Delhi District Court
State vs Vinod on 26 May, 2011
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 05, ROOM NO. 513,
DWARKA, DELHI.
STATE
VERSUS
VINOD
FIR No. 69/98
P.S.: Inderpuri
U/S: 61/1/14 Excise Act
1. Serial No. of the case : 02405R0233622010
2. Date of commission of offence: 15.03.1998
3. Name of the Complainant : HC Jai Prakash,
P.S Inderpuri, New
Delhi.
4. Name of the accused, and Vinod @ Jogender,
her parentage and residence : S/o Sh. Ram Swaroop,
R/o W86/1, Inderpuri Hault,
Shastri Park, New Delhi.
6. Date when judgment : 26.05.2011
was reserved
7. Date when Judgment : 26.05.2011
was pronounced
FIR No. 69/98 PS Inderpuri
State Vs. Vinod Page 1/10
8. Offence Complained of : Section 61/1/14 Excise
or proved Act
9. Plea of accused : Pleaded not guilty
10. Final Judgment : Acquitted
Brief Statement of reasons for the decision of the case
1. Briefly stated the case of the prosecution is that on 15.03.1998, at about 3.40 pm at Inderpuri hault, Shastri Park, Jhuggi No. 86/1, Inderpuri within the jurisdiction of PS Inderpuri, you were found in possession of 12 cartons box containing 12 bottles each of Royal Gold Fine whisky in box 1, 2 and 3, 12 bottles of Pure Gold whisky in box 4, 48 quarters each of Boreer Whisky in box 5 to 7, 48 quarters of James Bond extra fine whishy in box 8 & 9, 48 quarters of Bagpiper whisky in box 10, 240 quarters of bony scot whisky in box 11 and 12 one plastic katta containing 9 bottles of Shikar maseladar sharab without any permit or license in contravention of notification issued by Delhi Administration. Challan was filed on 12.03.1999.
2. On appearance of the accused, a charge for the offence under Section 61/1/14 of Punjab Excise Act was framed on 19.02.2002 against him to FIR No. 69/98 PS Inderpuri State Vs. Vinod Page 2/10 which he pleaded not guilty and claim trial.
3. The present case is pending for PE since 28.01.2003 and despited having opportunities for almost 8 years, the prosecution has failed to examine the witnesses and has only two witnesses namely PW1 HC Ganesh Dass and PW2 Retd. HC Bijender have been examined to prove the case against the accused.
4. The ld. APP for the State has submitted that the accused has the right to speedy trial, but not at the cost of the victims, which is not only the individual concerned in the present case, but the society at large. The ld. APP for the state also submitted that when the offence is heinous the prosecution's evidence ought not to be closed.
5. Right to speedy trial is a fundamental right of every citizen as held by Hon'ble Supreme Court in a catena of judgments. It would be travesty of justice if the trial continues till the life span of the accused and ends with the death of the accused. The status of the accused is not that of a convict and the accused is presumed to be innocent till the guilt is proved beyond reasonable doubt. Merely because a person is an accused that does not tantamount that he is guilty, the accused might be innocent also. Therefore the accused has a right to know if he is guilty or not as soon as possible. FIR No. 69/98 PS Inderpuri State Vs. Vinod Page 3/10 The accused should not be in the dock waiting inanely for the appearance of the witnesses of the prosecution for eternity. The agony of long trial is as onerous to face as the ultimate conviction, more so when the accused is appearing in the court regularly and the witnesses of the prosecution do not turn up. There is the patent fault of the investigating officer for the non appearance of the public witnesses. In very few cases efforts are made to ascertain the correct addresses of the witnesses and seldom the permanent address of the witnesses are taken. In almost all the cases, the prosecution relies upon the ocular evidence based upon the testimonies of eye witnesses as investigations are not done on the scientific lines and when these public witnesses are not traceable because of any reason, the whole case of the prosecution vanishes into the thin air. The court is not the adjunct of the State, but the court exercises sovereign function and before the court the status of the State is that of a litigant only and the State is not entitled to any privilege of any kind unless the law provides for it. At the same time the court is aware of the limitations of the State, as a litigant it being not a person, but an institution because of which the Court does give it a little bit of freeplay in the joints so that the 'Justice' does not become the causality in the dispensation of justice as it is nothing but the grossest injustice to the State and ultimately to the victims and their family members when the accused it let off by the court, because of this reason only ample opportunities are given to the prosecution to serve its witnesses. FIR No. 69/98 PS Inderpuri State Vs. Vinod Page 4/10
6. In criminal courts including this court there is congestion of work, because of which it is not possible to bring the prosecution to a speedy termination. There are many things which when comes before the court requires immediate attention like the recording of the statements under 164 of Cr.PC., test identification proceedings etc. because of which though the witnesses are present, but they have to discharged unexamined sometimes due to constraints of time, in such case it would be iniquitous if delay is caused to give benefit to the accused only. The court can understand the agony which the accused faces due to protracted and tardy pace of the proceedings, but for this no fault can be found with the prosecution only and the opportunity to the prosecution to examine its witnesses cannot be closed.
7. The Hon'ble Supreme Court in Abdul Rehman Antulay v. R.S. Nayak (AIR 1992 SC 1701) wherein it has been observed that the right of speedy trial emanates from the Article 21 of the Constitution which is reflected in the provisions of the Code of Criminal Procedure. But at the same time in para 51 of the same judgment it has been observed:
"But then speedy trial or other expressions conveying the said concept are necessarily relative in nature. One may ask speedy means, how speedy ? How long a delay is too long ? We do not think it is possible to lay down FIR No. 69/98 PS Inderpuri State Vs. Vinod Page 5/10 any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular Court, means of communication and several other circumstances have to be kept in mind".
8. In view of the facts and circumstances of the case that sufficient efforts have been made to procure the presence of the witnesses, inspite of which it could not be procured. Few other official witnesses have still left to be examined, but their examination or nonexamination in the absence of the complainant are not going to affect the ultimate decision of the present case therefore the prosecution's evidence in the present case was closed.
9. By order dated 24.01.2011 PE was closed and statement of accused was recorded under Section 313 Cr.P.C. and all the incriminating evidence were put to him where he has denied his involvement in the case and stated that he has been falsely implicated. Thereafter final arguments were heard. Ld APP for the state argued that the case has been proved beyond reasonable doubts against the accused and prays for conviction.
10. On the other hand, the accused submits that he was falsely implicated by the police.
FIR No. 69/98 PS Inderpuri State Vs. Vinod Page 6/10
11. PROSECUTION EVIDENCE:
11.1 Seizure of Case Property: In the present case, the alleged recovery was effected in the presence of HC Jai Prakash, ASI Man Singh, HC Satuavir, Ct. Kailash and HC Prem Chand. But none of the witness was put before the court. Ct Kailash Chand was stated to have expired and accordingly, he was deleted from the list of witnesses. Only PW 1 HC Ganesh Dass was examined who stated that on the date of offence, he was posted at PS Inderpuri as DO. He received a rukka sent through HC Jai Prakash by Ct Kailash Pati and he registered the FIR. Since, the maker of the Rukka is HC Jai Prakash who has not been examined, hence, the seizure of the case property from the possession of the accused is not proved. PW 2 who is the person who received the case property alongwith form M 29 duly sealed and he made an entry to this effect in register No. 19 at Serial No. 782 which is Ex. PW 2/A. He has also submitted that the case property was sent to Excise Lab through Ct Kailash Pati vide RC No. 196/21 on 17.03.1998.
Again the question came that even if it is proved that the case property was deposited with MHC(M) on 15.03.1998 and also it was sent for chemical examination to Excise Lab on 17.03.1998, the came cannot be attributed to have been recovered from the possession of the accused in the absence of testimony of recovery witnesses. Accordingly, the seizure of case property is not proved from the possession of the accused.
FIR No. 69/98 PS Inderpuri State Vs. Vinod Page 7/10 11.2 Absence of Independent Witnesses: In his examination PW4 stated that after apprehending the accused, he checked and found pouches of illicit liquor. In the present case the accused is a lady and there is no explanation by the prosecution why the search of the accused was not conducted in the presence of any women officer. Moreover section 100(4) Cr.P.C provides casts a duty upon the officer to call upon two or more independent witnesses before making a search. In their testimony, PW 3 as well as PW 4 has not stated that he made any efforts to call independent witnesses before making the search. In her statement u/s 313 Cr.P.C accused stated that the case property was not recovered from her possession. No reason has been advanced by PW 3 of the absence of independent witnesses at the time of seizure of case property or arrest and personal search of the accused. The locality being hugely populated area, it is very unlikely that the police officials did not find any public person to join the investigation. The accused was apprehended at about 7.30 pm and despite the fact that the locality is the densely populated area and also the timing was not such which eliminates the presence of public person at the spot, no public person was made a witness either to the recovery of the case property or to the arrest of the accused.
In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been FIR No. 69/98 PS Inderpuri State Vs. Vinod Page 8/10 made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we".
It has not come in evidence that no public person was present. Therefore, the whole case of the prosecution appears to be planted upon the accused.
11.3 Presence of alcohol content in the case property: As per the report of Deputy Chemical Examiner, Excise Department, Govt. of Delhi the sample was tested positive for ethyl alcohol. The evidence of chemical examiner is admissible without he being examined as per Indian Evidence Act.
12. In the light of above discussion and the evidence on record, I am of the considered view that the prosecution has failed to prove the case against the accused beyond reasonable doubt. Eventhough, the sample of the case property has tested positive for alcohol contents, the recovery and seizure of the same cannot be attributed from the accused beyond reasonable doubt. Moreover, the prosecution has failed to examine the recovery witness. The offence is therefore not made out against the accused.
13. Accordingly, the accused is acquitted for the offence under Section FIR No. 69/98 PS Inderpuri State Vs. Vinod Page 9/10 61/1/14 of Punjab Excise Act with full honours. Bail bond cancelled. Surety Discharged. File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT)
COURT ON 26.05.2011 METROPOLITAN MAGISTRATE05
DWARKA COURTS, DELHI.
FIR No. 69/98 PS Inderpuri
State Vs. Vinod Page 10/10