Delhi District Court
Mukesh Kaur vs The State on 24 March, 2014
IN THE COURT OF Ms. ANU MALHOTRA
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
Crl. Appeal No. 01/2014
Unique ID No. 02401R0068852014
Mukesh Kaur
W/o Shri Ravinder Kumar,
R/o H. No. 585, 4th Storey,
Raghubir Nagar, Delhi. .....Appellant
Versus
The State .....Respondent
Date of Institution : 09.01.2014
Date of reserving the judgment : 24.02.2014
Date of pronouncement : 24.03.2014
JUDGMENT
This Judgment shall dispose of an appeal instituted on 09.01.2014 by the appellant Smt. Mukesh Kaur against the impugned judgment dated 13.12.2013 and sentence dated 16.12.2013 of the ld. MM (West), whereby the appellant was convicted of the commission of an offence punishable under Section 61(1) of the Punjab Excise Act, 1914 in CA No. 01/2014 Page 1/11 FIR No. 1037/99 PS Rajouri Garden, and was sentenced to undergo a Simple Imprisonment for a period of one year and to pay fine of Rs. 3,000/ and in default of the payment of fine, to undergo a Simple Imprisonment for 60 days and was also granted the benefit of Section 428 of the Cr.P.C., 1973 for setting off the period of custody, if any undergone during the period of detention. The fine of Rs. 3,000/ is indicated to have been paid by the appellant before the ld. Trial Court.
The charge levelled against the appellant as per the Trial Court Record is to the effect that on 11.11.1999 at about 8.30 pm, a secret information was received by Ct. Vijay, who was on patrolling duty that a lady had brought illicit liquor and if raided, the same could be recovered and thus, Ct. Vijay reached at House No. 584, 4 th Storey and saw a lady entering into the said house while carrying one gatta peti in her hands and on apprehending her, her name was learnt to be Mukesh Kaur and on peeping into the said house, the Constable found that there were many other gatta petis and on checking them, it was found that they contained liquor and that the appellant was stated to be found in possession of the said liquor without any permit or license in contravention of the Punjab Excise Act, 1914. HC Jugal Kishore is stated to have reached the spot whilst patrolling when Ct. Vijay produced the appellant alongwith 14 cartons of liquor and HC Jugal Kishore recorded the statement of Ct. Vijay Ex. PW3/C and requested 4/5 passersby to join the proceedings but none agreed on personal grounds and in the meantime, Ct. Somvir from the Excise Department also came and joined the proceedings and thereafter, the seizure memo of the CA No. 01/2014 Page 2/11 recovered cartons is stated to have been prepared. Before seizure, the cartons are stated to have been marked as serial No. 1 to 14 and in the cartons from serial Nos. 1 to 9, the same were found containing quarter bottles of Tyson Whisky and in seven of these cartons, the same were found containing 48 quarter bottles each, whereas one of these cartons found containing 47 quarter bottles of Boney Scot Whisky and one of these cartons found contained 46 quarter bottles of such brand, apart from the same, five cartons were found containing quarter bottles of Boney Scot Whisky and out of these five cartons, three had 48 such quarter bottles each and the remaining two cartons had 24 half bottles each. HC Jugal Kishore is then stated to have separated one quarter bottle and one half bottle from each of the cartons as samples. The samples and the cartons containing liquor were respectively sealed with the seal of JS and HC Jugal Kishore is stated to have also filled in the Form M29 and handed over the seal after use to Ct. Vijay. Thereafter, HC Jugal Kishore prepared seizure memo Ex. PW3/D and that he thereafter prepared the rukka Ex. PW4/A and sent Ct. Vijay Kumar to the Police Station for getting the FIR registered, who returned with the copy of the FIR and then, HC Jugal Kishore mentioned the FIR number on the seizure memo and arrested the accused vide memo Ex. PW3/A and released the accused on bail. Interalia, the site plan Ex. PW4/B was also indicated to have been prepared by him and thereafter, they returned to the Police Station and deposited the case property alongwith Form M29 in the Malkhana. The FSL result is on the record, CA No. 01/2014 Page 3/11 which indicates that all samples sent were of Whisky, though some samples are indicated to be diluted.
In support of the prosecution version before the ld. Trial Court , the State examined PW1 HC Sri Bhagwan, who testified to the deposit of the case property in the Malkhana and of his having made an entry in the Register No. 19; PW2 HC Rohtash, the Duty Officer at the Police Station, who recorded the FIR; PW3 Ct. Vijay, the recovery witness, who is stated to have apprehended the accused with the illicit liquor; PW4 SI Jugal Kishore, then posted as Head Constable at the relevant time and the initial Investigating Officer of the case, who testified to the seizure of the case property, the arrest of the accused, the sending of the samples to the Excise Laboratory and collection of report; PW5 examined in the instant case is ASI Madu Ram Yadav, who filed the police report under Section 173 of the Cr.P.C. in the Court.
The accused in her statement under Section 313 of the Cr.P.C., denied the incriminating evidence led against her and stated that the witnesses have testified falsely. She however led no evidence in her defence.
Vide the impugned judgment dated 13.12.2013, the ld. Trial Court has held the recovery of illicit liquor against the appellant, to have been established in toto.
Notice of the appeal was issued to the State. The trial Court record has been requisitioned, perused and received. CA No. 01/2014 Page 4/11
CONTENTIONS RAISED Arguments were addressed on behalf of the appellant by Ld. counsel for the appellant Shri Vivek Kumar and on behalf of the State by the Ld. Chief Public Prosecutor Shri Ramesh Kumar.
It has been submitted by the appellant that the impugned judgment and sentence have been imposed by the ld. Trial Court mechanically without due application of mind and that the evidence has not been appreciated; that no evidence has been led by the State to establish that the House No. 585, Four Storey, Vishal Enclave, Delhi was in the exclusive possession of the appellant nor had it been proved that she was the sole owner of the same; and that there was no evidence on the record to connect the accused with the premises from where the contraband was found and in relation thereto, reliance has been placed on behalf of the appellant on the verdicts of the Hon'ble Supreme Court in the case Mohd. Alam Khan vs. Narcotics Control Bureau & Anr., I (1196) CR 190 (SC) and in the case Guran Yadav vs. State, AIR 1971 SC 1641.
Interalia, it was further submitted on behalf of the appellant that there were variant versions set forth through the testimonies of the prosecution witnesses in relation to the preparation of the documents at different times; that the FIR in the instant case was registered prior to the alleged recovery; that the evidence on the record brought forth that the alleged recovery was planted on the appellant in as much as there is no CA No. 01/2014 Page 5/11 evidence led by the prosecution evidence as to why the case particulars were mentioned after the registration of the FIR; that the case property was produced in a unsealed katta; that the appellant was not associated during the proceedings when the Ex. PW3/B, the order of the ld. Trial Court was made for deposit of case property to be deposited in the District Nazarat; and that it is not indicated thereby that the ld. Trial Court had inspected the case property personally; that when the respective samples were taken out from the case property for production before the ld. Trial Court, the plastic katta, in which, they were kept was not sealed to maintain the sanctity; that the appellant was a lady and the ld. Trial Court did not appreciate that there was no lady police joined in the investigation; coupled with the factum that Investigation Officer did not make a request in the rukka to send a lady police personnel to the spot and admitted that the seizure memo and the tehrir were in different pens; and that the nonassociation of the lady police at the spot, without any explanation reinforces the false implication of the appellant; and that the ld. Trial Court did not appreciate that there was no compliance of Section 50(2) and Section 53 of the Punjab Excise Act, 1914; that the link from seizure of the samples till the analysis of the same had not been established and thus, there was nothing to conclude that the seals were intact during the investigation, in as much as there is no evidence on the record to indicate who deposited the samples with the Excise Laboratory and though PW1 HC Sri Bhagwan stated that the samples were sent to the Excise Laboratory through HC Madu Ram, though he was examined as PW5, he nowhere stated that he had deposited the samples at the Excise CA No. 01/2014 Page 6/11 Laboratory and rather stated that the investigation of the case was assigned to him after the transfer of the initial Investigating Officer HC Jugal Kishore; that HC Sri Bhagwan, the MHC(M) on the relevant day and relevant time in his testimony did not state that so long as the samples and case property remained in the Malkhana during his tenure, they were not tampered with; that there was a delay of a month in sending the samples to the Excise Laboratory; that SI Jugal Kishore was the Investigating Officer but the seal utilized by him is of JS, which was not thus explained; that the ld. Trial Court failed to consider that mere heavy recovery is not a ground to conclude that the version of the prosecution was the gospel truth; and that in the absence of cogent link evidence, the report of the Chemical Examiner cannot be considered against the appellant.
It was thus prayed on behalf of the appellant that the appellant be acquitted and the fine deposited by her be refunded to her.
On behalf of the State, it was submitted that all allegations levelled against the appellant stood established and that there was a heavy recovery of 14 cartons of illicit liquor from the appellant and that there was no infirmity in the impugned judgment and sentence.
ANALYSIS On a consideration of the entire available record i.e. the Trial Court Record and the submissions made during the course of the appeal, it CA No. 01/2014 Page 7/11 is apparent that in the instant case, there is a stated heavy recovery of the 14 cartons of illicit liquor from the appellant, with one carton being recovered from her hands and 13 from under the cot in her house at 585, Four Storey, Vishal Enclave, Delhi, yet the evidence on record suffers from material discrepancies in relation to the aspect of recording of the documents, in as much as, whereas Ct. Vijay, the person who allegedly first apprehended the appellant, stated that the documents such as the seizure memo, the arrest memo and other documents were prepared after he came back to the spot after getting the case registered at the Police Station, the Investigating Officer HC Jugal Kishore examined as PW4 as SI Jugal Kishore stated that he prepared the seizure memo Ex. PW3/D, then prepared the rukka Ex. PW4/A and then Ct. Vijay Kumar went to the Police Station for getting the FIR registered and then, he returned with the copy of the FIR and then he, HC Jugal Kishore entered the FIR number on the seizure memo.
Significantly, the Investigating Officer admits that two types of pen had been used in the preparation of the seizure memo and also admits that the seizure memo and the rukka are in two different pens. Significant further is the factum that the Investigating Officer utilized the seal of initials of JS and admits that he does not have a seal in his own name of JK and stated that he had used the seal of JS for sealing the case property without explaining as to why the seal of JS was used by the witness.
Another important aspect that cannot be overlooked is that as rightly contended on behalf of the appellant that the provisions of Section CA No. 01/2014 Page 8/11 53 of the Punjab Excise Act, 1914 have been completely violated in the instant case. Section 53 of the Punjab Excise Act, 1914 lays down as follows : "Duty of Officer Incharge of Police Station to take charge of articles seized - Every Officer Incharge of a Police Station shall take charge of and keep in safe custody, pending the orders of a Magistrate, or of the Collector or of an Officer empowered under Section 46(1) to investigate the case, all articles seized under this Act which may be delivered to him, and shall allow any Excise Officer who may accompany such articles to the Police Station, or may be deputed for the purpose by his superior Officer to affix his seal to the articles and to take samples of and from them. All samples so taken shall also be sealed with the seal of the Officer Incharge of the Police Station."
This provision of the Punjab Excise Act, 1914 mandates that all samples that are taken of the illicit articles recovered and seized under the Punjab Excise Act, 1914 must bear the seal of the Officer Incharge of the Police Station. There is nothing whatsoever on the record to indicate that there has been any compliance of the provisions of Section 53 of the Punjab Excise Act, 1914 by the Investigating Agency. In these circumstances, the discrepancies in the testimonies of the prosecution witnesses become fatal, especially as the link evidence of the case property remaining intact when deposited in the Malkhana is not even testified by HC Sri Bhagwan, the MHC(M) and the witness HC Madu Ram examined as ASI Madu Ram Yadav as PW5 does not state that he deposited the samples in an intact condition with the Excise Laboratory.
CA No. 01/2014 Page 9/11
Furthermore, the report of the Chemical Analyst i.e. of the Excise Control Laboratory, which is admissible in evidence in terms of Section 293 of the Cr.P.C. states that the samples were of Whisky but the samples bearing Nos. 45544 to 45552 were in a diluted condition, which aspect does not stand explained by the Investigating Agency in any manner. The factum that the appellant is a lady and no lady police personnel were joined into the investigation also speaks volumes against the investigation conducted.
Taking the totality of the discrepancies in the prosecution version and the fatal noncompliance of Section 53 of the Punjab Excise Act, 1914 into acount, in the circumstances, the appellant is held entitled to the benefit of a reasonable doubt and thus, is hereby acquitted in relation to the allegations levelled against her in relation to the FIR No. 1037/99 PS Rajouri Garden qua the alleged commission of an offence punishable under Section 61/1/14 of the Punjab Excise Act, 1914 vide the impugned judgment dated 13.12.2013 and impugned sentence dated 16.12.2013 are thus set aside and the fine of Rs. 3,000/ paid by the appellant in the ld. Trial Court proceedings is allowed to be refunded to her after the expiry of the time of appeal by the State.
The Criminal Appeal No. 01/2014 is thus allowed as directed hereinabove. The bail bond of the appellant submitted pursuant to order dated 13.01.2014, shall continue to be in operation in terms of Section 437(A) of the Cr.P.C., 1973 as being the bond in operation for a period of CA No. 01/2014 Page 10/11 six months to enforce appearance of the appellant before the Appellate Court in the event of there being any appeal or petition filed against the judgment of this Court.
The Trial Court Record be returned back alongwith a copy of this order.
The file be consigned to the Record Room.
Announced in the Open Court (Anu Malhotra)
today this the 24th day of District & Sessions Judge
March, 2014 (West) Delhi
CA No. 01/2014 Page 11/11