Delhi District Court
Police Station: Sarita Vihar State vs . Ishwar Chand Page No. 1 Of 7 on 31 July, 2015
IN THE COURT OF SHRI ARVIND BANSAL
METROPOLITAN MAGISTRATE (SOUTH-EAST) - 05
SAKET COURTS : NEW DELHI
JUDGMENT
FIR No.: 40/13 Police Station: Sarita Vihar ID No. 0240R0119582013 U/s 33 Delhi Excise Act State Versus Ishwar Chand s/o Sh. Uday Ram r/o H. No. 9, Gali No. 1, Aali Village, Sarita Vihar, New Delhi.
.... Accused
(a) Date of Institution: 06.05.2013
(b) Date of Offence: 25.01.2013
(c) Plea of accused: Pleaded not guilty and claimed trial
(e) Argument heard and
reserved for order: 31.07.2015
(f) Final Order: Acquitted
(g) Date of Judgment: 31.07.2015
Brief statement of reasons for decision of the case:
1. The case of prosecution against the accused is that on 25.01.2013 at about 02:30 pm at H. No. 9, In front of Gali No.1, Gali Saream, Aali Gaon, Sarita Vihar, New Delhi, accused was found in possession of three cartons of 48 quarter bottles each of illicit liquor of brand name 'Rasila Santra Masaledar Sharab', for sale in Haryana only, without any license or any permit and in FIR No. 40/13 Police Station: Sarita Vihar State vs. Ishwar Chand Page No. 1 of 7 violation of Rule 20, Delhi Excise Rules, 2010, by the police raiding party. FIR was got registered. The case property was seized and deposited in malkhana, statements of witnesses were recorded and sample bottles were sent for chemical examination and finally, upon completion of necessary investigation, the charge sheet u/s 173(2) Cr.P.C was filed before the Court against the accused for trial.
2 Court took cognizance of offence upon aforesaid charge sheet. Pursuant to his appearance, accused was supplied the copies of chargesheet/documents in compliance of Sec. 207 Cr.P.C and matter was listed for consideration on charge. Upon hearing the arguments advanced at bar by Ld. counsel for the parties and on perusal of record, prima facie case against the accused for the offence punishable u/s 33 Delhi Excise Act was found to be made out. Charge was framed accordingly against the accused to which he pleaded not guilty and claimed trial. Thereafter, case was fixed for prosecution evidence.
3 In support of its case, prosecution has produced and examined only three witnesses.
PW1 ASI Devender Kumar testified that on 25.01.2013, he along with Ct. Mukesh Kumar and Ct. Satpal was on patrolling duty in beat area Aali village. At about 02:00 pm, they reached at Aali village chowk where secret informer met and informed that a person namely Ishwar who was BC of PS Sarita Vihar was selling illicit liquor in front of his house. After that information, he informed his senior officials in PS who directed to take action. He requested four/five persons to join investigation but none agreed and left the spot without disclosing their names and addresses. He prepared a raiding team including himself, Ct. Mukesh & Ct. Satpal. At about 02:30 pm, they reached H. No. 9, Gali No. 1, Aali village where secret informer pointed out the place and left the spot. In front of abovesaid house, he saw that one person who was sitting FIR No. 40/13 Police Station: Sarita Vihar State vs. Ishwar Chand Page No. 2 of 7 on cot and one plastic Katta was kept under the same. He apprehended said person whose name was revealed as Ishwar. He checked plastic Katta and found three cartons of illicit liquor. Fourty eight quarter bottles of 'Rashila Santra Masaledar Desi Sharab' for sale in Haryana were recovered in each carton. He took out one bottle from each carton as a sample and remaining bottles were kept in cartons and same were put in the plastic katta. He put seal of 'RS' on plastic katta and sample bottles. Same was also seized vide seizure memo Ex. PW1/A. Seal was handed over to Ct. Satpal. He filled form M-29 which is Ex. PW1/B. He prepared Rukka Ex. PW1/C. Rukka was handed over to Ct. Mukesh for registration of FIR. Ct. Mukesh went to PS for registration of FIR. After registration of FIR, investigation was handed over to ASI Suresh Chand. ASI Suresh Chand along with Ct. Mukesh reached the spot and he handed over sealed property, seizure memo of property and apprehended accused to ASI Suresh Chand. ASI Suresh Chand prepared site plan Ex. PW1/D. He correctly identified the case property is Ex. P-1 (Colly).
The witness was duly cross examined by defence counsel PW2 ASI Suresh Chand testified that on 25.01.2013, on receipt of copy of FIR and original Rukka, he along with Ct. Sanjay copy went to spot i.e. H. No. 9, Gali No. 1, Aali Village, New Delhi where ASI Devender, Ct. Mukesh and Ct. Satpal met him. ASI Devender Singh handed over him seized illicit liqour. He prepared site plan at instance of Ct. Satpal. He arrested and personally searched the accused vide memos Ex. PW2/A & Ex. PW2/B respectively. He recorded statement of witnesses. He got conducted medical examination of accused. He deposited case property in Malkhana. He also sent sample of illicit liquor in Excise Laboratory through Ct Bijender. He collected result from Excise Laboratory. He prepared chargehseet and filed before Court through concerned SHO.
The witness was duly cross examined by defence counsel.
FIR No. 40/13Police Station: Sarita Vihar State vs. Ishwar Chand Page No. 3 of 7 PW3 Woman SI Adrina proved the present FIR as Ex. PW3/A and endorsement made by her on Rukka as Ex. PW3/B. Vide separate statement recorded u/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, accused admitted the genuineness of chemical examiner report as Ex.A1.
4. In his statement recorded u/s 313 Cr.P.C, accused denied all the incriminating evidence against him and pleaded innocence and false implication. However, no evidence in defence was produced by accused.
5. The scrutiny of testimonies of police witnesses and Rukka Ex. PW1/C provides that illicit liquor was recovered on 25.01.2013 at about 02:30 pm at H. No. 9, In front of Gali No. 1, Gali Sareaam, Aali Gaon, Sarita Vihar, New Delhi. The place and timing of arrest of the accused is such where the presence of independent public witnesses cannot be ruled out. Rather, PW1 admitted in his examination and PW2 in his cross examination that passersby were present at the spot at the relevant time and were requested to join proceedings.
Whether association of such persons as public witnesses was possible in the facts and circumstances of this case is a fact and the burden to prove the same lies on prosecution. The preparation of seizure documents before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion. This was even more possible in the present case as the accused had already run away from the spot FIR No. 40/13 Police Station: Sarita Vihar State vs. Ishwar Chand Page No. 4 of 7 and police had sufficient time to make the people understand about the nature of proceedings and make them a witness.
There is nothing in the testimony of any of police witnesses whether any sincere efforts were made by them to join the independent witness. The only explanation accorded by the IO is that they refused to join the proceedings. Such an ordinary reply/ explanation of the IO does not support the case of prosecution. The IO has failed to depose to the effect whether even the names and addresses of such public persons were asked for or recorded. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the local police in the present case cannot be ruled out.
The aforesaid observation of the Court is fortified by following observations in case titled Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, by Hon'ble High Court of Punjab & Haryana:
"...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..."
7. The aforesaid lapse on the part of police officials assumes significance on account of another grave contradiction apparent in seizure memo Ex.PW1/A. The said document bears the FIR number. It is an admitted case of the prosecution that the said document was prepared by IO before sending Constable Mukesh with Rukka for registration of FIR. Further, FIR number has been inserted in Ex. PW1/A in the same handwriting as that of the remaining contents of the document.
FIR No. 40/13Police Station: Sarita Vihar State vs. Ishwar Chand Page No. 5 of 7 In this regard, reference can be made to the judgment of Hon'ble High Court of Delhi in case titled as Mohd Hasim V/s State 1999 VI AD (Delhi) 569 wherein it was observed:
"...documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and in both cases, prosecution case would collapse."
It raises doubt that the entire paper work was done by the police officials at the Police Station itself. It further strengthens the doubt of false implication of the accused.
This leaves a possibility of planting the case property at the discretion of police officials.
8. The prosecution has not brought on record any document of handing over of seal of 'RS' by IO to Ct. Satpal after using the same for sealing the case property. There is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station Sarita Vihar. In these circumstances, the possibility of tempering with case property cannot be ruled out. In fact, at the time of production of case property before Court, the seal was not intact.
9. Prosecution was also under burden to prove the presence of all the patrolling police officials on the spot. Despite being challenged on the said aspect, prosecution failed to prove this fact on record. It is a statutory obligation upon the police officials to enter their departure and arrival time in the daily dairy register kept in the police station. Not adhering thereto is a violation of Rule 22.49 of Punjab Police Rules. Any apparent violation of the law by police officials cannot be overlooked and the adverse inference can definitely be drawn.
FIR No. 40/13Police Station: Sarita Vihar State vs. Ishwar Chand Page No. 6 of 7
10. The aforesaid contradictions, in the considered opinion of the Court, are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused regarding possession or sale of illicit liquor, and extend the benefit of doubt to the accused. Accordingly, accused Ishwar Chand is acquitted of the charged offence punishable u/s 33 Delhi Excise Act.
Announced in the Open Court on July 31, 2015 (ARVIND BANSAL) Metropolitan Magistrate(South-East)-05 Saket Courts, New Delhi FIR No. 40/13 Police Station: Sarita Vihar State vs. Ishwar Chand Page No. 7 of 7