Delhi District Court
State vs . Shankar on 1 August, 2008
1
IN THE COURT OF SH. AJAY GOEL
METROPOLITAN MAGISTRATE: DELHI
State Vs. Shankar
FIR NO.: 635/05
U/S : 61/1/14 Excise Act
P.S. : Sangam Vihar
Date of Arguments: 01.08.08
Date of decision: 01.08.08
Date of receiving the file: 19.3.08
J U D G E M E N T
A. Case No. : 376/3
B. Date of Commission of offence : 16/7/05
C. Name & Address of accused : Shankar
S/o Sh Dhohna
R/o H No. 118, Gali No. 8/3 G block Sangam Vihar New Delhi D. Name & address of complainant : Const. Ugrasen No. 1577/SD PPH, Block Sangam vihar, N Delhi.
E. Offence complained of : U/s 61/1/14 Excise Act F. Plea of the accused : Pleaded not guilty G. Final order : Acquitted H. Date of such order : 01.08.08 2 BRIEF FACTS OF THE CASE:
Briefly, the allegations against the above named accused is that on 8:50 p.m. on 16/7/2005 at G block Gali 8/3 H.No. 118, Sangam Vihar New Delhi within the jurisdiction of PS Sangam Vihar he was found in possession of 4 patties containing 48 quarter each total 192 quarters of illicit liquor without licence or permit in contravention of notification of Delhi Admn. Delhi. A case was got registered and investigation was carried out. During investigation site plan was prepared, statement of witnesses were recorded, accused was arrested and on completion of investigation, a report u/s 173 Cr. P. C was submitted to the court, for trial of the accused.
2 After complying with the provisions of section 207 Cr. P.C the accused was charged u/s 61/1/14 Excise Act, to which he pleaded not guilty and claimed trial on explanation.
3 To prove its case prosecution has examined two witnesses in this case.
4 PW1 is Ct. Ugarsen. He has deposed before court that on 16/7/05 he was on petrolling duty. On secret information accused was apprehended with carton boxes. He caught him and informed to P.P. and HC Om Prakash came to the spot to whom he handed over the accused and 4 patties of Director Spl. whiskey containing 48 quarter bottles of each. His statement was recorded ExPW1/A. IO filled up form M-29 vide ExPW1/B and sealed the case property 3 with the seal of OP vide seizure memo ExPW1/C and seal after use was handed over to him. IO prepared rukka and handed over to him and he got registered the case. IO prepared site plan ExPW1/D. The accused was arrested vide personal search and arrest memo ExPW1/E and F. PW2 HC Kishan Singh. He has registered FIR ExPW2/A on the basis of rukka brought by Ct. Ugresen sent by HC Om Prakash and made the endorsement on the original rukka ExPW2/B. 5 The accused was examined u/s 281 Cr.P.C. in which he denied all the incriminating evidence and submitted that he has been falsely implicated in the case, however, he did not opt to lead any evidence in his defence . 6 I have heard ld. APP for the state and counsel for accused, perused the record carefully and have given thoughtful consideration to the rival contentions.
7 Prosecution case has remained vulnerable to doubt due to the following reasons:
a. No independent witness has been joined in the raiding party though easily available and the recovery was affected at a public place.
"Reference can be made to AIR, 1995 S. C, 1998 Daulat Ram Vs. State of Haryana and 1997 Cr. L. J 2978, Sahib Singh Vs. State of Punjab and 1999 Cr. L. J 19 Sompal Vs. State of Delhi , as it has been held that when no attempt was made by police officer to join with him some independent person 4 who could be easily available then it can effect the weight of evidence of the police officer."
b. No personal search was offered by the constable before taking the search of the accused.
c. The prosecution failed to rule out that the misuse of seal has not taken place. It has been held in 1997 JCC 520 Karambir Vs. State of Delhi, "
that if IO does not say or it is not proved that specimen impression of the seal was deposited with MHC(M) alongwith the case property, it will result miscarriage of justice and fatal to the prosecution."
d. The seizure memo, Ex. PW1/C, bears the FIR number, in the same ink and hand, as the remaining document although the same was prepared prior to registration of FIR. It has not been explained as to how the said document has come to bear the FIR number Thus, a doubt is created, regarding the sequence and manner in which the investigation has taken place. e. The case property when produced before court the bag was unsealed and out of 188 quarter bottles 24 quarter bottles were empty which casts shadow of doubt on the case of the prosecution. 7 In view of the above discussion, it is held that prosecution has failed to prove its case against the accused, beyond a reasonable doubt. Thus, the accused is held not guilty of the charges levelled against him and he is acquitted accordingly. His bail bonds are discharged. Endorsement if any be cancelled. 5 Case property be confiscated to state after the period of appeal/revision. File be consigned to record-room.
Announced in the open court.
On dated: 01.08.08 (Ajay Goel) METROPOLITAN MAGISTRATE:DELHI 01.08.08