Delhi District Court
State vs . Rajesh & Anr on 2 July, 2012
FIR No. 190/06
PS Narela
U/s. 78, 61 of Punjab Excise Act, 1914
State Vs. Rajesh & anr
IN THE COURT OF SH. DEEPAK WASON:
METROPOLITAN MAGISTRATE:ROHINI COURTS:DELHI
FIR No. 190/06
PS Narela
U/s. 78, 61 of Punjab Excise Act, 1914
State Vs. Rajesh & anr
Date of Institution of case:07.02.07
Date of Judgment reserved:02.07.12
Date of which Judgment pronounced:02.07.12
JUDGMENT
Unique ID no. :02404R0825702007
Date of commission of offence :19.03.06
Name of the complainant :ASI Charan Singh
PS Narela, Delhi
Name and address of accused 1.Rajesh
S/o Sh. Dharamvir Singh
R/o H.no. 428, Gali no. 10-A,
Swatantar Nagar, Narela, Delhi.
2.Dharampal@Raju
S/o Sh. Shankar Dass,
R/o H.no. 325, Gali no. 3 A,
Swatantar Nagar, Delhi.
Offence complained of :78, 61/1/14 Excise Act
Plea of accused :Pleaded not guilty
Date of order :02.07.12
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under: Accused persons namely Rajesh, S/o Sh. Dharamvir Singh and Dharampal@Raju, S/o Sh. Shankar Dass have been sent up for the trial for the offence U/s. 78, 61 of Punjab Excise Act for the reason that on 19.03.06 at about 7:10 a.m at Gali no. 1, near Railway Line, Swatantar Nagar, Narela, Delhi, they were found in possession of 9 petties of illicit liquor containing 12 bottles of Murthal no. 1 in each petti in an ambassador bearing registration no. HR-01L-5275 without any permit or licence and they both thereby committed the offence Page 1 of 9 Contd/-..... FIR No. 190/06 PS Narela U/s. 78, 61 of Punjab Excise Act, 1914 State Vs. Rajesh & anr punishable U/s. 78, 61 of Punjab Excise Act, 1914 and on the basis of which FIR no. 190/06 was registered at PS Narela.
2. After investigation, chargesheet was filed against the accused persons & after supplying the copies to them in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C), a charge U/s. 78, 61 of Punjab Excise Act was framed against the accused persons on 18.08.08, to which accused persons pleaded not guilty and claimed trial.
3. In support of its version, the prosecution has examined all the 6 witnesses as mentioned in the list of witnesses.
4. PW1 is Retd. Head Constable Harkesh, S/o Lt. Sh. Chet Ram, R/o Village Bajit Pur, Delhi. He is the Duty Officer and has proved the copy of FIR as Ex. PW1/A and endorsement on the rukka as Ex. PW1/B.
5. PW2 is Head Constable Suresh, no. 188, North, PS Kotwali, Delhi. He has deposed that on 28.03.06, he collected the sample duly sealed with CS and Excise form and deposited the same at Excise Laboratory and handed over the receipt to MHC(M).
6. PW3 is Sub-Inspector Charan Singh, no. 522 D, VIP Security, Vinay Marg, Delhi. He is the witness of initial recovery and has deposed about the investigation conducted by him.
Page 2 of 9 Contd/-..... FIR No. 190/06PS Narela U/s. 78, 61 of Punjab Excise Act, 1914 State Vs. Rajesh & anr
7. PW4 is Asstt. Sub-Inspector Ved Prakash, no. 421 OD, Special Staff, Outer District, Delhi. He is the second IO of the case and has deposed regarding the investigation conducted by him.
8. PW5 is Asstt. Sub-Inspector Jogender Singh, no. 479 PTC, Jharoda Kalan, Delhi. He is the MHC(M) and has proved the entry made at serial no. 2595/06 in register no. 19 as Ex. PW5/A.
9. PW6 is Head Constable Raj Kumar, no. 135, North PS Burari, Delhi. He has accompanied the PW3 ASI Charan Singh and has deposed on the same lines of ASI Charan Singh.
10. After examining all the witnesses, prosecution evidence was closed vide order dated 28.06.12.
11.Subsequent to the recording of statement of witnesses, statement of accused persons were recorded and all the incriminating evidence came on record were put to the accused persons, in which they have submitted that they are innocent and have been falsely implicated in the present case. They have further submitted that they do not wish to lead any evidence. Thereafter, the matter was posted for final arguments.
12. I have heard the arguments of Ld. APP for the state, Ld. Page 3 of 9 Contd/-..... FIR No. 190/06 PS Narela U/s. 78, 61 of Punjab Excise Act, 1914 State Vs. Rajesh & anr counsel for the accused persons and have gone through the record.
13. In the present matter, accused persons have been charged U/s. 78, 61 of Punjab Excise Act and to convict the accused persons, the prosecution has to prove that accused persons were found in possession of 9 petties of illicit liquor containing 12 bottles of Murthal no. 1 in each peti quarter bottles of illicit liquor in an ambassador bearing registration no. HR-01L-5275.
14. Now, coming to the deposition of PW3. He is the IO of the case and has deposed that on 19.03.06, on receiving DD no. 35 A, he alongwith Ct. Raj Kumar reached at the spot i.e Gali no. 1, near Railway Line, Swatantar Nagar, Narela, Delhi, where they saw one old ambassador car bearing no. HR-01L-5275 in stationed condition. He has further deposed that one person namely Dharampal was sitting on the driver seat and other person namely Rajesh was taking out the petti of illicit liquor upon which, they apprehended both the persons and checked the said car and found one box containing 8 petties at the back seat. He has further deposed that he requested 3/4 passers by to join the investigation but none agreed. He has further deposed that he checked the said petties and found containing 12 bottles of Murthal no. 1 in each petti, out of which, he separated one bottles as a sample and put the remaining case property into one plastic katta, which was brought from some shop and both sample Page 4 of 9 Contd/-..... FIR No. 190/06 PS Narela U/s. 78, 61 of Punjab Excise Act, 1914 State Vs. Rajesh & anr and case property were sealed with the seal of CS, filled form M-29 and seal after use was handed over to Ct. Raj Kumar. He has further deposed that he seized both car and case property, prepared rukka and handed over the same to Ct. Raj Kumar for registration of the case and after registration of the case, he came back at the spot alongwith HC Ved Prakash, to whom he handed over the accused persons, case property and relevant documents. He has further deposed that HC Ved Prakash prepared the site plan at his instance and IO recorded his statement and he left the spot. He was cross examined by Ld. defence counsel.
15. Further, PW4 has deposed that on 19.03.06, Ct. Raj Kumar handed over to him copy of FIR no. 190/06 and original rukka for further investigation of the present case and he alongwith Ct. Raj Kumar reached at the spot i.e Gali no. 1, Swatantar Nagar, near Railway Phatak, where he met ASI Charan Singh, who handed over to him accused persons namely Dharampal and Rajesh and one ambassador car bearing registration no. HR091-L-5275 and five plastic kattas and one sample duly sealed with CS and relevant documents. He has further deposed that he prepared the site plan at the instance of ASI Charan Singh and ASI Charan Singh left the spot. He has further deposed that he arrested both the accused persons, conducted their personal search and on producing surety, accused persons were released on bail. He has further deposed that he brought the case property and car to PS and deposited in the malkhana. He has further deposed that on 28.03.06, he sent the above said samples alongwith Excise Page 5 of 9 Contd/-..... FIR No. 190/06 PS Narela U/s. 78, 61 of Punjab Excise Act, 1914 State Vs. Rajesh & anr form to Excise Laboratory through Ct. Suresh Kumar vide RC no. 57/21. He has further deposed that the above said car was released on superdari to accused Rajesh Kumar. He has further deposed that later on, he received the result and after completion of the investigation, he prepared the challan and filed the same in the court through concered SHO for judicial verdict. He was cross examined by Ld. defence counsel.
16. In the present case, the deposition of PW3 shows that he requested 3/4 passers by to join the proceedings but none agreed. In these circumstances, like the present one, if public person would have refused to assist the member of police party, they could have served the said public witness with a notice in writing to join police proceedings but perusal of the record shows that nothing sort of this was done in the present case.
17. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"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 Page 6 of 9 Contd/-..... FIR No. 190/06 PS Narela U/s. 78, 61 of Punjab Excise Act, 1914 State Vs. Rajesh & anr legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
18. 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 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 to 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 Page 7 of 9 Contd/-..... FIR No. 190/06 PS Narela U/s. 78, 61 of Punjab Excise Act, 1914 State Vs. Rajesh & anr proceeded against them under the relevant provision 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".
18.A Hence, in these circumstances, it creates doubt in the story of prosecution.
19. Further, no efforts were made to hand over the seal after use in the presence of independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out. Further, when the case property i.e 5 kattas containing 9 petties of illicit liquor were produced for the first time in the court, one katta was containing empty bottles and the same was without seal. Hence, the possibility of tampering the case property cannot be ruled out and in such cases, benefit of doubt has to be given to the accused persons. Further, as per the examination of PW3, plastic kattas were brought from some shop. It is surprising fact that why the shopkeeper was not joined in the investigation. Therefore, the court is of the view that the prosecution has failed to prove the guilt of the accused persons, beyond reasonable doubt. Hence, in these circumstances, the story of prosecution becomes doubtful.
20. In view of the above said discussion, I am of the considered view that the prosecution has miserably failed to prove the guilt of the accused persons beyond reasonable doubt.
Page 8 of 9 Contd/-..... FIR No. 190/06PS Narela U/s. 78, 61 of Punjab Excise Act, 1914 State Vs. Rajesh & anr Accordingly, accused Rajesh and Dharampal@Raju are acquitted from the charges U/s. 78, 61 of Punjab Excise Act, 1914.
21. Bail bond of accused persons are extended in terms of Section 437 A of Cr.P.C.
22. File be consigned to Record Room.
(Deepak Wason) Metropolitan Magistrate Rohini Court,Delhi ANNOUNCED IN THE OPEN COURT TODAY i.e on 02nd July, 2012 Page 9 of 9 Contd/-..... FIR No. 190/06 PS Narela U/s. 78, 61 of Punjab Excise Act, 1914 State Vs. Rajesh & anr FIR No. 190/06 PS Narela U/s. 78, 61 of Punjab Excise Act, 1914 State Vs. Rajesh & anr 02.07.12 Present : Ld. substitute APP for the State.
Counsel for accused person with both accused namely Rajesh and Dharampal@Raju on bail.
I have heard the arguments and perused the record. Vide separate judgment dictated to the steno in the open court, accused persons are acquitted of the said offence U/s. 78, 61 of Punjab Excise Act, 1914.
At this stage, Rajesh and Dharampal@Raju are directed to furnish fresh bail bond in the sum of Rs. 8,000/- each with one surety in the like amount in terms of Section 437 A of Cr.P.C .
At the request of Rajesh and Dharampal@Raju, their previous bail bonds are extended in terms of Section 437 A of Cr.P.C.
File be consigned to Record Room, after due compliance.
(Deepak Wason) MM (Outer)-01/Rohini 02.07.12 Page 10 of 9 Contd/-.....