Delhi District Court
State vs . Dharmender on 22 September, 2014
IN THE COURT OF SHRI DEEPAK DABAS
ADDL. CHIEF METROPOLITAN MAGISTRATE, WEST
TIS HAZARI COURTS, DELHI
FIR No. 225/2007
ID 02401R0232072008
U/S. 61 of Punjab Excise Act
PS Anand Parbat
State Vs. Dharmender
JUDGMENT
1. Sr. No of case 169/AP/13
2. Date of commission of offence 24.7.2007
3. Name of complainant Ct. Ghasi Ram
4. Name of accused Dharmender
s/o. Sh. Fulla Ram
r/o. H No. CN665, Taliwala Dera
Anand Parbat, Delhi.
5. Offence complained of U/S. 61 of Punjab Excise Act
6. Plea of accused Pleaded not guilty
7. Final order Acquitted
8. Date of such order 22.9.2014
1). FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION :
Accused has been sent for trial on the allegations that on 24.7.2007 at about 8.20 PM near Kundan Dharamkanta, Gali NO 10, Indl Area, Anand Parbat, Delhi he was found in possession of a Can containing 9 State Vs. Dharmender; FIR No 225/2007; PS Anand Parbat 1/ bottles of liquor without any permit or licence.
2).
MISCELLANEOUS PROCEEDINGS : After completion of the investigation, chargesheet was filed by the police against accused. Cognizance of the offence was taken and the accused was summoned. Copy of the chargesheet was supplied to the accused and the matter was adjourned for arguments on charge.
3).
CHARGE / NOTICE FRAMED AGAINST THE ACCUSED : Charge for offence punishable u/s. 61/1/14 of Punjab Excise Act was framed against the accused, to which he pleaded not guilty and claimed trial.
4).
EVIDENCE LED BY THE PROSECUTION : In order to prove its case, prosecution has examined 5 witnesses. The testimony of the said witnesses in brief is as under :
(a) PW1 i.e. HC Prem Singh was the duty officer. He deposed that on 24.7.2007 he had registered the FIR i.e. Ex. PW1/A.
(b) PW2 i.e. HC Veer Pal Singh was was the MHCm. He deposed that on 24.7.2007, HC Satender Narain had deposited one Can, sample bottle alongwith Form M29 in the malkhana and entry to this effect was State Vs. Dharmender; FIR No 225/2007; PS Anand Parbat 2/ made by him. He further stated that on 3.8.2007 the sample was sent through Ct. Bahadur to the excise lab.
(c) PW3 was Sh. Ravi Karan i.e. chemical analyst. He had proved the excise result Ex. PW3/A.
(d) PW4 i.e. HC Bahadur Singh was the sample carrier. He deposed that on 3.8.2007 he had deposited one sample bottle duly sealed with seal of SN in the excise lab and thereafter handed over the receipt to the MHCm.
(e) PW5 i.e. HC Satyendra was the investigating officer. He deposed that on 24.7.2007 on receipt of DD NO 50B he reached the spot i.e. Kundan Dharam Kanta where the complainant i.e. Ct. Ghasi Ram had produced the accused alongwith case property to him. He further stated that he measured the liquor in the Can which was found to be 9 bottles and out of it one bottle liquor was taken out as sample and the case property was seized vide memo Ex. PW5/D. He further stated that he recorded statement of complainant and got the case registered through Ct. Ghasi Ram and thereafter arrested the accused and deposited the case property in the malkhana. He further stated that State Vs. Dharmender; FIR No 225/2007; PS Anand Parbat 3/ after completion of the investigation he prepared the challan and filed the same in the court. He identified the accused as well as the case property in the court. It is pertinent to mention that when the case property i.e. Can was produced in the court, it was found empty and there was no liquor in it.
5).
STATEMENT OF ACCUSED : Statement of accused was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to the accused. In the said statement under Section 313 Cr.P.C, accused has stated that he was falsely implicated in this case and nothing was recovered from his possession. Accused had not led any evidence in his defence.
6).
ARGUMENTS OF LD. APP FOR STATE AND LD. DEFENCE COUNSEL Ld APP for the State had argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the State had also argued that the factum of recovery of aforesaid liquor from the accused has been proved beyond reasonable doubt by the testimony of PWs and therefore, accused is liable to be convicted in this case.
State Vs. Dharmender; FIR No 225/2007; PS Anand Parbat 4/ On the other hand, Ld defence counsel had argued that no independent/ public witness was joined in the investigation of this case and the factum of recovery is doubtful. Ld defence counsel had also argued that the prosecution has miserably failed to prove its case against the accused and therefore, the accused is entitled of being acquitted in this case.
7).
REASONS FOR THE DECISION :
(a) During examination of PW5, when the case property i.e. Can was produced in the court, it was found empty and there was no liquor in it. No explanation has come from the prosecution about this. The aforesaid lacuna casts a doubt upon the prosecution version.
(b) The place from where the accused was apprehended was a very busy place/ industrial area but inspite of it, IO of the case failed to join public witnesses in the investigation of the case. The time of apprehension of the accused was 8.20 PM. PW5 in his examination in chief had stated that he had requested public persons to join the investigation but none agreed. In his cross examination also PW5 had stated that the spot is surrounded with shops and residential houses. This fact shows that public persons were available but no sincere State Vs. Dharmender; FIR No 225/2007; PS Anand Parbat 5/ efforts were made by IO to join public witnesses. In this regard reference can be made to a case titled as Anoop Joshi vs. State reported as 1992(2) Crimes 550 wherein the Hon'ble High Court of Delhi observed as under : "18. It is repeatedly laid down by this court in such cases it should be shown by police that sincere efforts have been made to join independent witnesses. In the present case, it is in evidence 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 rigors of laws while declining to perform their legal duty to assist the police in investigation as a State Vs. Dharmender; FIR No 225/2007; PS Anand Parbat 6/ citizen, which is an offence under the IPC".
Reference can also be made to a case titled as Roop Chand vs. State of Haryana reported as 1989(2)R.C.R.(Criminal
504) wherein the Hon'ble Punjab & Haryana High Court has held as under:
"3. I have heard the Ld. Counsel for the parties and have 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 do so on the ground that their joining will result into enmity between them and the petitioner."
In the aforesaid case it was further observed that:
State Vs. Dharmender; FIR No 225/2007; PS Anand Parbat 7/ "4. It is well settled principal of 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 State Vs. Dharmender; FIR No 225/2007; PS Anand Parbat 8/ 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 nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful".
(c) It is also pertinent to mention that the prosecution has failed to produce any documentary evidence or the DD entry regarding departure of complainant from the police station. This fact also creates a doubt in the prosecution version.
(d) It is also pertinent to mention that as per prosecution version, seal after use was handed over by the PW5 to complainant . Both of them are police officials. Seal was not handed over to any independent witness. In such a situation the possibility of tampering with the case property cannot be ruled out. The said suspicion is further strengthened by the fact that during the examination of PW5 complete State Vs. Dharmender; FIR No 225/2007; PS Anand Parbat 9/ case property was not produced in the court as the Can was empty.
(e) As per testimony of PW5 the seizure memo of the liquor is Ex.
PW5/D which was prepared prior to the registration of the present case. However, a perusal of Ex. PW5/D shows that the FIR Number as well as other particulars of the present case are mentioned on it. No explanation has come from the prosecution as to how the FIR Number as well as other particulars of the present case surfaced upon said document which was prepared prior to the registration of the present case. This fact also casts a doubt upon the prosecution version.
8).
CONCLUSION : Keeping in view the facts and circumstances and the discussion made hereinabove, I am of considered view that prosecution has failed to prove its case against accused beyond reasonable doubt. Hence, accused is hereby acquitted in present case.
Judgment dictated and DEEPAK DABAS pronounced in the open Court ACMM:WEST DISTT:DELHI. (This judgment consists of 10 pages) State Vs. Dharmender; FIR No 225/2007; PS Anand Parbat 10/