Delhi District Court
Case Of "Sadhu Singh vs State Of Punjab" 1997(3) Crime 55 By The ... on 13 May, 2015
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Jagdish
FIR No. 212/2003
PS Paschim Vihar
U/s 61 Punjab Excise Act
JUDGMENT
C C No. : 365/2/10
Date of Institution : 24.09.2003
Date of Commission of Offence : 15.05.2003
Name of the complainant : Ct. Pradeep Kumar No. 1896/West
Paschim Vihar, Delhi
Name & address of the accused : Jagdish
S/o Shyam Lal
R/o E-226, Om Vihar, Phase-V
Uttam Nagar, Delhi
Offence complained of : U/s 61 Punjab Excise Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 16.04.2015
Date of announcing of judgment : 13.05.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case u/s 61 Punjab Excise Act.
2. The briefly stated story of the prosecution is that on 15.05.2003 at about 2.20 pm opposite Power House, Camp No.4, Jawala Puri, Rohtak Road, Delhi within State v. Jagdish U/s 61 Punjab Excise Act 1/9 FIR No. 212/2003 PS Paschim Vihar the jurisdiction of PS Paschim Vihar, the accused Jagdish was found in possession of nine cartons, each containing 48 quarter bottles of Bonnie Scott whisky without any permit or license, and thus he is alleged to have committed an offence under Section 61 Punjab Excise Act 1914. FIR was lodged on the basis of rukka. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Copy of charge-sheet and other relevant documents were supplied to the accused. Charge under Section 61 Punjab Excise Act was framed against him by the Ld. Predecessor vide order dated 17.11.2011 to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined only four witnesses i.e (1) HC Pradeep Kumar (2) HC Ved Pal (3) Ct. Virender Nehra (4) HC Phool Kumar.
5. HC Pradeep Kumar deposed that on 15.05.2003, he was posted at PP Mianwali PS Paschim Vihar. On that day he was on patrolling duty. At about 02:20 PM, when he was present at camp no.4, Jawalapuri, Powerhouse, he saw that one person was sitting there with having 3 heavy plastic bags. On seeing the witness, he hesitated. On suspicion, witness asked him about 3 plastic bags but he could not give satisfactory reply. The witness checked the said bags and found 3 petties of illicit liquor in each bag. Thereafter, he sent information to PP Mianwali from where IO ASI Mohd. Mustaq reached at the spot. In the meantime, Ct. Virender Nehra (Excise) had also come at the spot.
State v. Jagdish U/s 61 Punjab Excise Act 2/9 FIR No. 212/2003 PS Paschim Vihar IO recorded his statement which is Ex. PW-1/A. Thereafter, he handed over the accused and case property to the IO. IO asked 3/4 passersbyes to join the investigation but none agreed and left without disclosing their names and addresses. IO checked the petties which were found containing 48 quarter bottles each. One quarter bottle was taken out from each petty for sample purpose and remaining were kept back in the said petties. The sample bottle as well as the bags were sealed with the seal of MM separately. Form M-29 was filled up by the IO and sealed was handed over to Ct. Virender Nehra after use. The IO took the possession of case property vide seizure memo Ex.PW1/B. Thereafter, IO prepared a rukka and sent the witness to PS for registration of FIR. After registration of FIR, he returned back at the spot along with original rukka and carbon copy of FIR and handed over the same to the IO. IO prepared the site plan at his instance which is Ex.PW1/C. Thereafter, IO arrested the accused vide arrest memo which is Ex.PW1/D. The accused was released on bail at the spot. The case property was deposited in the malkhana. One white plastic katta without seal bearing mad number was produced by the MHC(M) and quarter bottles were taken out from the same. Case property is Ex.P1. It was observed by the court that most of the quarter bottles were empty or half filled.
6. During cross examination, he stated that he had left for patrolling at about 11.00 am. He did not remember whether he had made entry in the daily State v. Jagdish U/s 61 Punjab Excise Act 3/9 FIR No. 212/2003 PS Paschim Vihar register. He admitted that public persons were present at the spot. He admitted that he had not given any notice to the public persons who had refused to join the investigation. He remained at the spot till 5.30 pm. He denied the suggestion that the accused has been falsely implicated as he had refused to come to the police chowki when he was called 2-3 days prior to the date of incident. He denied the suggestion that the signatures of the accused were taken on blank papers. He denied the suggestion that all the documents were prepared at the police station.
7. PW-2 HC Ved Pal deposed that on 29.05.2003 he was posted as a constable at PP Mianwali Nagar. He received 9 sealed samples and Form M-29 from the MHC(M) PS Paschim Vihar vide RC No.82/21 on the instruction of the IO ASI Mohd. Mushtaq. He carried the samples to the Excise Office at ITO and deposited it there and also submitted copy of the RC regarding the same to the MHC(M) PS Paschim Vihar. He further deposed that no tampering of sample took place under his custody. During cross examination, he stated that he went to the Excise Office by TSR but he could not tell the registration number of the said TSR nor could he tell the fare paid by him for the purpose. He could not tell how much fare was paid by him to the said TSR.
8. PW-3 Ct. Virender Nehra deposed that on 15.05.2003 he was posted at Excise Office as constable. On that day, he was on patrolling duty. During patrolling at about 2.25 pm, he had reached at camp no.4 Jawalapuri where he met with Ct.
State v. Jagdish U/s 61 Punjab Excise Act 4/9 FIR No. 212/2003 PS Paschim Vihar Pradeep Kumar, who had apprehended one person. The said boy was apprehended along with three plastic kattas which were containing pettis of ilicit liquor. He further corroborated the testimony of PW-1. Case property i.e one katta was produced without seal by the MHC(M). Katta was opened and quarter bottles were taken out. It was observed by the court that most of the quarter bottles were empty or half filled.
9. During cross examination, he stated that they are not required to make any departure entry at the Excise office. He denied the suggestion that he was called by the police staff of police station with intention to implicate the accused in the false case. He denied the suggestion that the accused was not apprehended from the spot or that all the documents were prepared while sitting at the police station.
10. PW-4 HC Phool Kumar deposed that on 15.05.2003 ASI Mohd. Mushtaq had deposited the case property i.e three bags and nine samples sealed with the seal of MM. On 29.05.2003 he had sent nine sample to the Excise office for examination through Ct. Ved Pal vide RC No.82/21/03. On 29.07.2003 excise result was received by him and he handed over the same to the IO. Relevant entry no. 3273 is Ex.PW4/A.
11. Thereafter, the prosecution evidence was closed. Statement of accused was recorded u/s 281 Cr.P.C, wherein he denied all the allegations and pleaded innocence. No defence evidence was led despite opportunity.
State v. Jagdish U/s 61 Punjab Excise Act 5/9 FIR No. 212/2003 PS Paschim Vihar
12. I have heard the submissions addressed by the Ld APP for state and by the Ld. Counsel for accused and carefully perused the documents on record.
13. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. It has been held in case of "Sadhu Singh V/s State of Punjab" 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
14. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-
'22.49. Matters to be entered in Register No. II :- The following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, State v. Jagdish U/s 61 Punjab Excise Act 6/9 FIR No. 212/2003 PS Paschim Vihar whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
15. In the present case, the above said provision appears to have not been complied with by the prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal V/s State", 1987 (2) Crimes 29 wherein it was held by the Hon'ble High Court of Delhi, "If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
16. Also, no Public person has been made as a witness in the present case.
Admittedly, the spot was a public area and public persons were present at the spot. However, no sincere efforts was made by the IO to persuade them to join the investigation. No notice was served upon the said witnesses.
State v. Jagdish U/s 61 Punjab Excise Act 7/9 FIR No. 212/2003 PS Paschim Vihar
17. It has been held in "Roop Chand V/s The State of Haryana",1999 (1) C.L.R 69, by the Hon'ble Punjab & Haryana High Court that:-
"It is well settled principle of the 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 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 he witnesses from the public had refused to 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 non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
18. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of 'MM' and was handed over State v. Jagdish U/s 61 Punjab Excise Act 8/9 FIR No. 212/2003 PS Paschim Vihar to Ct. Virender Nehra after use. Also, the seal was neither handed over to independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering with case property can't be ruled out.
19. Furthermore, it was observed by the court during the examination in chief of HC Pradeep Kumar and Ct. Virender Nehra that the case property i.e one white plastic katta was produced without seal and most of the quarter bottles were also empty and half filled. This further puts question mark on the prosecution story and raises doubts of tampering with case property.
20. Hence, in view of the above, story of the prosecution becomes doubtful and the benefit of doubt certainly goes in favour of the accused. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused Jagdish is acquitted for the charges punishable U/s 61 Punjab Excise Act levelled against her.
21. As per section 437A Cr.P.C accused is admitted to bail on his furnishing personal bond in the sum of Rs.10,000/- with one surety of like amount. ANNOUNCED ON 13.05.2015 (SAUMYA CHAUHAN) MM-07(West)/ Tis Hazari Court /13.05.2015.
State v. Jagdish U/s 61 Punjab Excise Act 9/9
FIR No. 212/2003 PS Paschim Vihar