Delhi District Court
State vs . Rajesh Kumar on 27 August, 2009
FIR No. 206/01
P.S.: Chandni Mahal
U/s: 61 Excise Act.
IN THE COURT OF SH. SIDHARTH MATHUR, METROPOLITAN
MAGISTRATE, CENTRAL - 02, TIS HAZARI COURTS, DELHI
State Vs. Rajesh Kumar
FIR No.: 206/01
P.S.: Chandni Mahal
U/S: 61 Excise Act.
JUDGMENT
1. S. No. of the Case : 272/03/04 2. Date of Commission of Offence : 30.10.2001 3. Date of institution of the case : 02.02.2002 4. Name of the complainant : H.C. Baljit Singh
5. Name of accused, parentage & address. : Rajesh Kumar S/o Sh. Lallan Singh R/o RZ/C260, Nihal Vihar, Nangloi, Delhi.
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 : 27.08.2009 JUDGMENT
1. Accused Rajesh Kumar S/o Sh. Lallan Singh has been sent up to face trial for offence under Section 61 Excise Act with the allegations that on 30.10.2001 at about 10.15 p.m. at the corner of Ganj Mir Khan, Faizal Road, 27.08.2009 Page 1 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
Delhi within the jurisdiction of P.S. Chandni Mahal, the accused was found in possession of 15 ltrs. of country made liquor which was equivalent to 20 bottles of 750 ml. in contravention of the notification issued under Punjab Excise Act as applicable to Delhi without any permit or license and as such had allegedly committed the aforesaid offence. After usual investigation, the charge sheet was filed in the court on 02.02.2002 and provisions of Section 207 Cr. P.C were completed on 16.05.2002.
2. Vide order dated 11.07.2005, the accused was charged for offence under Section 61 Excise Act, to which the accused pleaded "Not Guilty" & claimed trial.
3. In order to substantiate the charge, prosecution had examined 6 witnesses.
PW-5 H.C. Baljit Singh, Belt No. 910/D had testified that on 30.10.2001, he was posted at P.S. Chandni Mahal and when he was on patrolling duty with Constable Jeet Singh (PW4) & Constable Ravinder, then after they reached Ganj Mir Khan, Faizal Road, then one of their secret informer informed him that one person, namely, the accused will come from Darya Ganj side and would go to Turkman Gate via Faizal Road, who might be having illicit liquor in his possession, where after PW5 asked 45 public persons to join the raiding party but all of them refused for one reason or the 27.08.2009 Page 2 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
other & left the spot without disclosing their names & addresses. After that, the raiding party comprising of PW5, PW4 & Constable Ravinder along with secret informer formed a nakabandi at the corner of Ganj Mir Khan, Faizal Road and the raiding party noticed at 10.15 p.m. that the accused was coming from Darya Ganj side with a plastic gunny bag in his hand & on the pointing of the secret informer, the accused was apprehended from that place. PW5, thereafter checked the plastic gunny bag wherefrom one plastic cane was recovered from which the smell of liquor was coming out. PW5, thereafter arranged one bucket & bottle for measuring the liquor, which was found to be 20 bottles. PW5 separated one quarter bottle for specimen and remaining liquor was kept by him in the plastic cane recovered from the accused. PW5 filled up the Excise Form No. M29, which was proved as Ex. PW5/A. PW5 tied the sample bottle and the cap of the plastic cane with a white colour cloth and were sealed with the seal of "BS", which seal was thereafter given to Constable Ravinder. The case property was seized via seizure memo Ex. PW 4/A. PW5 prepared the tehrir Ex. PW5/B, whereafter the case was registered through PW4. After the registration of the FIR, PW2 ASI Khajan Singh, returned to the spot with PW4 and conducted the further investigation, collected the custody of the accused, case property & other documents from PW5 and prepared the site plan at the instance of PW5. PW2 also recorded the statement of the PW5 under Section 161 Cr. P.C. The case property i.e. the plastic cane was identified as Ex. P1.
27.08.2009 Page 3 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
4. The next witness of prosecution PW4 Constable Jeet Singh, Belt No. 137/PTC, who had deposed on similar lines as regarding the receipt of the information from the secret informer, composition of the raiding party, forming of nakabandi & arrest of the accused, as has been previously deposed by PW5 since PW4 was one of the members of the raiding party headed by PW5. PW4 deposed that the case property was taken into possession via seizure memo Ex. PW4/A, whereafter PW5 prepared the ruqqa, whereupon the present FIR was lodged through PW4, wherein PW2 ASI Khajan Singh was deputed as an I.O., who arrested the accused via arrest memo Ex. PW2/B, conducted the personal search memo of the accused via Ex. PW2/C. PW4 identified the case property i.e. plastic cane as Ex. P1. PW4 also deposed that after the apprehension of the accused, the sample taken by PW5 was tied with white colour cloth and the cap of the plastic cane recovered from the accused was also tied with the white colour cloth, which were both sealed with the seal of "BS", which seal thereafter was handed over to Constable Ravinder.
5. Next witness of the prosecution was I.O. PW2 ASI Khajan Singh, who had deposed that on 31.10.2001, he was assigned the investigation of the present case, whereafter he arrived at the spot with PW4 & had started investigation. PW2 further deposed that PW5 handed over the accused to him, whereafter he prepared the site plan Ex. PW2/A, personal search memo 27.08.2009 Page 4 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
of the accused Ex. PW2/C & arrest memo of the accused as Ex. PW2/B. PW2 further deposed that he had recorded the statements of PW4 & PW5 and had sent the sample bottle to the CFSL for opinion through Constable Girwar Singh (PW6) on 13.11.2001.
6. Next, the PW6 Constable Girwar Singh, Belt No. 2089/PCR deposed that on 13.11.2001, he was posted at P.S. Chandni Mahal and on the direction of PW2 ASI Khajan Singh, he had received one pullinda sealed with the seal of "BS" from malkhana alongwith Excise Form M29, which was deposited by him with Excise Laboratory vide receipt No. 60/21, which receipt was handed over by him to the concerned MHC (M). PW6 further deposed that till the time pullinda was in his possession, the same was not tempered with by anybody or himself.
7. The further witness of the prosecution was PW3 H.C. Ved Prakash, Belt No. 58/ND, who had deposed that on 30.10.2001 he was the duty officer at P.S. Chandni Mahal from 12.00 a.m. to 8.00 a.m., where on the said date at 12.05 a.m., PW4 brought a tehrir sent by PW5, whereafter the present FIR was lodged. The FIR in question which was lodged was proved as Ex. PW3/A.
8. The last witness of prosecution was PW1, H.C. Riaz Mohd., Belt No. 179/C, who had brought register No. 19 & 21 and deposed that as per 27.08.2009 Page 5 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
register No. 19 on 31.10.2001 one plastic cane & sample bottle sealed with the seal of "BS" were deposited by PW5 in the malkhana against entry No. 1978. PW1 further deposed that on 18.11.2001, PW6 received the sample bottle and Form No. M29 from the malkhana for depositing the same with the Excise Laboratory, which was deposited with the laboratory via receipt No. 60/21. The relevant entries made in register No. 19 & 21 were respectively proved as Ex. PW1/A & PW1/B by PW1.
9. No other witness was examined by the prosecution and after completion of prosecution evidence, all the incriminating evidence was put to the accused in the statement of accused recorded under Section 313 Cr. P.C. wherein while denying the allegations, the accused had taken the plea of "False Implication". No evidence in defence was led however by the accused.
10. I have heard Ld. APP for State and the accused, who has appeared in person and has also gone through the case file very carefully.
Ld. APP for the State submitted that in the present case, the accused is liable to be convicted for the offence under Section 61 Excise Act on the basis of depositions made by various prosecution witnesses.
On the other hand, the accused submitted that he has been falsely implicated in this case and thus his acquittal has been prayed for. 27.08.2009 Page 6 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
11. I have given a considered thought to the rival submissions made by Ld. APP for state and the accused, keeping in view the material available on the judicial file.
12. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
13. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story.
14. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: 27.08.2009 Page 7 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
"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, 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 personality by signature or seal.
Note: The term Police Station will include all places such as Police Lines & 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. As per the prosecution version, at the time of the apprehension of the accused with illicit liquor from his possession, PW-5 with PW5 & Constable Ravinder were on area patrolling duty, but the said DD entry vide which they had left the P/S for patrolling has not been brought on record. In my opinion, the prosecution was under an obligation to bring on record and prove the above said DD entry vide which the above said police officials had left the PS for patrolling duty, so as to prove the possibility of availability of PW 5, PW4 & Constable Ravinder at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have brought on record & prove the DD entry by which the above said police officials had left the PS, so as to inspire the confidence regarding their availability/presence at the place of apprehension of the accused, since the said police officials were under bounden duty to enter their 27.08.2009 Page 8 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
departure & arrival from/at the police station by making a D.D. entry in that respect as per the aforesaid mentioned P.P. Rule.
At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the relevant DD entry as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the raiding party.
16. As per rukka Ex. PW5/B and testimonies of PW4 & 5, PW5 before conducting the raid asked the 45 passerby's to join the raid, but all of them left the spot after giving reasonable excuses without disclosing their names and addresses. Now as per rukka, it is clear that no serious attempt was made by the concerned police officials i.e. PW4, PW5 & Constable Ravinder to get independent public persons to join the police proceedings of raid and of subsequent apprehension of the accused despite availability of such witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the raiding party, they could have served the 27.08.2009 Page 9 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of seeking their initial assistance for joining the raid or later at the time of apprehension of the accused since after the apprehension of the accused, there was no possibility of accused escaping his arrest or crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the conceptualization of the raid on information from the secret informer and also at the spot of the arrest & search of the accused on the spot of apprehension by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314 (HC), High Court of Delhi had observed as under: "18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is 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 27.08.2009 Page 10 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC". In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and 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 form 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". "4. 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 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 facts taken together make the prosecution case highly doubtful". 27.08.2009 Page 11 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
17. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under: "5. 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". "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh, PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
18. Neither anywhere in rukka nor in the testimonies of PW4 & PW5, it is mentioned that after the apprehension of the accused but before taking the formal/casual search of the accused, the police officials including the members of the raiding party, any of them had offered their own search to the accused, meaning thereby, that it has not been proved on record that PW4, PW5 or Constable Ravinder, who had effected the apprehension of the accused had offered himself for search by the accused or to any other member of public 27.08.2009 Page 12 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
before conducting the search of the accused so as to obviate the possibility of the planting of the case property on to the accused.
At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa" wherein it was held as under: "10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J.
279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 & 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
19. Being guided by above said case law, it can be said that search of the accused by above said police official (s) i.e. members of the raiding party was in complete violation of the above said case law and the same can be said to be illegal & motivated, more so, in the circumstances as discussed herein above which otherwise makes the story of prosecution doubtful.
20. As per rukka and testimony of PW4 & PW5, the seal i.e. "BS" after 27.08.2009 Page 13 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
use on the pulanda containing the case property allegedly recovered from the accused was given to none else but to Constable Ravinder, the one who himself is a material prosecution witness being member of the raiding party & one of the witnesses to the alleged recovery of the illicit liquor from the possession of the accused. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication & planting of the case property cannot be ruled out beyond reasonable doubt. Further, surprisingly, Constable Ravinder, one of the members of the raiding party, to whom the seal of "BS" given by PW5 after sealing the seized articles, which has further dented the case, particularly, when the I.O. PW2 has not mentioned in his testimony that he had examined Constable Ravinder during investigation, meaning thereby that the Constable Ravinder was not even investigated or his statement was recorded by the I.O. during investigation. The aforesaid omission has further brought the prosecution's case under doubt.
21. In my opinion framed in view of the above mentioned discussion, it can be safely concluded that prosecution has failed to prove its case on judicial file beyond reasonable doubt. There do exist such doubts & unexplained holes in the prosecution story and as such accused is given benefit of doubt & is hereby acquitted of the charge framed against him. His bail bond is canceled & the surety bond stands discharged. Original documents of the surety, if any on 27.08.2009 Page 14 of 15 of Pages FIR No. 206/01 P.S.: Chandni Mahal U/s: 61 Excise Act.
record, be returned to surety against acknowledgment after canceling the endorsements thereupon. Case property be destroyed as per rules. Copy of this judgment be given dasti to the accused free of cost. File be consigned to record room.
Announced in the open court on 27.08.2009.
(SIDHARTH MATHUR) M.M. (CENTRAL - 02) DELHI 27.08.2009 Page 15 of 15 of Pages