Delhi District Court
State vs . Dilip on 17 January, 2013
IN THE COURT OF SH. SACHIN GUPTA
METROPOLITAN MAGISTRATE8(OUTER), ROHINI COURTS,DELHI
State Vs. Dilip
FIR No. 356/03
PS. Bawana
U/s. 61/1/14 Excise Act
Case ID No. 02401R5463112004
JUDGMENT
1) SI No. of the case : 72/A/12
2) The date of commission : 05.11.03
of offence
3) The name of the complainant : HC Virender Singh
4) The name & address of accused : Dilip
S/o Sh. Om Prakash
R/o H.No. 234, Phase IV,
Sector - 26, Rohini, Delhi.
5) Offence complained of : U/s 61 of Punjab Excise Act,
1914
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
8) The date of such order : 17.01.2013
FIR No. 356/03 1/12
Date of Institution : 02.07.2004
Judgment reserved on : 17.01.2013
Judgment announced on : 17.01.2013
THE BRIEF REASONS FOR THE JUDGMENT:
1. Case of the prosecution in brief is that on 05.11.03 at about 4:00 pm near LML godown ABlock, Shahbad Dairy, Delhi, within the jurisdiction of PS. Bawana, accused Dilip was found in possession of one plastic cane containing illicit liqour which when measured came to be 15 bottles, without any permit or licence & in contravention of Delhi Administration notification and thus, he thereby committed an offence punishable u/s. 61/1/14 Punjab Excise Act.
2. After completion of investigation, charge sheet against the accused for offence u/s. 61/1/14 of Punjab Excise Act was filed in the court and after complying with the provisions of Sec. 207 Cr. P.C., arguments on charge were heard. Vide order dated 17.09.2007, charge was framed u/s. 61/1/14 of Excise Act against the accused to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined four witnesses i.e., PW1 ASI Champa Toppo, PW2 HC Surender, PW3 HC Virender Singh and PW4 SI Balbeer Singh.
4. Statement of accused recorded under section 281 Cr.P.C in which the stand of the accused is of general denial. Accused has stated that he is innocent and has been falsely implicated in this case by the police officials. However, the accused has chosen not to lead any DE.
FIR No. 356/03 2/12
5. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
6. In the present case, PW1 ASI Champa Toppo stated that on 05.11.03, she was posted at PS. Bawana as HC and was working as Duty Officer from 4:00 pm to 12:00 midnight. He further stated that on that day at about 06:10 pm, he received a rukka through Ct. Surender which was sent by HC Virender and on the basis of the same, he registered the FIR Ex. PW1/A. He further stated that he also made endorsement on the rukka and the same is Ex. PW1/B. He further stated that after registration of the case, he handed over the copy of FIR and original rukka to ASI Surender to be handed over to ASI Balbir to whom the further investigation of the present case was handed over.
7. PW2 HC Surender stated that on 05.11.03, he was posted at PP Shahbad Dairy, PS Bawana as Ct. He further stated that on that day, he was on patrolling duty along with HC Virender. He further stated that on that day at about 4:00 pm when they were present at LML Vespa Godown, Near Shahbad Dairy, one secret informer came and told to Ct. Virender that one person would come from the side of Shahbad Daulatpur with illicit liquor and would go towards Jhuggis of Sector - 26 and can be apprehended, if raided. He further stated that IO HC Virender asked 45 public persons to join the investigation but none agreed. He further stated that thereafter, they started waiting the accused near the wall of the godown. He further stated that at about 4:15 pm, they saw one person coming from the side of Shahbad, Daulatpur having one plastic cane in his hand. He further stated that after seeing the police party FIR No. 356/03 3/12 he turned back and started walking with a pace. He further stated that on suspicion he was stopped and plastic cane was checked and it was smelling liquor. He further stated that on interrogation name of the accused was revealed as Dilip. He further stated that IO asked him to bring a bucket and bottle for measurement of liquor, he accordingly brought the same. He further stated that IO measured the liquor and it was found equivalent to 15 bottles of 750 ml each. He further stated that one quarter bottle was taken out as sample and remaining liquor was poured in the cane. He further stated that the cane and the sample were sealed with the seal of VS. He further stated that IO prepared form M29, served with the same seal, liquor was taken into police possession, prepared a rukka and handed over the same to him for registration of FIR. He further stated that he went to the PS and got the FIR registered and came back at the spot along with copy of FIR and original rukka and handed over the same to IO. He further stated that IO prepared the site plan, arrested the accused and personally searched the accused. He further stated that case property was deposited in malkhana. He further stated that IO recorded his statement.
8. PW3 HC Virender Singh stated that on 05.11.03, he was posted at PP Shahbad Dairy, PS Bawana as HC. He further stated that on that day, he was on patrolling duty along with Ct. Surender. He further stated that at about 4:00 pm, they reached at A Block, Shahbad Dairy, near LML godown, they met with secret informer who informed him that one person would come from the side of Shahbad Village with illicit liqour. He further stated that at about 4:15 pm, one person came from village Shahbad side having one plastic cane in his right hand. He further stated that they FIR No. 356/03 4/12 stopped that person who disclosed his name as Dilip. He further stated that he opened the lid of the cane and found that it was smelling liqour. He further stated that he asked Ct. Surender to bring one empty bucket and bottle and he brought the same. He further stated that he measured the liquor and found that it was equivalent to 15 bottles of 750 ml. He further stated that he took one bottle as a sample and poured the remaining liquor in the cane and sealed with the seal of VS. He further stated that thereafter, he seized the case property vide seizure memo Ex. PW2/A, prepared the rukka Ex. PW3/A and handed over the rukka to Ct. Surender for registration of FIR. He further stated that after sometime, Ct. Surender returned back to the spot along with ASI Balbeer. He further stated that he handed over the accused, case property and a documents of second IO/ASI Balbeer. He further stated that ASI Balbeer prepared the site plan at his instance.
During his cross examination, PW3 admitted that place of incident was a public place. He stated that he asked some public persons to join the investigation but none agreed and constable surender brought the bucket and bottle from the Jhuggi. He denied that nothing was recovered from the accused.
9. PW4 SI Balbeer Singh stated that on 05.11.03, he was posted at PP Shahbad Dairy, PS. Bawana as ASI and on that day, Ct. Surender handed over him rukka and copy of FIR as the further investigation of the present case was handed over to him. He further stated that thereafter, he along with Ct. Surender went to the spot of incident i.e., A Block, Shahbad Dairy, near LML godown. He further stated that after reaching there, he met with HC Virender who handed over him the accused, plastic FIR No. 356/03 5/12 cane and other documents. He further stated that he prepared the site plan at instance of first IO, arrested the accused Ex. PW2/B and personally searched the accused vide search memo Ex. PW2/C. He further stated that they returned back to the spot and deposited the case property in the maalkhana. He further stated that on 05.11.03, he send the sample to Excise Lab, ITO through Ct. Hari Kumar vide RC No. 55/21/03. He further stated that he collected the result from Excise Lab on 02.02.04. He further stated that thereafter, he prepared the challan and filed the same in the court. During his cross examination, PW4 denied that nothing was recovered from the accused.
10. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
11. In the present case, from the testimonies of prosecution witnesses, it is crystal clear that there was complete lack of any genuine and sincere effort on part of police officials to join public witness to the proceedings despite the fact that admittedly place of alleged incident was a public place. PW2 HC Surender and PW3 HC Virender singh stated that 45 passerby were requested to join the investigation but none agreed. PW2 also stated that the IO asked him to bring an empty bucket and one empty bottle of 750 ml and a mug for measurement of liquor and he brought the same. During his cross examination, IO/PW3 HC Virender Singh also stated that HC Surender abrought the bottle and bucket from the Jhuggi. Clearly, place of alleged incident is Public FIR No. 356/03 6/12 place. In the facts and circumstances of the present case, at least the persons living in Jhuggi from whom the empty bucket and bottle was allegedly arranged, could have been made witness to the proceedings which was admittedly, not even done by the police officials for the reasons best known to them. It is well settled that the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. At least in the facts and circumstances of the case, in my opinion, IO could very well have served the passersby with notice in writing to join the police proceedings. The above referred mechanical excuse given by the prosecution for not joining the public witnesses in the police proceedings/investigation creates a reasonable doubt in the prosecution version. It is pertinent to note that IO has not even made a note of the excuses given by the above said passersby for not joining the proceedings. Also there is no explanation from the side of IO as to why he did not record the excuses given by the passersby who were requested to join the police proceedings. At this juncture, it would be pertinent to refer to some case laws.
12. In a case law reported as "Anoop Joshi Vs. State", 1992(2) C.C. Cases 314(HC), Hon'ble High Court of Delhi has observed as under:
"18. 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 he FIR No. 356/03 7/12 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 the police in investigation as a citizen, which is an offence under the IPC.
13. In a case law reported as "Roop Chand Vs. The State of Haryana", 1999(1) C.L.R 69, the Hon'ble 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 petitioner witnesses that some witnesses from 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.
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 FIR No. 356/03 8/12 confidence because the police officials who are the only witnesses examined in the case have not given the name 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 proceeded against them under relevant provisions 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."
14. In case law reported as "Sadhu Singh Vs. State of Punjab", 1997(3) Crimes 55 of the Hon'ble Punjab & Haryana High Court observed as under:
5.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.
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2.
Both the witnesses supported the prosecution FIR No. 356/03 9/12 version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version.
15. In the facts and circumstances and settled preposition of law as discussed herein before, it is crystal clear that there was complete lack of any sincere and genuine efforts to join any public witnesses before starting initial investigation of the present case and it creates a very serious doubt over the prosecution version.
16. Moreover, as per the version of the prosecution, accused was in possession of liquor without any licence/permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where the case property was arranged by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same.
17. Not only this, the case property and accused remained in control of police FIR No. 356/03 10/12 officials till the case property was deposited in the malkhana. Hence tampering with the case property cannot be ruled out as the seal remained all along with the police officials. As per the case of the prosecution, the case property was sealed with the seal of VS. However neither any handing over memo nor returning memo of the seal was prepared by IO. Thus, tampering may not be ruled out as sealed case property and accused were with the police officials till the time case property was deposited in Malkhana. Hence, Prosecution has completely failed to prove that the case property remained intact and was not tampered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station. This again creates sufficient doubt over the prosecution story, benefit of which must go to the accused.
18. Further, it is an admitted fact that seizure memo was prepared before the registration of the FIR. But the perusal of seizure memo shows that FIR number is mentioned at the top of it. It is a surprising fact that how the FIR number finds the mention at the top of seizure memo when the FIR was not registered at that time even as per the version of prosecution itself. No explanation of any kind whatsoever has been given on this point. These facts casts a very serious doubt in the prosecution story and in such cases, benefit of doubt is to be given to the accused.
19. In a case titled "State of Himachal Pradesh v/s Dharam Dass", 1992(1) C.L.R, it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the FIR No. 356/03 11/12 benefit of every doubt occurring in the prosecution case.
20. In "Thakorbhi Viribhai Vasava & others V/s The State of Gujrat" Crime, Vol (1) 1987/37 Gujrat High Court (D.B), it has been ruled down that in criminal trials even a slightest doubt raised in favour of accused ordinarily entitle the accused to get acquittal.
21. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. In the facts and circumstances of the present case, it is clear that the chain of evidence against the accused is not complete.
22. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Dilip for the offence u/s 61 of Punjab Excise Act. Case property be confiscated to the State. File be consigned to record room after due compliance.
Announced in open court (SACHIN GUPTA)
on 17th day of January, 2013 MM8(OUTER):ROHINI COURTS
DELHI, 17.01.2013
FIR No. 356/03 12/12