by Ld defence counsel.
State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 5/
5).
STATEMENT OF ACCUSED : Statement of accused was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to the accused. In the said statement under Section 313 Cr.P.C, accused has stated that she was falsely implicated in this case and nothing was recovered from her possession. Accused had not led any evidence in her defence.
6).
ARGUMENTS OF LD. APP FOR STATE AND LD. DEFENCE COUNSEL Ld APP for the State had argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the State had also argued that the factum of recovery of aforesaid liquor from the accused has been proved beyond reasonable doubt by the testimony of PWs and therefore, accused is liable to be convicted in this case.
On the other hand, Ld defence counsel had argued that there are contradictions in the testimony of witnesses. Ld defence counsel had also argued that no independent/ public witness was joined in the investigation of this case and the factum of recovery is doubtful. Ld defence counsel had also argued that the prosecution has State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 6/ miserably failed to prove its case against the accused and therefore, the accused is entitled of being acquitted in this case.
7).
REASONS FOR THE DECISION :
(a) During examination of PW1, when the katta was produced in the court, the seal on the katta was not legible. It is also pertinent to mention that the said katta contained 24 quarter bottles out of which 4 were empty; one was broken and remaining bottles were filled. The aforesaid lacuna casts a doubt upon the prosecution version.
(b) The place from where the accused was apprehended was a very busy place/ residential area but inspite of it, IO of the case failed to join public witnesses in the investigation of the case. The time of apprehension of the accused was 12 Noon. It is matter of record that no effort was made by the IO to join the public persons in the investigation of the present case. In this regard reference can be made to a case titled as Anoop Joshi vs. State reported as 1992(2) Crimes 550 wherein the Hon'ble High Court of Delhi observed as under : "18. It is repeatedly laid down by this court in such cases it should be shown by police that State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 7/ sincere efforts have been made to join independent witnesses. In the present case, it is in evidence that no such 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 rigors of laws while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
Reference can also be made to a case titled as Roop Chand vs. State of Haryana reported as 1989(2)R.C.R.(Criminal
504) wherein the Hon'ble Punjab & Haryana High Court has held as under:
"3. I have heard the Ld. Counsel for State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 8/ the parties and have gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during Noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner."
In the aforesaid case it was further observed that:
"4. It is well settled principal of 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 State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 9/ 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 the witnesses from the public had refused to join the investigation, the investigating 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 State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 10/ facts taken together makes the prosecution case highly doubtful".
(c) It is also pertinent to mention that the prosecution has failed to produce any documentary evidence or the DD regarding departure of PW1 from the police station. This fact also creates a doubt in the prosecution version.
(d) It is also pertinent to mention that as per prosecution version, seal after use was handed over by PW5 to PW1. Both of them are police officials. Seal was not handed over to any independent witness. In such a situation the possibility of tampering with the case property cannot be ruled out. The said suspicion is further strengthened by the fact that during the examination of PW1 when the case property was produced in the court the same was not complete.
(e) As per testimony of PW1 and PW5 the seizure memo of the liquor is Ex. PW1/B which was prepared prior to the registration of the present case. However, a perusal of Ex. PW1/B shows that the FIR Number as well as other particulars of the present case are mentioned on it. No explanation has come from the prosecution as to how the FIR Number State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 11/ as well as other particulars of the present case surfaced upon said document which was prepared prior to the registration of the present case. This fact also casts a doubt upon the prosecution version.
8).
CONCLUSION : Keeping in view the facts and circumstances and the discussion made hereinabove, I am of considered view that prosecution has failed to prove its case against accused beyond reasonable doubt. Hence, accused is hereby acquitted in present case.
Judgment dictated and DEEPAK DABAS pronounced in the open Court ACMM:WEST DISTT:DELHI. (This judgment consists of 12 pages) State Vs. Dropati; FIR No 71/2007; PS Anand Parbat 12/