Delhi District Court
State vs . Vijay on 28 July, 2011
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 470/02
P.S. Malviya Nagar
U/s 61 (1) (a) Excise Act
State Vs. VIJAY
JUDGMENT :
a. Sl. No. of the case : 9/3
b. Date of Institution : 15.01.2003
c. Date of Commission of Offence : 28.05.2002
d. Name of the complainant : Ct. Surinder, no. 3182/SD
No. 115/SD
e. Name of the accused and his : Vijay @ Papu
parentage and address S/o Sh. Om Prakash
R/o 7/221, Dakshin Puri,
New Delhi.
f. Offence complained of : U/s 61 (1) (a) Excise Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 28.07.2011
i. Final Order : Acquittal
j. Date of such order : 28.07.2011
1. The accused in this case was sent up for trial for the commission of offence U/s 61/1/14 Excise Act.
FIR no. 470/02 Page 1 of 9 PS Malviya Nagar
2. The facts in brief are that on 28.05.2002 at about 8.45 pm while Ct. Surender was on patrolling duty reached at Lado Sarai, DDA Flats road he saw one person coming from Aurobindo Marg side who was carrying plastic cane on his shoulder and he stopped him and on checking the can was found smelling liquor so he informed PP on which SI Dharampal along with Ct. Hawa Singh reached at the spot and prepared tehrir and present case FIR no. 470/02 was got registered in PS Malviya Nagar. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing the other formal investigation, the challan was presented before the court for trial u/s. 61/1/14 Excise Act against the accused.
3. As a prima facie case was made out against the accused, charge was framed against the accused on 12.06.2003 U/s. 61 (1) (a) Excise Act to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has produced and examined five witnesses i.e HCt. Ranvir as PW1, Ct. Ram Narayan as PW2, Ct. Surender as PW3, Ct. Hawa Singh as PW4 and Retd. SI Dharam Pal as PW5.
5. PW1 HCt. Ranvir has testified that on 28.05.2005 on receipt of rukka Mark X through Ct. Hawa Singh he recorded present case FIR Ex.PW1/A and endorsed rukka vide Mark A. FIR no. 470/02 Page 2 of 9 PS Malviya Nagar Accused did not prefer to cross examine this witness.
6. PW2 Ct. Ram Narayan has testified that on 17.06.2002 he took the specimen i.e. one quarter bottle duly sealed with the seal of DP vide RC no. 78/21 and deposited the same in Excise Lab at ITO, New Delhi and after depositing it he handed over the receipt to MHC(M).
Accused did not prefer to cross examine this witness.
7. PW3 Ct. Surinder has testified that on 28.05.2002 he was on patrolling duty and going through DDA Flats road and at about 8.45 pm he saw one person with one plastic cane on his right shoulder coming from side of Aurobindo Marg. He stopped him and on enquiry accused told that cane contains oil but on checking it found smelling liquor so he informed the PP on which SI Dharampal came at the spot to whom he handed over the accused with the cane who recorded his statement Ex.PW3/A and on measuring the cane was found containing 26 bottles of 750 ml each, one quarter bottle was taken out as sample and remaining poured back into the cane. Cane and quarter bottles sealed separately with seal of DP and after use seal was handed over to him. IO filled form M29 at the spot and IO also took the case property in possession vide memo Ex.PW3/B. IO prepared rukka and handed over the same to Ct. Hawa Singh for registration of the case. IO arrested the accused and conducted his personal search vide memo Ex.PW3/C and D. Cane is produced before the court which witness identified as Ex.P1.
FIR no. 470/02 Page 3 of 9 PS Malviya Nagar
8. PW4 Ct. Hawa Singh has testified that on 28.5.02 he along with SI Dharampal was on patrolling duty and DD no. 29 was received by SI Dharampal at PVR Saket and thereafter they reached at Lado Sarai road where Ct. Surender met them and handed over accused Vijay along with plastic cane of white color filled with liquor. IO recorded statement of Ct. Surender. Liquor was measured and 26 bottles were found in the cane. One quarter bottle was taken out as sample therefore case property was sealed with the seal by the IO and seized vide memo Ex.PW3/B. IO prepared rukka and got the case FIR registered through him. Accused was arrested and his personal search was conducted vide memos Ex.PW3/C and D. IO recorded his statement. One plastic cane duly sealed with the seal of court produced which the witness identified as Ex.P1.
During cross examination PW4 has testified that he received information at 8.45 pm and on the spot the said liquor from the cane was put into a bucket which was brought from someone and thereafter contents of cane were refilled in the cane and one sampleof liquor was taken out from the cane in a quarter bottle at PP. He further testified that he cannot say from where the said empty quarter bottle was brought. He denied the suggestion that he did not went to the spot and signed on his statement and on exhibits at PS on the dotted line of the IO.
9. PW5 Retd. SI Dharam Pal has testified that on 28.5.2002 he along with Ct. Hawa Singh was on patrolling duty and present at PVR Saket where Ct. Ramesh met him and handed over DD no.29. Thereafter he along with Ct. Hawa Singh FIR no. 470/02 Page 4 of 9 PS Malviya Nagar recahed at DDA Flats, Lado Sarai where Ct. Surender met them and handed over accused Vijay along with plastic cane of white color. He recorded statement of Ct. Surender Ex.PW2/A. Liquor of recovered cane was poured into a bucket and total 26 bottles were found in the cane. One quarter bottle was taken out as sample. Form M29 was filled up at the spot and remaining liquor was poured in the said plastic cane, thereafter case property, sample and form were sealed with the seal of DP and seal after use was handed over to Ct. Surender. Case property was seized vide memo Ex.PW3/B. He further testified that he prepared rukka Ex.PW5/A and got the case FIR registered through Ct. Hawa Singh. He also prepared the site plan at the instance of Ct. Surender Ex.PW5/B. Accused was arrested and his personal search was conducted vide memos Ex.PW3/C and D. Later on sample was sent to Excise Lab, ITO through Ct. whose name he does not remember and he collected and attached the report of chemical examiner E.xPW5/C. One plastic cane produced in the court which the witness identified as Ex.P1.
During cross examination PW4 has testified that he received intimation at about 9.00 pm and he also admits that DD no. 29 is not on record or that they had not made any entry regarding carrying of bucket and bottle with them and denied the suggestion that empty bottle was taken from PS/PP or that all the documents were prepared in the PP.
10. PW6 Brijender Singh has testified that on 25.7.02 he had given report which is Ex.PW5/C on examination of sample as per which same was country made FIR no. 470/02 Page 5 of 9 PS Malviya Nagar liquor.
Accused did not prefer to cross examine this witness.
11. After closing of prosecution evidence, statement of accused was recorded U/s 313 r/w. 281 of Code of Criminal Procedure Code,1973. In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case.
12. I have heard the Ld. APP for the State and Ld. counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
13. In this case, the prosecution is required to establish beyond reasonable doubt that the accused was in possession illicit liquor without valid license or permit. All the witnesses produced by the prosecution are police officials. There are a number of contradictions in their evidence. Material witnesses of prosecution are PW3, PW4 and PW5 as recovery of illicit liquor was effected in presence PW3 and PW4 and PW5/IO came at the spot after receiving information regarding recovery of illicit liquor from accused. PW3 and PW5 both have deposed that the case property was sealed with the seal of DP but PW4 has only deposed that case property was sealed with the seal by the IO. As per prosecution story, both PW4 and PW5 are together on patrolling duty. PW5 /IO stated that at PVR Saket, Ct. Ramesh handed over DD no. FIR no. 470/02 Page 6 of 9 PS Malviya Nagar 29 to him but PW4 has simply deposed that said DD was received by the IO/PW5 but from whom, he has not mentioned. Further PW5 testified during his examination that he prepared site plan Ex.PW5/B at the instance of PW3 but PW3 has not deposed a single word regarding site plan. Again, PW3 and PW4 both have deposed that on measuring the can was found containing 26 bottles of 750 ml each and one quarter bottle was taken out as sample, but from where the bottle was arranged or how the liquor was got measured is not mentioned by them, however IO/PW5 has testified that recovered cane was put into a bucket and total 26 bottles were found in said cane but again he has not deposed from where he arranged the bottle and bucket and during his cross examination he denied the suggestion that empty bottle was taken from the PS/PP, interestingly PW4 who accompanied the IO/PW5 in all proceedings testified during his cross examination that one sample of liquor was taken out from the cane in a quarter bottle at PP but according to other PWs all the proceedings were done at the spot. Thus, these contradictory statements of PWs are not reliable and cannot be considered for the purpose of conviction of the accused.
14. Further, no public witness has been associated with the investigation. No independent witness has been joined at the time of the arrest of the accused and recovery of illicit liquor. The witnesses to the recovery being police officials, such recovery does not inspire confidence. Similar view has been expressed by the Supreme Court in Sanspal Singh v. State of Delhi, (1998) 2 SCC 371 and the Delhi High Court in Staila Sayyed v. State, (Delhi) 2008(4) JCC 2840. FIR no. 470/02 Page 7 of 9 PS Malviya Nagar
15. Further, it needs to be noted that the seizure memo and pesonal search memo bears the number of FIR. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery 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 given by the aforesaid witnesses and creates a good deal of doubt about recovery in the manner alleged by the prosecution. Reliance may be had to the decision of the Delhi High Court in Lalji V. State, (Delhi) 2000(1) R.C.R. (Criminal) 622 may be referred to.
16. Again, there is nothing on record to prove that the seal with which the recovered can containing the illicit liquor or sample bottle was sealed was handed over to any independent witnesses after use. PW1 during his cross examination also testified that he does not know whom the seal TR with which the can and sample bottle of liquor was sealed belonged. In such circumstances possibility of tampering with contents of sealed can/sample cannot be ruled out. It was very essential for prosecution to have established that sealed bag/parcel was not tampered with. In this respect the decision of the Delhi High Court in Safiullah v. State (Delhi Administration), (Delhi) 1993 (1) R.C.R. (Criminal) 622 may be referred to. FIR no. 470/02 Page 8 of 9 PS Malviya Nagar
17. Moreover, no DD entry in respect of Ct. SurenderPW3, Ct. Hawa SinghPW4, and Retd. SI Dharam PalPW5 is proved on record to establish that they were actually present in the area at the relevant time in connection with their duty in the relevant area. Thus the presence of these witnesses at the alleged time itself is rendered doubtful. This view has been expressed by the Delhi High Court in Shekhar v. State of NCT of Delhi, (Delhi) (D.B.) 2008 Cri.L.J. 3258.
18. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
19. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Vijay is acquitted for the offence punishable U/s. 61 (1) (a) of Excise Act for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 28.07.2011 Metropolitan Magistrate
South District/New Delhi
FIR no. 470/02 Page 9 of 9
PS Malviya Nagar