Delhi District Court
Sate vs . Krishan Kumar Etc. on 12 January, 2010
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IN THE COURT OF SH. DEEPAK WASON: MM:
ROHINI COURT: DELHI.
Sate Vs. Krishan Kumar etc.
FIR No. 187/99
U/s. 61/1/14 Excise Act
PS Narela / Bawana
Date of Institution of case:- 14.02.00
Date of Judgment reserved:- 12.01.10
Date on which Judgment pronounced:- 12.01.10
JUDGMENT
Sl. No of Case :355/3
Date of commission of offence :07.07.99
Name of complainant :HC Patram, no. 79/NW, P.S Bawana,
Delhi.
Name and address of accused :1.Krishan Kumar S/o. Sh. Prem Chand,
R/o. A-5/80, Sultan Puri, Delhi (since P.O.)
2.Rahul S/o. Sh. Nand Lal, R/o.
Haryana Power House, Indra Colony, Punjabi Bagh, Delhi.
Offence complained of :61/1/14 Excise Act Plea of accused :Pleaded not guilty Final order :Acquitted Date of order :12.01.2010 BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
On 7.7.99, HC Patram, no. 79 North-west alongwith 1 Contd.../-
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< = > ? @ < A 9 B > C D 9 ? : 8 E = F G!H#I%J = K(L*M,N.O O P 7 I 9 ? : Q 91N3R49 S69 B 9 Ct. Vinod Kumar no. 1989 North-west were on patrolling duty at village Prahlad Pur Bangar, Main Bawana Road where they met Ct. Sanjay Kumar from EIB Department and in the meanwhile, they received a secret information that one white color Maruti Car having registration no. DL-3CN-2605 will come from the side of Bawana having illicit liquor in it. After gaining the said information, they made a nakabandi and at about 6.30 p.m., as per the information given by the secret informer, one white color Maruti car having registration no. DL-3CN-2605 was found coming from the pre-disclosed direction. Accused Krishan Kumar (since P.O) was found driving the said car and accused Rahul was sitting by his side. They were apprehended and on the search of the car, they were found to be in possession of illicit liquor, which was carrying without any permit or licence and on the basis of the said allegations, the present FIR bearing no. 187/99 was registered at Police station Bawana and the accused persons have been charged with the offences under Section 61/1/14 Excise Act.
2. After investigation, charge sheet was filed against the accused persons. The copies of charge sheet were supplied to the accused persons in compliance of Section 207 Cr.P.C. and charge U/s. 61/1/14 of Excise Act, 1961 was framed against 2 Contd.../-
T U V U W X Y Z [ \ ] Y ^ V _ [ ` a V \ W U b Z c d!e#f%g Z h(i*j,k.l l m T f V \ W n V1k3o4V p6V _ V both the accused persons to which the accused persons pleaded not guilty and claimed trial.
3. It is matter of record that during the trial, both the accused persons started absenting and they were declared proclaimed offender vide order dt. 27.5.08. However, accused Rahul was again apprehended and produced before the court.
4. In support of its version, the prosecution has examined four witnesses. However, the list of witnesses contain eight witnesses. Vide order dt. 5.12.09, last and final opportunity was given to the prosecution and accordingly, on the said date the prosecution evidence was closed.
5. PW 1 is ASI Ishwar Singh, no. 2327 D North Zone, PCR, Delhi. The said witness is the duty officer who has registered the present FIR no.187/99 under Section 61/1/14 Excise Act. He has proved the registration of the FIR as Ex. PW 1/A.
6. PW 2 is Ct. Vinod Kumar, no. 1150/Traffic, Dariya Gunj, Circle, Delhi. He is the witness of initial recovery who had accompanied the IO HC Patram. He has deposed that on 3 Contd.../-
q r s r t u v w x y z v { s | x } ~ s y t r w !#% w (*,. q s y t s134s 6s | s 07.07.09 he was posted at PP Shahbad Dairy and was on patrolling duty alongwith HC Patram at Village Prahlad Pur Bangar, Main Bawana Road, where Ct. Sanjay Kumar from EIB met them. In the meanwhile, secret information received them to the effect that one Maruti Car of white color having registration no.DL-3CN-2605 will come from the side of Bawana having illicit liquor, upon which HC Patram requested 4/5 passersby to join the raiding party, but none agreed. They placed nakabandi at Khera More near Higher Secondary School and at about 6.30 p.m., they noticed the aforesaid car coming from the pre-disclosed direction. He has also deposed regarding the recovery stating that the recovery of illicit liquor was effected from the custody of the accused persons vide seizure memo Ex. PW 2/A. He further deposed that certain samples were retained and the remaining recovered quarter bottles were sealed with the seal of RS. He has further deposed that seal after use was handed over to him. He has also mentioned about the preparation of original rukka. He has further deposed that the accused persons were arrested and their personal search were conducted vide memo Ex. PW 2/B and Ex. PW 2/C respectively. He has further deposed that both the accused persons alongwith case property were brought to police station and IO deposited the case property in the malkhana.
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7. PW 3 is HC Sanjay Kumar, no. 112 DRP, SIT Crime Branch, Rohini, Delhi. He is also the witness of initial recovery who had accompanied the IO HC Patram.
8. PW 4 is ASI Devinder Kumar, no. 4725 D, Special Cell, Chanakyapuri, New Delhi. He is the second IO of the case. He has deposed that on 07.07.09, after receiving call from duty officer regarding recovery of illicit liquor, he alongwith Ct. Kuldeep Singh reached at Village Prahlad Pur Bangar, near Higher Secondary School, Khera Mod where HC Patram, first IO of the case had met them who had handed over both the accused persons namely Krishan (since P.O.) and Rahul, one car bearing registration no. DL-3CN-2605 and illicit liquor to him. He further deposed that site plan Ex. PW 4/A was prepared by him. He further deposed that accused persons were arrested and their personal search were conducted vide memo Ex. PW 4/B & Ex. PW 4/C and Ex. PW 4/D & Ex. PW 4/E respectively. It is further deposed by him that the retained samples were deposited in the excise lab by Ct. Kuldeep.
9. No other witness was examined by the prosecution and accordingly, prosecution evidence was closed vide order 5 Contd.../-
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10. Subsequent to the recording of statement of witnesses, statement of accused under Section 281 Cr.P.C. was recorded and all the incriminating evidence coming on record was put to the accused in which he has submitted that has been falsely implicated in the present case. He has further submitted he does not wish to lead any evidence. Thereafter, the matter was posted for final arguments.
11. I have heard the final arguments advanced by both the parties and record perused.
12. In the present matter, it has come in the evidence that the police officials have requested 4/5 passersby to join the raiding party, but none agreed and left away the spot without disclosing their names and addresses. In these circumstances like the present one, the police official should have made an effort to join public witnesses during the recovery proceedings and if public persons would have refused to assist the members of the police party, they could have served the said public witnesses with a notice in writing to join the police proceedings. This thing has not been happened in the present case.
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13. 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 shop-keepers 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 the police in investigation as a citizen, which is an offence under the IPC".
14. 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 7 Contd.../-
å æ ç æ è é ê ë ì í î ê ï ç ð ì ñ ò ç í è æ ó ë ô õ!ö#÷%ø ë ù(ú*û,ü.ý ý þ å ÷ ç í è ÿ ç1 ü 4ç 6ç ð ç witnesses that some witnesses from 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 non-joining the witnesses from the public is an after thought and is not worth of 8 Contd.../-
"!$#&%(' )+*-,/.10 0 2 % 3 4. 56 78 credence. All these facts taken together make the prosecution case highly doubtful".
15. It is settled proposition of law that Sub section 4 of Section 100 Cr.P.C. is a directory provision, however, explanation of non joining of independent witness should be plausible. The explanation put forward by the prosecution for non joining of independent witness appears to be implausible for reason that there was ample time with the IO to atleast note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation. In the present case, no efforts were made to hand over the seal after use to independent public persons. PW 2 had deposed that the seal after use was handed over to him. In such circumstances, the possibility of tampering the case property cannot be ruled out. In such cases, in view of Saifulla Vs. State reported in 1998 (1) CCC 497 (Delhi) and Abdul Gaffar Vs. State reported in 1996 JCC 497 (Delhi) benefit of doubt is to be given to the accused. Further, MHC(M) has also not been examined. Further, the first IO has not been examined in this case who could have explained this fact. Non-examination of first IO is fatal to the prosecution.
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16. In view of the above said discussion, I am of the considered view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused stands acquitted from the charges U/s. 61/1/14 Excise Act, 1961.
17. Bail bond cancelled and surety discharged. Endorsement if any, be cancelled and documents if any, be returned, against acknowledgment.
File be consigned to Record room after necessary compliance and be revived as and when accused Krishan Kumar (since P.O.) is arrested.
Deepak Wason Metropolitan Magistrate Announced in open court Rohini Court, Delhi Dated 12th January, 2010.
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