Delhi District Court
State vs . Sanjeev Kumar Etc. on 3 November, 2015
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE (WEST) 03,
TIS HAZARI COURTS, DELHI.
FIR No.376/2003
PS - Nangloi
U/s - 61 of Excise Act, 1914
State Vs. Sanjeev Kumar etc.
Unique Case ID No.02401R1487382008
J U D G M E N T
(a) Sr. No. of the case 2036/2/08
(b) Date of offence 15.05.2003
(c) Complainant Ct. Virender Kumar, No.1199 W, PS Nangloi, Delhi.
(d) Accused persons (1) Sanjeev Kumar S/o Sh. Satya Pal R/o RZ - B - 39, Janak Puri, Uttam Nagar, New Delhi.
(2) Mangal Ram S/o Sh. Chaman Lal R/o H. No.W -
132, Uttam Nagar, New Delhi.
(e) Offence(s) Under Section 61 of The Punjab Excise Act, 1914.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 25.02.2004
(i) Date when judgment Not reserved
was reserved
(j) Date of judgment 03.11.2015
1. The allegations against accused persons are that on 15.05.2003 at about 04:30 pm at Main Rohtak Road, Near Pepsi Godown, Mundka, Delhi, accused persons namely Sanjeev Kumar and Mangal Ram alongwith coaccused Ashok (Since PO) FIR No.376/2003 Page No.1 of 11 were found in possession of 25 plastic sacks of illicit liquor containing two petties containing 12 bottles in each petty as per seizure memo which they were carrying in vehicle Vikram TSR bearing registration number HR38F2314 without any permit or license for the same. According to prosecution, accused persons thereby committed offence punishable under Section 61 of The Punjab Excise Act, 1914.
2. After completion of investigation, chargesheet was filed. Copy of the challan was supplied to the present accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for offence punishable under Section 61 of Punjab Excise Act, 1914 was framed against the present accused persons vide order dated 08.09.2010 to which accused persons pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
3. Prosecution adduced evidence in support of its case. In this matter, PW2 HC Ashok Kumar has proved and exhibited formal FIR Ex.PW2/2 and endorsement on Rukka Ex.PW2/1. PW2 was examined, not crossexamined by accused persons despite opportunity given and was discharged.
4. PW3 HC Virender has deposed that on 15.05.2003, he was on patrolling and at about 04:30 pm, when he reached Near Pepsi Godown, Main Rohtak Road, Mundka, he noticed one TSR Vikram bearing registration number HR38F2314 parked Near Pepsi Godown on side of road and also noticed 2 - 3 persons doing FIR No.376/2003 Page No.2 of 11 something inside the vehicle. In the meantime, Ct. Dharamvir also came at the spot alongwith one secret informer who was also having information regarding the same. He narrated the facts to Ct. Dharambir who also joined him. Thereafter, he checked the vehicle and found that there were 25 plastic sacks containing gatta cartoons having liquor bottles. He with help of Ct. Dharambir apprehended three persons Mangat Ram, Sanjeev and Ashok. He immediately gave information regarding the illicit liquor at PS Nangloi. After some time, HC Rohtash Singh came at the spot. He narrated the incident to him. HC Rohtash Singh requested 2 - 3 passersby to join the present investigation, but, none of them agreed and left the spot without disclosing their names and addresses. Thereafter, HC Rohtash Singh checked the plastic sacks which were lying in above said vehicle and found that there were 25 plastic sacks and in each plastic sacks, there were two gatta cartoons. Each gatta cartoons were containing 12 bottles filled with liquor. Out of 50 katta cartoons containing liquor, 44 gatta cartoons were having bottles filled with liquor having label of "Contesa XXX Rum Radico Khaitan Ltd. 750 ml" for sale in Delhi only. Remaining 06 gatta cartoons were containing bottles having label of "Old Adventurer Matured Canc Rum 750 ml". Out of each gatta cartoon, oneone bottle were kept aside as a sample and remaining bottles were kept in their respective gatta cartoons and numbered as 1 to 50 and samples were numbered as 1A to 50A separately. Thereafter, all gatta cartoons were FIR No.376/2003 Page No.3 of 11 again put in respective bags, each bag containing 2 gatta cartoons and bags were numbered as 1 to 25. Plastic sacks were sealed with the seal of 'RSH' and samples were sealed separately with the seal of 'RSH'. Samples were kept in separate bags numbered as B1 and B2. In Bag No.B1, samples number 1A to 30A were kept and in a bag number B2, samples numbered as 31A to 50A were kept and both bags were sealed with the seal of 'RSH'. Form No.29 was also filled by IO and thereafter, seal was handed over to IO. IO prepared seizure memo of liquor as well as offending vehicle TSR Vehicle vide Ex.PW3/A. IO recorded his statement Ex.PW3/B. IO made endorsement on said statement and handed over to him for registration of FIR. He immediately went to PS, got the case registered, came back at the spot and handed over the copy of FIR and original rukka to IO. IO prepared site plan Ex.PW3/C at his instance, arrested accused Sanjeev, Ashok (Since PO) and Mangat Ram vide arrest memo Ex.PW3/D, Ex.PW3/E and Ex.PW3/F respectively. Personal search of accused persons namely Sanjeev, Ashok and Mangat Ram was conducted vide personal search memos Ex.PW3/G, Ex.PW3/H and Ex.PW3/I respectively. Case property was deposited in police malkhana. IO recorded his statement. On 09.07.2003, as per the directions of IO, he collected the samples from MHC(M) PS Nangloi vide Road No. 239/21/03 and deposited the same with Excise Lab and deposited the receipt with MHC(M). IO recorded his statement. He correctly identified present accused persons FIR No.376/2003 Page No.4 of 11 in the Court. PW3 was examined, crossexamined by accused persons and was discharged.
5. In matter of "Satish Mehra Vs. Delhi Administration & Ors." 1996, JCC 07, Hon'ble Supreme Court of India has been observed : "in a case, where, there is no prospect of the case ending in conviction, the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on the future date."
Further evidence of prosecution was closed as case property illicit liquor was produced before the Court first time today in seven plastic sacks without seal and particulars of this case and in open condition, since, no public witness was joined in investigation of the present matter which is clear from evidence of PW3 and further due to fact that no useful purpose would be served by continuing with the trial of this case as remaining prosecution witnesses were either formal witnesses or official witnesses.
STATEMENT OF ACCUSED
6. After closure of prosecution evidence, statements of accused persons were 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 them. They denied all the allegations and stated that they are innocent and have not committed any offence. Accused persons opted not to lead any FIR No.376/2003 Page No.5 of 11 evidence in their defence.
7. Final arguments from both sides heard. Record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
8. In the present case, accused persons have been charged for committing an offence punishable under Section 61 of The Punjab Excise Act, 1914. Both prosecution witnesses are official witnesses. In order to prove the guilt of accused persons, prosecution has to prove that the accused persons were found in possession of illicit liquor in contravention of notification issued by Delhi Administration and thereby committed an offence punishable under Section 61 of Punjab Excise Act, 1914. Prosecution has examined PW3 to prove the recovery of illicit liquor from the accused persons. The alleged spot of recovery is a public place i.e. Main Rohtak Road, Near Pepsi Godown, Mundka, Delhi, however, witness has not deposed regarding any concrete effort to join public witnesses being made by them at the time of affecting the alleged recovery of illicit liquor, despite their availability on the spot.
9. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In view of this Court, the nonjoining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
FIR No.376/2003 Page No.6 of 11
In case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), it was held as that : "where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected".
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 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 FIR No.376/2003 Page No.7 of 11 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 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 FIR No.376/2003 Page No.8 of 11 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.
10. Case property illicit liquor was produced first before the Court today in seven plastic sacks without seal and particulars of this case and in open condition. This shows that there might be tempering with the case property when the same was kept in the malkhana. It further caste the shadow of doubt on the case of prosecution as the condition of case property contradict the testimony of prosecution witness(es).
In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73 it was observed as under : "During the trial when the case property was produced namely the components of the still, there was no identify mark or chit on the case property to indicate that it related to the alleged recovery pertaining to the petitioner. There was no FIR No. or even chit placed on such a property. When such is the situation, the said property could be used in each and every case against anybody. There has to be proper identification of the property."
FIR No.376/2003 Page No.9 of 11
In the case of "State of Punjab Vs. Bagga Singh" 1987 Crl. App. No. 578 (P&H) DB, it was held that recovery was not corroborated by the evidence of official witnesses since "the case property produced before the trial court does not bear any identity marks".
In the case of "Datu Ram Vs. State" 1996 1 AD (Delhi) 52, it has been held that all the links starting from the seizure of sample till the same reaches the hands of public analyst must be proved to conclude that the seals remained intact.
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 deposited in the malkhana remained intact till brought before the Court, accused is entitled to benefit of doubt.
In the case of "Ayub Khan Vs. State" (Delhi Administration) ILR 1989 Delhi 467, it was observed as under : "Similarly, in the present case by not examining Malkhana Moharrir of the Police Station where the case property was kept, the prosecution has not been able to establish the chain to prove that the case property after being seized remained intact without being tampered with throughout the particularly when it remained in the Malkhana. Hence, for this short reason, it must be held that the appellant could not have been convicted of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act."
11. There are other facts/contradictions also on the record which erodes the credibility of prosecution evidence. PW3 has deposed in his examinationinchief that FIR No.376/2003 Page No.10 of 11 IO seized the case property before preparation of Rukka and before sending the Rukka for registration of the case. If, we believe that the illicit liquor was seized vide seizure memo before sending of the Rukka then how come the seizure memo bears the particulars of this case. 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, the abovesaid facts also erode the credibility of prosecution evidence.
12. 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 persons beyond reasonable doubt and they are given benefit of doubt in this matter. Accused persons namely Sanjeev Kumar and Mangal Ram are accordingly, acquitted for the offence punishable under Section 61 of The Punjab Excise Act, 1914. Case properties be confiscated to the State and be destroyed after expiry of period of appeal. Announced in open Court on November 03, 2015.
(HARVINDER SINGH) M.M.03/THC (WEST), Delhi/03.11.2015 FIR No.376/2003 Page No.11 of 11