Delhi District Court
State vs . Raju on 6 August, 2015
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI.
FIR No.69/2011
PS Nihal Vihar
State Vs. Raju
Unique Case ID No.02401R0238142011
J U D G M E N T
(a) Sr. No. of the case 59/2/14
(b) Date of offences 10.03.2011
(c) Complainant HC Bane Singh, No.452W, PS Nihal Vihar, New Delhi.
(d) Accused person(s) Raju S/o Sh. Moti Ram R/o A - 525, Gali No.06, Agar
Nagar, Prem Nagar - III, New Delhi.
(e) Offence(s) Under Section 33 of Delhi Excise Act, 2009.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 24.05.2011
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 06.08.2015
The brief facts of the case are that :
1. The accused has been charge sheeted for committing offence punishable under Section 33 of Delhi Excise Act, 2009. The allegations against the accused are that on 10.03.2011 at about 07:55 pm in front of Delhi Jal Board, Kamruddin Nagar, FIR No.69/2011 Page No.1 of 12 New Delhi, accused found in possession of white colour sack containing 120 quarters of illicit liquor of 180 ml each of Raseela Santara Masaledar Desi Sharab without any license or permit in contravention of notification issued by Delhi Government. According to prosecution, accused thereby committed offence punishable under Section 33 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 offence punishable under Section 33 of Delhi Excise Act, 2009 vide order dated 17.09.2007 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE Main Witnesses(s)
3. The prosecution examined three witnesses to prove its case. PW1 HC Bane Singh has deposed that on 10.03.2011, he was posted at PS Nihal Vihar and on that day he alongwith Ct. Devender were on evening patrolling duty in area of Kamruddin Nagar and at about 7:50 pm, when they were present near office of Delhi Jal Board, they saw one person coming from Najafgarh side and going towards Kamruddin Nagar having a plastic sack on his right shoulder. After seeing police party, he got afraid and started going back. On suspicion, they chased and FIR No.69/2011 Page No.2 of 12 apprehended him. When they checked the sack, they found quarter bottles of illicit liquor in the same. Accused disclosed his name as Raju S/o Sh. Moti Ram. He informed the same at PS on which IO HC Yashpal Singh reached at the spot to whom he handed over accused alongwith recovered liquor. IO recorded his statement Ex.PW1/A. IO requested 4 - 5 public persons to join investigation, but, none of them agreed and left the spot without disclosing their names and addresses citing their own genuine problems. IO checked the sack and found 120 quarter bottles of Raseela Santra Desi Sharab for sale in Haryana only. Two quarter bottles were taken out as sample and rest were put back in the same sack. All samples and sack were sealed with the seal of 'VPS'. Seal after use was handed over to Ct. Devender. IO prepared Excise Form M - 29 at spot. IO seized case property vide memo Ex.PW1/B and prepared Rukka on basis of his statement. Ct. Devender took Rukka, went to PS for registration of case and came back at the spot alongwith copy of FIR and original Rukka and handed over the same to IO. IO arrested accused vide memo Ex.PW1/C, conducted his personal search vide memo Ex.PW1/D and prepared site plan at his instance. Thereafter, accused was got medically examined at SGM Hospital and was lodged in lock up of PS Nihal Vihar. Case property was deposited in malkhana. He correctly identified accused and case property Ex.P1 (Collectively). PW1 was examined, crossexamined and was discharged.
FIR No.69/2011 Page No.3 of 12
4. PW3 IO ASI Yashpal Singh has deposed that on 10.03.2011, he was posted at PS Nihal Vihar and on that day, he received D.D.No.34A regarding apprehension of person alongwith illicit liquor in front of Delhi Jal Board, Kamruddin Nagar, Delhi. He went to the spot and found HC Bane Singh and Ct. Devender alongwith accused there. HC Bane Singh produced one sack and accused. He requested 3 - 4 passersby to join investigation, but none of the them agreed and they left the spot without disclosing their names and addresses. Sack was checked and found containing 120 quarter bottles of liquor make of 'Raseela Santra' for sale in Haryana only. He took out two quarter bottles as sample. Form M - 29 filled on the spot. Remaining quarter bottles kept in the same plastic sack. Sack, samples bottles and Form M - 29 were sealed with the seal of 'YPS'. Seal was handed over to Ct. Devender after use. Sack was taken into possession vide memo Ex.PW1/B. He recorded statement of HC Banny Singh as Ex.PW1/A, prepared Rukka Ex.PW3/A and handed over the same to Ct. Devender for registration of FIR. He went to PS alongwith copy of Rukka and after registration of FIR, he came back at the spot and handed over copy of FIR and original Rukka to him. He prepared site plan at instance of HC Bane Singh vide Ex.PW3/B. PW3 arrested accused vide memo Ex.PW1/C and conducted his personal search vide memo Ex.PW1/D. He recorded statements of witnesses at the spot. After completion of proceedings, they returned to PS and case FIR No.69/2011 Page No.4 of 12 property was deposited in police malkhana. On 01.04.2011, two sample bottles sealed with the seal of 'YPS' were handed over Ct. Anil vide RC No.57/20/11 for depositing the same in Excise Office, ITO. After depositing the same, he collected copy of receipt and handed over the same to MHC(M). He recorded statement of Ct. Anil. He collected result from excise office vide Ex.PW3/C and after completion of investigation, prepared challan and filed before Court. He correctly identified accused and case property Ex.P1 (Collectively) in the Court. PW3 was examined, crossexamined and was discharged.
Formal Witness(es)
5. PW2 SI Sukhbir Singh has proved and exhibited formal FIR Ex.PW2/A and endorsement on Rukka Ex.PW2/B. PW2 was examined, crossexamined and was discharged.
6. On 29.09.2015, 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.69/2011 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.69/2011 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 joined in investigation though available. IO PW3 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 non joining 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.69/2011 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 FIR No.69/2011 Page No.8 of 12 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 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 FIR No.69/2011 Page No.9 of 12 investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases 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 witness, FIR was registered after seizure of illicit liquor. However, seizure memo bears the FIR number. At the time of seizure, FIR number was not FIR No.69/2011 Page No.10 of 12 available and therefore, FIR number could not have figured on seizure memo. The existence of FIR number on seizure memo suggests that seizure memo was prepared after registration of FIR and is therefore antetimed. This erodes the credibility of witnesses who have stated that seizure memo was 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 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, the FIR No.69/2011 Page No.11 of 12 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 reasonable doubt. Accused Raju is accordingly acquitted for offence punishable under Section 33 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 August 06, 2015.
(HARVINDER SINGH) M.M.03/THC (West), Delhi/06.08.2015 FIR No.69/2011 Page No.12 of 12