Delhi District Court
The F.I.R. Is Numbered As 36 vs Unknown on 13 March, 2020
IN THE COURT OF SH. PRITU RAJ
METROPOLITAN MAGISTRATE01
ROHINI COURTS, DELHI.
TITLE: : State v. Heena
FIR NO. : 548/2016
P.S. : Sultanpuri
RNO. : 5052017
Date of commission of offence : 28092016
Name of Informant/complainant : Ct. Harjinder
Name of accused : Heena
Offence/s complained of : 33/38 Delhi Excise Act.
Cognizance under section/s : 33/38 Delhi Excise Act.
Chages framed under section/s : 33/38 Delhi Excise Act.
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 13032020
Date of pronouncement : 13032020
Final Order : Acquittal
For the Prosecution : Ld. APP
For the Defence : Sh. Subhash Kumar Malawat
Present : Pritu Raj
M.M. 01,
Rohini Courts, Delhi.
FIR No. 548/2016 State v Heena Page No. 1 of 9
JUDGEMENT
1. The accused Heena is facing trial for offences u/s 33/38 Delhi Excise Act, 2009.
2. Stated succinctly, the facts germane for the prosecution of the case is that on 28092016 at about 09:30 am, the informant was on patrolling duty with W/Ct. Sarla near 908 bus stand, S. Puri. They saw a lady standing in front of Jhuggi No. C1 standing with a katta. She was questioned on suspicion and when no satisfactory answer could be given by her, the katta was checked and it was found to have allegedly contained illicit liquor.
3. On the written application of the informant, Sultanpuri P.S. registered in relation to the above incident as FIR no. 548/2016 on 28092016 and, after investigation, submitted the charge sheet on 02012017 against the aforementioned accused person u/s 33/38 Delhi Excise Act, 2009. Cognisance was taken vide. order dated 27012017.
4. Charges u/s 33/38 Delhi Excise Act, 2009 were framed and read over to the accused, in Hindi, on 05082017 to which she denied the incident and claimed to FIR No. 548/2016 State v Heena Page No. 2 of 9 be tried.
5. The prosecution, in order to prove the case beyond all reasonable doubt, examined six witnesses in support of its case during the course of trial.
6. Evidence on behalf of the prosecution was closed vide order dated 2811 2019 and the matter was fixed for SA. The accused was duly examined under the provisions of s. 313 Cr.P.C. wherein she preferred not to lead any DE. Final arguments were heard on behalf of both sides and the matter was fixed for judgement vide order dated 13032020.
APPRECIATION OF EVIDENCE
7. The primary issue to be decided in the present case is whether the prosecution has been able to prove it's case against the accused beyond all reasonable doubt.
8. On a perusal of the oral and documentary evidence led by the prosecution, the following observation emerge:
FIR No. 548/2016 State v Heena Page No. 3 of 9
a. In the present case, no public witness has been examined on behalf of the prosecution in order to assuage its claim. The recovery is alleged to have been done from near the 908 bus stand.. Perusal of the site map shows that area from which the recovery was effected is across from is bustling with activity and has a market near it.
The place of recovery and apprehension of the accused is, therefore, clearly located in an area where public persons would be readily available. The said fact is clear from the crossexamination of PW1 wherein he has stated that the place of seizure/apprehension is a public place and public persons were present at the time when the accused was apprehended. Moreover, the recovery had been done at about 09:30 am and therefore public persons would have been present in the are from which liquor was allegedly recovered.
b. Moreover, while PW1 has stated in his examinationinchief that that IO had asked four or five persons to join the investigation but no public person joined the investigation. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. There is nothing on record to show that PW 3 and PW1 had served any notice u/s 160 Cr.P.C. on the public persons who were present at the time when the seizure was effected. The failure to make conscious and serious efforts to give adequate notice to public witnesses is amplified in view FIR No. 548/2016 State v Heena Page No. 4 of 9 of the statuary duty which is imposed u/s 100(4) Cr.P.C. to call upon two respectable persons of the locality to join the search. However, no such notice was served, thereby raising a doubt on the case of the prosecution.
c. Reliance in this regard is placed on paragraph 6 of the judgment in Pawan Kumar v. Delhi Administration 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... 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 Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. 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 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 explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of 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 I.O. 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."
d. Moreover, the arrival and departure entry in the present case has not been proved in the present case which is a statutory duty on the police officials. It would be prudent to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, FIR No. 548/2016 State v Heena Page No. 5 of 9 which reads 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, whether posted at the police station or elsewhere, with a statement of the State v. Om Prakash 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."
In the present case, the nonproof of departure and arrival entry assumes more significance in view of the fact that no public person was portrayed as a witness on behalf of the prosecution.
e. Another material consideration which ought to be considered in the present case is that as per the testimony of PW1 the seized property was sealed with the seal of the I.O. 'BS' and the same was handed over to W/Ct. Sarla. however, no handing over memo in this regard was prepared. The possibility of misuse of the seal in the present case cannot be ruled out since the same was not handed over to an independent witness nor was the same deposited in the Malkhana. Another thing which comes out from a considered reading of the testimonies of the witnesses adduced by the prosecution is that while PW2 has stated in her examinationin chief that the case property was sealed with the initials of BS, further the case property which was produced before the Court was seized with the seal having FIR No. 548/2016 State v Heena Page No. 6 of 9 initials SH. Furthermore, the case property was allegedly seized with a seal having initials 'DS' as per the testimony of PW3 in his chief. This contradiction is fatal for the case of the prosecution.
f. PW3 ASI Balwant Singh has deposed that he seized the liquor vide memo Ex. PW1/A, arrested the said accused and conducted her personal search. The said seizure memo was prepared after the FIR in the present case had been registered. However, the version of events as told by PW1 is that the seizure memo was prepared prior to the registration of FIR and his statement was recorded by the IO and the FIR was prepared subsequently. In such a case, the presence of number of FIR on seizure memo creates material contradiction between the version of incidents stated by the witnesses of the prosecution and creates a reasonable doubt in the version of the story sought to be proved by the prosecution that the seizure memo was bearing the FIR no. prior to its lodging. The same is fatal for the case of the prosecution and reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in State v. Om Prakash paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded.FIR No. 548/2016 State v Heena Page No. 7 of 9
The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
Similarly, in paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the SubInspector Narender Kumar Tyagi (PW7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
9. In view of the above observations and discussion, this Court is of the FIR No. 548/2016 State v Heena Page No. 8 of 9 considered opinion that the prosecution had failed to discharge its burden of proving its case against the accused. It is well settled that the burden which lies on the prosecution is to prove the case beyond all reasonable doubt and not merely on the preponderance of probabilities. The case of the prosecution must stand on its own two legs.
10. The accused Heena is hereby acquitted of the offence punishable under Section 33/38 of the Delhi Excise Act.
11. Case property be confiscated to State as per rules.
12. File be consigned to record room after due compliance.
Announced in open court (Pritu Raj)
On 13th March, 2020. Metropolitan Magistrate01
Rohini Courts, Delhi.
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