Delhi District Court
State vs . Anil Kumar on 22 February, 2016
IN THE COURT OF SH. KAPIL KUMAR, MM,
(NORTH)ROHINI COURTS, DELHI
State Vs. Anil Kumar
PS. Swaroop Nagar
1. FIR No. : 73/13
2. Date of Offence : 06.03.2013
3. Name of the complainant : Ct Parmender Singh
PIS no. 28883911
4. Name, parentage and Address : Anil Kumar
of the accused S/o Sh Balbir
R/o H. no. 1901, Gali no.90 A
Block Sant Nagar, Burari, Delhi.
5. Offences complained of : 33 Delhi Excise Act.
6. Plea of the accused : Pleaded not guilty.
7. Sentence or final order : Acquitted.
8. Date of order : 22.02.2016.
JUDGMENT
1. The case of the prosecution is that on 06.03.2013 at about5:10 PM at Burari Road, leading towards Laxmi Nagar within the jurisdiction of PS Swaroop Nagar, accused was found in possession 24 half bottle of Chak de Masaledaar sharab and 12 bottles of Halchal Masaledaar sharaab in contravention of notification issued by GNCT.
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2. After investigation, charge-sheet was filed against the accused. The copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr. P.C. Thereafter, charge was framed against the accused under Section 33 Delhi Excise Act to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined 8 witnesses. PW-1 is ASI Rohtash, PW-2 is W/Ct Suman Lata, PW-3 HC Banwari Lal, PW-4 is Ct Parmender, PW-5 is Ct Rajbir, PW-6 is HC Shreedhar, PW-7 is HC Charan Singh and PW-8 is Ct Nitin.
4. After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. The testimonies of prosecution witnesses are being touched upon, in brief, as follows:-
6.1. PW-1 deposed that on 06.03.2013, he recorded the present FIR on the basis of rukka brought by Ct Rajbir sent by HC Shreedhar.
6.2 PW-2 deposed that on 06.03.2013 she recorded DD no. 36 B. 6.3 PW-3 and PW-4 deposed on the same lines to the effect that on 06.03.2013 at about 5 PM they were patrolling in Burari area. They were having secret information a person is having illicit liquor in a vacant plot at Laxmi Nagar. They went at the plot of Laxmi Nagar where they found one person with two white FIR NO. 73/13 Unique ID no 02404R0167812013 2/9 kattas. That person was apprehended with the said kattas and the information was given to Duty Officer of PS Swaroop Nagar. Thereafter Ct Rajvir and IO HC Shreedhar came at the spot and case property with accused was handed over to IO. After search one katta was found having two patties, one patty was having 24 half bottles of masale daar desi sharaab and another patty found containing 32 quarter bottles of masale daar desi sharab. The second katta was found containing one patty in which 12 bottle of masale daar desi sharaab. Patties were given serial no. 1 to 3. One sample bottle from each patty was taken out by the IO and same were given serial no. S1 to S3. Case property was sealed with the seal of SM.
Form M 29 was filled. Statement of Ct Parminder was recorded. Rukka was prepared, FIR got registered through Ct Rajvir. Site plan was prepared. Disclosure statement of accused was recorded. Case property deposited in malkhana. Case property correctly identified by the witnesses.
6.4 PW-5 and PW-6 deposed on the same lines to the effect that after receiving DD no. 46 B they reached at the spot where the custody of accused and illicit liquor was handed over to IO. Case property was recovered from the kattas, patties were given serial no. 1 to 3. Sample bottles were given serial no. S 1 to S3. Form M 29 was prepared. Statement of Ct Parmender was recorded. FIR got registered. Case property was seized. Accused was arrested and was personally searched. Case property was sent to Excise Laboratory for examination. Charge sheet was filed.
6.5 PW-7 deposed that on 06.03.2013 he received two white plastic kattas containing illicit liquor with the seal of SM. Entry was made in register no. 19 vide Mud no. 725/13 which is ExPW7/A. On 08.03.2013 those samples were handed over to Ct Nitin vide road certificate no. 281/13 to deposit the same in ITO Vikas Bhawan for chemical examination.
6.6 PW-8 deposed that on 08.03.2013 he was received three samples bottles FIR NO. 73/13 Unique ID no 02404R0167812013 3/9 sealed with the seal of SM vide road certificate no. 2821/13 and went ITO Vikas Bhawan to deposit the same for chemical examination.
7. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. It is evident from the testimony of PW-3 and PW-4 that accused was apprehended along with the alleged illicit liquor at public place and that public persons were not joined the investigation.
9. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(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 the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had FIR NO. 73/13 Unique ID no 02404R0167812013 4/9 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".
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
10. PW-3 and 4 nowhere stated in their examination in chief that they requested any public persons to joined the investigation. Only a bald statement has been made that they requested public persons to join the investigation but none agreed. This avernment is not reliable at all. No names of the persons has been mentioned who were asked to join the investigation. If those persons refused to join the investigation then it is not mentioned as to what action was taken against them. If the public persons were asked to join the investigation then why this fact is not mentioned in the examination-in-chief by the witnesses. From this it is clear that FIR NO. 73/13 Unique ID no 02404R0167812013 5/9 deliberately no public person was asked to join the investigation in the present case. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
11. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied] Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the above-mentioned creates doubt on the case of the prosecution.
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12. PW-4 and PW-5 deposed that seal after use was handed over to PW-5 only. It
appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
No seal handing over memo is on record. Hence, considering the legal position, the benefit of doubt should be given to the accused.
13. Furthermore, the testimony of PW-5 and PW-6 , and the perusal of record along with rukka Ex.PW-1/B shows that Form M-29 were prepared prior to the dispatch of the Rukka and registration of the FIR. However, perusal of the said document clearly shows that the FIR number and other particulars of the present case are mentioned on the said document. No explanation has come from the prosecution to justify as to how the FIR number surfaced on Form M-29 which was prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused.
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14. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged country made liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
15. In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a FIR NO. 73/13 Unique ID no 02404R0167812013 8/9 reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
17. In view of the aforesaid discussion, in my opinion accused has been able to raise a probable defence creating doubt about the existence or veracity of the prosecution version which renders the same untrustworthy. Accordingly, accused Anil Kumar S/o Sh Balbir is acquitted of the charge leveled against him. Case property be confiscated to State and be destroyed after expiry of period of appeal. Fresh bail bond and surety bond furnished are accepted in compliance of Section 437 A Cr.P.C.
File be consigned to Record Room after due compliance.
Announced in the open court (KAPIL KUMAR)
on 22.02.2016 Metropolitan Magistrate-06
North District, Rohini Courts
Delhi.
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