Delhi District Court
State vs . Parkash on 3 March, 2012
: 1 :
IN THE COURT OF AMIT ARORA, METROPOLITAN MAGISTRATE, NORTH - 04,
TIS HAZARI COURTS, DELHI
State vs. Parkash
FIR No. 19/04
U/s 61 Punjab Excise Act
P.S : Gulabi bagh
1. Sl. No. of the Case : R 0344512006
2. Date of Commission of Offence : 15.01.2004
3. Date of institution of the case : 19.02.2004
4.Name of the complainant : HC Kamal Singh
5. Name of accused, parentage
& address : Prakash S/o Sh Hiramal R/o Gali no. 1
Sindhi Chuna Mandi, Sarai Rohilla, Delhi
& permanent address R/o Village Hilali,
PS Maharajganj, PO Harsukhrai, Distt
Jaunpur, U.P.
6. Offence complained or proved : U/s 61 Excise Act.
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Acquitted.
9. Date of Final Order : 03.03.2012
JUDGMENT
1. Accused Prakash S/o Hiramam has been sent to face trial for offence under Section 61 Punjab Excise Act, with the allegations that on 15.01.2004 at 3.40pm at Choudhary Nand Lal Marg in front of mother dairy booth, Pratap Nagar, he was found in possession of two katta containing 50 and 68 quarter bottles respectively of country made liquor, without any permit or license, and thus committed an offence under section Section 61 of Punjab Excise Act. After usual investigation ,challan was filed.
2. The cognizance was taken for the offence in question and the accused was FIR NO: 19/04 P.No. 1 Of 5 : 2 : summoned to face trial. The copies of the challan and the supporting document were supplied to him. As a prima facie offence was made out against the accused, he was charged for offence under Section 61 Punjab Excise Act, to which he pleaded "Not Guilty"
& claimed trial.
3. In order to substantiate the charge, prosecution had examined 5 witnesses. Upon the completion of prosecution evidence statement of the accused was recorded under section 313/281 CrPC, wherein the accused took the plea of false implication and preferred not to lead any defence evidence.
4. A brief discussion of the evidence of the prosecution necessary for the disposal of the case is as follows: PW2 is Ct Ranbir Singh who was the recovery witness and was accompanying the investigating officer HC Kamal Singh. He had deposed that he was on patrolling along with HC Kamal Singh and at about 3.30 pm one secret informer informed the IO , that a person would come from the side of Sanjay Nagar and would come on Choudhary Nand Lal Marg and he will be carrying illicit liquor on his Thela rickshaw. A raiding party was formed consisting of PW2, and HC Kamal Singh. The accused was apprehended on the pointing out by secret informer and was found carrying two plastic katta. On enquiry the person who was plying the rickshaw told his name as Prakash and on checking the kattas, same were found having illicit liquor. In one plastic katta , there were 50 quarter bottles and in the second plastic katta there were 68 quarter bottles. One bottle was separated as a sample from each katta and the remaining bottles were kept in the same plastic kattas and were sealed with seal of KSM. The sample bottles were also sealed with the same seal. Thereafter the rickshaw was seized vide seizure memo EX. PW2/A. A rukka was prepared which was given to him for registration of FIR and he returned back at the spot alongwith SI Shyam Sunder. He proved the arrest memo of accused as Ex. PW2/B, persoanl sezarch memo as Ex. PW 2/C. He identified the case FIR NO: 19/04 P.No. 2 Of 5 : 3 : property before the court . In his cross examination he has admitted that there was residential areas and mother dairy booth nearby .
5. PW4 is ASI Umed pal who is a formal witness as duty officer and had proved the FIR as PW4/A. PW 3 is ASI Rajbir who has deposed that on 27.01.04 he took the sample bottles vide RC no 51/21 to Excise lab and after depositing he handed over the RC to MHCM.
6. PW1 is MHCM who deposed that on 15.04.2001 IO deposited with him two kattas , two sample bottles , form Excise and one rickshaw and he made an entry in register no 19. He further deposed that on 27.01.2004, he handed two bottles to HC Rajbir vide RC no 5/21 alongwith Form M29 and later on HC Rajbir Singh handed him the RC . The RC was proved as Ex. PW1/A , the enteries in the register no 19 was proved as Ex. PW1/B .
7. Last witness is HC Kamal Singh who has deposed as per prosecution case. The rukka was proved as Ex. PW5/A. He deposed that after the preparation of rukka Ct Rajbir had gone to PS and had returned after registeration of FIR with SI Shyam Sunder. He proved the seizure memo as Ex. PW2/A . However the second IO Shyamsunder could not be examined as he expired during the trial of this case.
8. I have heard the learned APP for the state and the learned defence Counsel and have carefully perused the case file. The evidence led by the prosecution suffers from various infirmities.
9. The first most ground which raises a shadow of doubt on the prosecution version is the fact that the IO never joined any public witness to prove the recovery of liquor though there was information beforehand available with HC Kamal Singh. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses. PW2 and PW5 had admitted in their FIR NO: 19/04 P.No. 3 Of 5 : 4 : cross examination that no public person was joined. No explanation has been offered by any witness as to why no witness from the public was joined. Although the non joining of public person is not itself fatal to the prosecution case in every case. But in the present case coupled with other weakness this fact assumes importance. In the case of Massa Singh Vs. State of Punjab 2000 (2)C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under:" The recovery has been effected from a public place.The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
10. There is an other important missing link in the prosecution version. The seal was never given to any independent witness and was given to (PW2) who is himself a material witness and was always interested in the success of this case and he had admitted that the seal was returned by him before the sample were send to excise lab. Thus the possibilty of tampering with the samples cannot be ruled out In the case of Datu Ram Vs. State 1996 1 AD (Delhi) 52, it has been held that all the links starting from the seizure of sample till the same reaches the hands of public analyst must be proved to conclude that the seals remained intact. In the case of Dhanpat Vs. State of Punjab 2000 (1) CC Cases HC 52, it has been held that in the absence of any link evidence that the property was deposited in the malkhana intact, accused is entitled to benefit of doubt.
11. There is also serious contradiction in the version of the police official. PW2 had stated that the seizure memo has prepared first and thereafter the rukka was prepared by the IO. On the other hand , HC Kamal Singh has deposed that he has FIR NO: 19/04 P.No. 4 Of 5 : 5 : prepared this rukka first and after the registration of the FIR and the arrival of second IO, he had prepared a seizure memo . A question arises as to when SI Shyamsunder was already assigned the investigation of this case then why the first IO proceeded with preparation of the seizure memo , when the investigation were already assigned to the second IO.
12. The IO has not investigated about the source of liquor and from where the accused managed to have so many quarter bottles with him. There is no disclosure prepared by the IO w.r.t source of liquor and the failure to investigate this aspect does not rules out the possibility of plantation upon the accused. Had the source of liquor was investigated by the IO it would have placed the case of prosecution on a much higher footing.
13. In view of the aforesaid discussion, I have no hesitation in holding that the accused is entitled to benefit of doubt & is hereby acquitted of the charge framed against him. The B/B & S/B of the accused are discharged. The original documents of the surety, if any on record, be released to the surety after cancellation of the endorsements thereupon as and when so applied. Case property be destroyed as per rules. File be consigned to record room.
Announced in the open court On 03rd March, 2012 (AMIT ARORA) M.M. (NORTH - 04) DELHI FIR NO: 19/04 P.No. 5 Of 5 : 6 : State vs. Parkash FIR No. 19/04 U/s 61 Punjab Excise Act P.S : Gulabi bagh 03.03.2012 Present: APP for the state Accused on bail Vide separate judgment of even date, accused is acquitted of the charge framed against him. Her bail bond/surety bonds are extended for six month in view of section 437(a) Cr.P.C.
File be consigned to Record Room.
Amit Arora MM04/North/03.03.2012 FIR NO: 19/04 P.No. 6 Of 5