Delhi District Court
State vs . on 27 October, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05, SOUTH EAST DISTRICT
SAKET DISTRICT COURTS, NEW DELHI
STATE
VS.
RAJU @ DHARAMBIR
FIR No. : 284/2012
U/s. 33 Delhi Excise Act
PS : Sarita Vihar
A. CIS No. : 94299/2016
B. Date of Institution : 18.01.2013
C. Date of Commission of Offence : 17.09.2012
D. Name of the complainant : Ct. Satpal
E. Name of the Accused : Raju @ Dharambir
S/o Uday Ram
R/o H. No.A-310, Aali
Vihar, New Delhi
F. Offences complained of : U/s 33 Delhi Excise Act
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not reserved.
I. Final order : Acquitted.
J. Date of such order : 27.10.2018
FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 1 of 13
JUDGMENT
Brief Facts :-
1. It is the case of the prosecution that on 17.09.2012 at about 05:45 PM at Room No. 4, Virender Pradhan Aali ka Makan near MCD School, Aali Vihar, New Delhi within the jurisdiction of PS Sarita Vihar, accused was found in possession of 7 bags of illicit liquor (mentioned in seizure memo Mark A) in violation of Rule 20 of Delhi Excise Rules 2010, and thereby accused committed an offence punishable u/s 33 Delhi Excise Act and within the cognizance of this court. On written complaint of Ct. Satpal, the present FIR was recorded at PS Sarita Vihar. Matter was investigated and chargesheet was filed.
2. Cognizance was taken by predecessor court. The accused was supplied with the copy of chargesheet and documents in compliance of section 207 CrPC. Thereafter, the matter was listed for arguments on charge.
3. After scrutiny of documents, parties were heard on charge.
Prima facie an offence punishable U/s 33 of Delhi Excise Act was found to made out against the accused person. Notice U/s 251 FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 2 of 13 CrPC was framed and explained to accused to which he pleaded not guilty and claimed trial.
4. To bring home the guilt of accused, prosecution examined five witnesses. Vide separate statement recorded u/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, accused had admitted the genuineness of Chemical Examiner Report No.15700 to 15706 dated 01.10.2012 as Ex.C1 and factum of recording of RC No.116/21/21 dated 24.09.2012, PS-Sarita Vihar, Ex-C-1. Thereafter, PE was closed and matter was listed for examination of accused u/s 313 Cr.P.C.
5. In his statement U/s 313 Cr.PC, accused denied the prosecution case and pleaded innocence. He stated that he was innocent and Police has falsely implicated him in the present case. However, the accused did not produce any independent witness in his defence. Accordingly, matter was listed for final arguments.
6. I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file very carefully. The argument of Ld. APP is that there is enough evidence on record to prove the case against the accused. Ld. Defence counsel on FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 3 of 13 the other hand has argued that the accused has been wrongly associated with the offence in question and as such the accused is entitled to acquittal in the present case.
7. I have perused the case file very carefully and have duly considered the respective arguments.
Relevant Law:-
8. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 4 of 13 Law relating to requirement of independent witness
9. Further Sec. 100 Clause 4 & 5 CrPC talk about requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Regarding the non-joining of independent witnesses it has been stated in judgment titled as Appabhai v. State of Gujrat, 1988 Supp 241 : AIR 1988 SC 696 that "11...... Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One can not ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 5 of 13 prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. This has also been relied upon in judgment titled as Kathi Bharat Vasjur v. State of Gujarat in AIR 2012 SC 2163 (Para 22).
Minor contradictions do not effect the credibility of the prosecution case.
10. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Overall context of the case is to be seen.
11. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 6 of 13 find out proof beyond reasonable doubt.
Evidence on record:
12. PW- 1 HC Suresh Chandra is the IO of the case. He has deposed that on 17.09.12, he was posted as HC at PS Sarita Vihar. On that day, upon receipt of DD No. 41A which is Ex. PW1/A, he reached the spot i.e. Quarter No. 4, Pradhan Virender ka Makan, Near MCD School, Aali Vihar, Delhi where Ct. Satpal & Ct. Mukesh met him. They informed him that seven white plastic kattas containing country-made illicit liquor had been recovered from Quarter no. 4, Pradhan Ka Makan, Aali Vihar. All the kattas were marked 1 to 7. Thereafter, he opened all the seven white plastic kattas in the presence of aforesaid police witnesses. Illicit liquor was found as follows:
katta no. 1, 150 quarter bottles of Mastana Masaledar Desi Sharab; katta no. 2, 150 quarters bottles of Joshila Santra Desi Sharab;
katta no. 3, 100 quarters bottles of Raseela Santra Desi Sharab; katta no. 4, 48 quarter bottles of Bagpiper Whisky; "For Sale in Haryana Only", 180 Ml was written FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 7 of 13 katta no. 5, 48 quarters bottles of Bonnie Special Whisky; "For Sale in Haryana Only", 180 ml was written katta no. 6, 35 quarters bottles of No. 1 Whisky "For Sale in Haryana Only", 180 ml was written katta no. 7, 50 quarters bottles of McDowell Whisky "For Sale in Haryana Only", 180 ml was written
13. The IO further deposed that he took out one quarter bottles from each katta as sample and rest of the quarter bottles were again kept in the kattas which were tied with white cloth and sealed with the seal of 'SC'.
14. IO filled form M-29. Thereafter he seized the aforesaid case property vide seizure memo Ex. PW1/B. Seal after use was handed over to Ct. Mukesh. However, no seal handing over Memo was ever prepared. IO prepared Tehrir Ex.PW1/C and handed it over to Ct. Satpal for registration of FIR. Ct. Satpal took it to Police Station and returned to spot with copy of FIR and original Tehrir and gave it to IO. IO prepared site plan Ex. PW1/D at the instance of Ct. Satpal. IO then arrested and personally searched the accused vide Ex. PW1/E & Ex. PW1/F respectively FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 8 of 13 and recorded statement of witnesses u/s 161 Cr.P.C. IO returned to police station with accused and case property. IO got deposited the case property in Malkhana. Accused was got medically examined at Apollo Hospital. On the next day, accused was produced before the concerned Court from where he was remanded to JC. He sent the samples for chemical examination and received the result. He deposed that after completion of necessary investigation, he prepared the chargesheet and filed before the Court. He was duly cross examined by Ld. Defence counsel.
15. PW-2 Ct. Satpal is the complainant in the present case.
He deposed that on 17.09.2012 he was posted at PS Sarita Vihar. On that day at about 05:45 P.M, he alongwith Ct.Mukesh were on patrolling duty at beat no.11, Aali Vihar. One secret informer met and told them that there is a house of Virender Pradhan near to MCD School where illicit liquor was kept for sale. He further deposed that when he and Ct.Mukesh reached at the house of Virender Pradhan, one person namely Raju was arranging the kattas of illicit liquor at room no.4 of the aforesaid house then they FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 9 of 13 immediately nabbed the accused Raju and counted the kattas of illicit liquor and thereafter, called the duty officer at PS Sarita Vihar. Thereafter HC Suresh Chand reached the spot and they handed over the custody of the accused alongwith case property I.e 7 kattas of illicit liquor to HC Suresh Chand. HC Suresh Chand then opened the 7 kattas of illicit liquor and counted the same and took out one quarter bottle from each katta as a sample and thereafter sealed the samples with seal of SC. Remaining case property was also sealed with the same seal. HC Suresh prepared the seizure memo Ex.PW1/D. Thereafter HC Suresh fill up the form 29. HC Suresh recorded his statement/complaint which is Ex.PW1/C. Thereafter HC Suresh prepared the tehrir and handed it to him for registration of FIR. He took the tehrir to PS Sarita Vihar and return back with copy of FIR and original tehrir to HC Suresh Sharma. HC Suresh arrested the accused Raju vide memo Ex.PW1/E and conducted his personal search vide memo Ex.PW1/F. He further deposed that he alongwith HC Suresh and Ct.Mukesh took accused alongwith seized illicit liquor to PS Sarita Vihar.
FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 10 of 13 Discussion on merits :
16. In the instant case, the case property was seized with seal of 'SC'. During cross examination, the IO admitted after affixation of seal, he handed it over to Constable Mukesh. However, no seal handing over memo was prepared. The seal was also not deposited with the MHC (M). When the case property was produced before the Court, Katta no. 3 was observed to be torn from middle by the Predecessor Court. Thus, the case property produced before the Court cannot said to be intact. Once the case property is not intact, the recovery of illicit liquor cannot be said to have been proved from the possession of the accused. In the case of Dhanpat Vs. State of Punjab 2000 (1) CC Cases HC 52, it has been held that in the absence of any link evidence that the property was deposited in the malkhana intact, accused is entitled to benefit of doubt.
17. In the cross examination of the IO and other witnesses have stated that all other adjacent rooms were locked. Search and seizure which is mandated by section 100 Cr. P. C clause 4 and 5, it is clear from the evidence when the said proceedings FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 11 of 13 against the accused were conducted it was 05:45 PM and the place being a densely populated residential area, it is not possible that no independent public witness was available to the IO. There is nothing on record to suggests that notice to join investigation was given by IO. The IO has admitted that he did not make any effort to find out the status of accused as a tenant in the said premises where the alleged recovery was made. Further, no reasonable explanation has been given by prosecution for non joining of the public witnesses. 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.
18. The prosecution evidence also reveals that the samples and seizure memo both were prepared before the registration of the FIR but yet both the seizure memo as well as form 29 bears the FIR number. 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 FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 12 of 13 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. Similar view has been held in Zohra vs State 2000 (83) DLT 177 (Del).
19. All these infirmities in the prosecution evidence seriously reflects on the veracity of prosecution case the benefit whereof must go to the accused. Hence, the accused Raju @ Dharambir is acquitted of the offence U/s 33 Delhi Excise Act by giving them benefit of doubt. Case property be confiscated to the State and be destroyed after expiry of period of appeal.
Now to come up for compliance of Section 437A CrPC.
Digitally signed by SHIVANI SHIVANI Announced in the open CHAUHAN CHAUHAN Date: 2018.10.29 Court on 27.10.2018 09:34:53 +0530 (SHIVANI CHAUHAN) METROPOLITAN MAGISTRATE-05 SOUTH EAST DISTRICT SAKET COURTS NEW DELHI FIR No. 284/2012, PS-Sarita Vihar State vs. Raju @ Dharambir Page no. 13 of 13