Delhi District Court
State vs . Raju on 10 September, 2015
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI.
FIR No.134/2013
PS - Nangloi
State Vs. Raju
Unique Case ID No.02401R0283972014
JUDGMENT
(a) Sr. No. of the case 9/2/14
(b) Date of offences 29.04.2013
(c) Complainant HC Ranjeet Singh, No.506W, PS Nangloi, New Delhi.
(d) Accused person(s) Raju S/o Sh. Gyan Chand R/o X - 55, Camp No.01, J. J.
Colony, Nangloi, New Delhi.
(e) Offence(s) Under Section 33 and 38 of Delhi Excise Act, 2009.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 03.06.2014
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 10.09.2015
The brief facts of the case are that :
1. The accused has been charge sheeted for committing offences punishable under Section 33 and 38 of Delhi Excise Act, 2009. The allegations against the accused are that on 29.04.2013 at about 08:30 pm at Near Surajmal FIR No.134/2013 Page No.1 of 12 Stadium, Metro Station, Main Rohtak Road, Nangloi, New Delhi, accused was found in possession of illicit liquor as per seizure memo Mark 'X' without any license, permit or pass and in contravention of notification issued by Delhi Government and said liquor recovered from him was not of Delhi Excise and he possessed the same having knowledge that same has been transported/unlawfully imported into Delhi without prescribed duty being paid on it. According to prosecution, accused thereby committed offences punishable under Section 33 and 38 of Delhi Excise Act, 2009.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed against the accused for offences punishable under Section 33 and 38 of Delhi Excise Act, 2009 vide order dated 21.10.2014 to which he pleaded not guilty and claimed trial. PROSECUTION EVIDENCE Main Witnesses(s)
3. The prosecution examined four witnesses to prove its case. PW2 HC Ranjeet Singh and PW3 Ct. Sonu have deposed that on 29.04.2013 at about 08:15 pm, when they were on patrolling duty at Camp No.01, Surajmal Stadium, Nangloi, one secret informer met them and informed that one person would come from side of DTC Depot, Nangloi having illicit liquor and he might have some illegal weapon also. FIR No.134/2013 Page No.2 of 12 On this, PW2 asked 4 - 5 persons to join investigation, but, none agreed and left the place without disclosing their names and addresses assigning their personal problems. PW2 shared said information with the then SHO over phone. PW2 prepared raiding party with PW3 and secret informer also accompanied them. In the meantime, one Ct. Satyawart also reached at the spot. After sharing said information, Ct. Satyawart also became part of their raiding party. At about 08:35 pm, one person came on foot from side of DTC Depot, Nangloi having one plastic sack. The secret informer pointed out towards said person. They started proceeding towards said person and on seeing them, said person turned back and started running, but, was overpowered after chasing 15 - 20 steps. PW2 checked said plastic sack and found 100 quarter bottles of illicit liquor labeled with label of "Best Desi Masaledar Sharab" for sale in Haryana only. PW2 took two samples quarter bottles and gave them serial number as 01 and 02. The remaining 98 quarter bottles were kept in said plastic sack, tied it with white cloth, prepared pullanda and sealed it with seal of 'RS'. The sample bottles were also tied with white cloth and were sealed with seal of 'RS'. Thereafter, PW2 interrogated accused and he disclosed his name as Raju. PW2 also took cursory search of accused Raju and recovered one desi katta from his possession. PW2 filled Form No.29 vide Ex.PW2/A. The recovered illicit liquor was seized vide Ex.PW2/B. PW2 prepared Rukka vide Ex.PW2/C and handed over it to PW3 for getting FIR FIR No.134/2013 Page No.3 of 12 registered. PW3 went to PS and after one hour after registration of FIR, PW3 along with IO HC Jagbir came back at the spot and handed over the same to PW2. PW2 handed over documents prepared by him to IO HC Jagbir. PW2 also handed over custody of accused alongwith sealed case property to IO. IO prepared site plan Ex.PW2/D, arrested accused vide Ex.PW2/E, conducted his personal search vide Ex.PW2/F and recorded his disclosure statement. Thereafter, PW2 started separate investigation regarding desi katta recovered from possession of accused Raju of case FIR No.135/2013 of PS Nangloi. PW3 has further deposed that after about 14 - 15 days of incident, on directions of IO, he took sample bottles alongwith Form M - 29 to Excise Laboratory, ITO vide RC No.87/21/3 and returned receipt of same to MHC(M). PW2 and PW3 correctly identified accused and case property Ex.P1 in Court. PW2 and PW3 were examined, crossexamined and were discharged.
4. PW4 HC Jagbir Singh has deposed that on 29.04.2013, he was posted at PS Nangloi and was on night patrolling duty. At about 10:15 pm, Ct. Sonu handed over original Rukka with a copy of FIR to him. He alongwith Ct. Sonu went to place of incident i.e. Surajmal Stadium where he met with HC Ranjit Singh and Ct. Satyawart. They handed over custody of accused to him alongwith case property recovered from possession of accused. He made inquiry from accused, recorded his disclosure statement Ex.PW2/G, arrested him vide Ex.PW2/E and conducted his FIR No.134/2013 Page No.4 of 12 personal search vide Ex.PW2/F. Accused was taken to hospital for his medical examination. He also prepared site plan Ex.PW2/D at instance of the HC Ranjeet Singh, recorded statements of witnesses and deposited case property with malkhana. Next day, accused was produced before the Court and was sent to JC. Later on, samples of case property were sent to Excise Lab. He collected result Ex.PW4/A. After completion of investigation, charge sheet was prepared and was filed in Court with all materials collected during investigation. PW4 was examined, crossexamined and was discharged.
Formal Witness(es)
5. PW1 HC Ganga Sahai has proved and exhibited formal FIR Ex.PW1/A and endorsement on Rukka Ex.PW1/B in his evidence. PW1 was examined, not crossexamined by accused despite opportunity given and was discharged.
6. On 25.08.2015, further prosecution evidence was closed. STATEMENT OF ACCUSED
7. After closure of prosecution evidence, statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating evidence was put to him. Accused person denied all the allegations and stated that he is innocent and has been falsely implicated in this case. Accused opted not to lead FIR No.134/2013 Page No.5 of 12 evidence in his defence.
8. Final arguments from both sides heard. Records perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. In matter of "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55, Hon'ble Punjab & Haryana High Court, it has been held that : "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."
10. As per chapter 22 rule 49 of the Punjab Police Rules (also applicable to Delhi Police) which is reproduced herein for ready reference : Chapter 22 Rule 49 of Punjab Police Rules, 1934 : "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 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.
11. In the present case, the above said provision has not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police officials have not been proved on record.
12. At this juncture, it would be relevant to refer to a case law reported as FIR No.134/2013 Page No.6 of 12 "Rattan Lal Vs. State", 1987 (2) Crimes 29, Hon'ble High Court of Delhi, it has been held 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. 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."
13. Public witness has admittedly not being joined in investigation though available as the spot of recovery is a busy place and recovery is stated to have been affected at about 08:35 pm. PW2 has also not written down the names of persons who were present at the spot and were requested by him to join the investigation. No written notice was admittedly served upon them. The testimony of official witnesses, therefore, does not find any corroboration from any independent source. In view of this Court, the nonjoining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
In matter of "Anoop Joshi Vs. State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi held that : "It is repeatedly laid down by this Court that 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 evident 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 rigours of law while declining to perform their legal duty to assist FIR No.134/2013 Page No.7 of 12 the police in investigation as a citizen, which is an offence under the IPC''.
In matter of "Roop Chand Vs. The State of Haryana", 1999 (1) C.L.R 69, Hon'ble Punjab & Haryana High Court held 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 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''.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under : "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these FIR No.134/2013 Page No.8 of 12 eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases FIR No.134/2013 Page No.9 of 12 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."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
14. According to deposition of prosecution witness(es), case property was first seized and Form M - 29 was prepared before registration of FIR. Thus, according to witnesses, FIR was registered after seizure of illicit liquor and filing of form M - 29. PW2 has deposed in his crossexamination that he did not make any addition/alteration or subtraction in said documents once he has prepared them. PW4 has deposed in his crossexamination that seizure memo did not bear FIR number FIR No.134/2013 Page No.10 of 12 when it was handed over to him by PW2. So, he meant that he filled the FIR number in seizure memo, but, perusal of seizure memo Ex.PW2/B and form M - 29 Ex.PW2/A reveals that the FIR number have been written in same handwriting and ink as other portions of said exhibits, therefore, it is clear that FIR numbers have also been written by PW2 in both said documents. In totality of circumstances, the existence of FIR number on seizure memo and form M - 29 in handwriting of PW2 suggests that seizure memo and form M - 29 were prepared after registration of FIR, therefore, are antetimed. This erodes the credibility of witnesses who have stated that seizure memo and form M - 29 were prepared on the spot and before registration of FIR. The seal after use was not handed over to any independent person by investigating officer and the same also creates a doubt whether the case properties were genuinely recovered in this matter or not. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as 1996 JCC 497. In these circumstances, abovesaid facts also erode credibility of prosecution evidence.
15. Accordingly, in view of the aforesaid facts, it has to be concluded that the prosecution has failed to establish beyond reasonable doubt that the alleged recovery was infact made from accused.
16. Section 52 of Delhi Excise Act, 2009 provides that presumption is raised with respect to commission of offence until the contrary is proved that the FIR No.134/2013 Page No.11 of 12 accused has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
17. Hence, before the presumption is raised the prosecution has to establish that illicit liquor was recovered from the accused. However, in this case, prosecution has failed to prove beyond reasonable doubt that illicit liquor was recovered from the possession of accused. Accordingly, presumption of Section 52 of the act ibid cannot be invoked.
18. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has failed to prove its case against the accused beyond shadow of reasonable doubt. Accused Raju is accordingly acquitted for offences punishable under Section 33 and 38 of Delhi Excise Act, 2009. Case property be confiscated to the State (if not already confiscated) and be destroyed after expiry of period of appeal (if it is still not destroyed).
19. File be consigned to Record Room after due compliance.
Announced in the open Court on September 10, 2015.
(HARVINDER SINGH) M.M.03/THC (West), Delhi/10.09.2015 FIR No.134/2013 Page No.12 of 12