Delhi District Court
State vs . Johny on 18 May, 2011
1
IN THE COURT OF MS. VANDANA JAIN, MM08
WEST DISTRICT, TIS HAZARI COURT
State Vs. Johny
FIR No.120/06
PS: Kirti Nagar
U/S: 61 Excise Act
Sr. no. of the case : 529/2
Date of commission of offence : 13.03.06
Date of institution of the case : 20.09.06
Name of the complainant : Ct. Bahadur Singh
Name of accused and address : Johny s/o Late Sh.
Chunni Lal r/o Jhuggi
no. B500, Chunna
Bhatti, Kirti Nagar,
New Delhi
Offence complained of or proved : U/S 61 Excise Act
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Date of judgment : 18.05.2011
J U D G M E N T:
1. Brief facts of the prosecution story is that on 13.03.06 at 6:15 FIR NO: 120/06 State vs Johny 1/7 2 PM near wall of DSIDC Railway Track, Kirti Nagar the accused was found in possession of 167 half bottles of illicit liquor without any permit or license.
2. Charge u/s 61 Excise Act was framed against the accused on 22.11.07 to which the accused pleaded not guilty and claimed trial.
3. Prosecution has cited 6 witnesses in support of its case and out of them 4 witnesses have been examined.
4. PW1 ASI Jangir Singh has deposed that on 13.03.06 after receiving the DD no. 56B he reached at DSIDC Wall near Rly Track, Kirti Nagar where he met Ct. Bahadur Singh alongwith two plastic bags which were containing the illicit liquor. He further deposed that he recorded the statement of Ct. Bahadur Singh. He further deposed that he checked both the plastic bags, one of them contained three peti and same was containing 72 half bottles make Shaukeen Masaledar desi Sharaab and another bag was containing two pettis and same was containing 96 quarter bottle of Shaukeen Masaledar Desi Sharaab each. He further deposed that one quarter and one half were taken out as sample and remaining case property were sealed with the seal of JS. He further deposed that seal after use was given to Ct. Bahadur Singh. He further deposed that he recorded the statement of Ct. Bahadur Singh. He further FIR NO: 120/06 State vs Johny 2/7 3 deposed that he prepared the rukka and handed over the same to Ct. Bahadur Singh for registration of FIR. He further deposed that after registration of FIR, Ct. Bahadur Singh came back with copy of FIR and original rukka. He further deposed that he prepared the site plan. He further deposed that he prepared the excise form and sample was sent to excise office through Ct. Manoj. He further deposed that the case property was deposited in the malkhana. MHC(M) produced the case property i.e. two plastic kattas with the seal of JS and was correctly identified by the witness. It was observed that out of all the quarters five are broken and empty and whereas out of all half bottles, four are broken and the kattas are double in size.
5. He was cross examined by the ld. defence counsel wherein he deposed that he reached at the spot at about 6:25 PM. He further deposed that they finally left the spot at about 8:30 PM. He admitted that the there was a dark at the spot and the proceedings were conducted under street light. He further admitted that in the site plan he have not shown the source of light. He further deposed that proceedings were conducted while sitting on the ground. He further admitted that there is neither any case diary nor memo regarding return of seal. He further deposed that he took the case property to the malkhana in a rickshaw for FIR NO: 120/06 State vs Johny 3/7 4 which he was paid.
6. PW3 HC Bahadur Singh has deposed that on 13.03.06 he was on patrolling duty in the area of DSIDC complex. He further deposed that he reached at railway station at about 6:15 PM he saw one person who was having two plastic katta. He further deposed that he know the accused prior to the incident w ho is BC of PS Kirti Nagar. He further deposed that after opening the mouth of katta, gatta peti of liquor which were containing half and quarter bottle of liquor was found. He further deposed that he informed to DO and HC Jangir Singh came there. He further deposed that both the plastic bags were checked by IO and one of them was containing three petti and same was containing 72 half bottles of illicit liquor and another bag was containing two petti and same was containing 96 quarter of illict liquor. He further deposed that the sample as well as the case property were sealed with the seal of JS. He further deposed that seal after use was handed over to him. He further deposed that IO recorded his statement. He further deposed that IO prepared the rukka and FIR was got registered through him. He further deposed that IO prepared the site plan at this instance and the accused was formally arrested vide arrest memo. MHC(M) produced the case property i.e. two plastic kattas with the seal of court and were correctly identified by the FIR NO: 120/06 State vs Johny 4/7 5 witness. It was observed that out of all the quarters five are broken and empty and whereas out of all half bottles, four are broken and the kattas are double in size.
7. He was cross examined by the ld. defence counsel wherein he admitted that both the kattas recovered from the accused are torn out from the bottom and therefore they have been kept in a bigger katta. He further deposed that they finally left the spot at about 10 PM. He further deposed that no gist was prepared regarding the returning of seal. He further deposed that the proceedings were done under the light of kabari which was just close to the spot but he was not called the witness of the proceedings. He further deposed that the samples quarters and halfs were not put in any bag but were taken to PS in open condition.
8. PW3 HC Kartar Singh is the duty officer and has proved the copy of FIR.
9. PW4 HC Manoj Kumar has deposed that on 17.03.06 on the directions of IO, he had collected the sample alongwith form M29 duly sealed with the seal of JS and same was deposited in excise office and the same , one copy of acknowledgment was handed over to MHC(M). He was cross examined wherein he admitted that he had noted the particulars of this case on the palm of his left hand. Thereafter, PE was FIR NO: 120/06 State vs Johny 5/7 6 closed.
10. Statement of accused U/S 281 Cr.P.C has been recorded in which he has stated that all the allegations levelled upon her are false and fabricated and He further stated that he did not wish to lead any defence evidence.
11. I have heard arguments advanced by Ld. APP for the State and learned counsel for the accused. I have also perused the record carefully.
12. PW2 HC Bahadur Singh has stated that he was on patrolling duty however the departure entry has not been proved by him. It, therefore, casts a doubt.
13. PW2 HC Bahadur Singh stated that IO prepared the site plan at his instance however the site plan does not bears his signatures. It creates a doubt.
14. Case property was brought in the court in two plastic katta and 5 bottles were found to be empty and 4 half bottles were found to be broken. MHC(M) failed to give any explanation for the same. PW2 HC Bahadur Singh in his cross examination admitted that both the kattas brought in the court were torn out from bottom however MHC(M) failed to give any explanation for the same. Recovery of liquor from the possession of the accused has become doubtful.
FIR NO: 120/06 State vs Johny 6/7 7
15. PW2 HC Bahadur Singh had stated that they finally left the spot at 10 PM whereas ASI Jangir stated that they finally left the spot at 8:30 PM. The arrest memo Ex. PW2/A shows the time of arrest of the accused as 9:30 PM whereas ASI Jangir Singh stated that he left the spot at 8:30 PM. The statement as well as time mentioned in the arrest memo are not consistent. Therefore, a strong doubt is raised.
16. PW4 HC Manoj Kumar admitted in his cross examination that he had noted down the particulars of the case on the palm of his hand . This is not allowed as per law. Hence, testimony of PW4 HC Manoj Kumar can not be relied upon. There are several loopholes in the prosecution version which are material in nature and goes to the root of the matter. Accused is given benefit of doubt. Accused is acquitted for the charge framed for the offence u/s 61 Excise Act.
Announced in the open (Vandana Jain)
court on 18.05.2011 MM08/West/Delhi
FIR NO: 120/06 State vs Johny 7/7
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FIR No:120/06
PS: Kirti Nagar
18.05.2011
Present: Ld. APP for the state
Accused with counsel
SA recorded. Final arguments heard.
Vide separate judgment, accused is acquitted. Surety stands discharged. Original documents if any be returned after cancellation of endorsement. File be consigned to record room.
Vandana Jain
MM08/West/Delhi
18.05.2011
FIR NO: 120/06 State vs Johny 8/7