Delhi District Court
State vs . Bhupender on 5 February, 2010
FIR No. 115/00
PS Kanjhawala
Page no.1
IN THE COURT OF SHRI DEEPAK WASON
METROPOLITIAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 115/00
U/s. 61/1/14 Excise Act
PS: Kanjhawala
State vs. Bhupender
Date of Institution of case:-28.05.01
Date of Judgment reserved:- 05.02.10
Date on which Judgment pronounced:- 05.02.10
JUDGMENT
Sl. No of Case :219/2 Date of commission of offence :28.06.00 Name of complainant :HC Chand Singh, no.389/NW, P.S. Kanjhawala, Delhi.
Name and address of accused :Bhupender, S/o. Sh. Ram Kumar, R/o. Village Khedi Aasra, District Jhajjar, Haryana.
Offence complained of :61/1/14 Punjab Excise Act.
Plea of accused :Pleaded not guilty Date of order :05.02.2010 Final order :Acquitted BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
The accused has been sent to face trial under Contd..../-FIR No. 115/00
PS Kanjhawala Page no.2 Section 61/1/14 Excise Act on the allegations that on 28.06.00 at about 9.25 a.m., at Village Ghevra Main Bus Stand, he was found in possession of 2200 pouches of Country liquor and 240 quarters of Whisky which he was carrying without any permit or licence and on the basis of the said allegations, the present FIR bearing no. 115/00 was registered at Police station Kanjhawala and the accused has been charged with the offences under Section 61/1/14 Punjab Excise Act.
2. After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to the accused in compliance of Section 207 Cr.P.C. and charge U/s. 61/1/14 Punjab Excise Act was framed against the accused to which the accused has pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused and the prosecution has examined five witnesses. However, the list of witnesses contain eight witnesses.
4. PW 1 is Constable Satish Kumar. He was the witness of initial recovery and has accompanied the Contd..../-
FIR No. 115/00PS Kanjhawala Page no.3 complainant / IO HC Chand Singh and he has deposed about the recovery of illicit liquor from the possession of the accused. He has further deposed about the proceedings conducted by the IO at the spot.
5. PW 2 is Retd. HC Suraj Singh. The said witness is the duty officer who has registered the present FIR no.115/2000 under Section 61/1/14 Punjab Excise Act. He has proved the registration of the FIR as Ex. PW 2/A.
6. PW 3 is HC Jeet Singh. The said witness is the concerned MHC(M). He has deposed that on 28.6.00, IO HC Chand Singh had deposited 11 plastic kattas, 5 cartons and one plastic jar as sample duly sealed with the seal of CS alongwith form M-29 and one Maruti car bearing no. DNA- 7785 for which he had made entry at serial no.578/2000 in register no.19. He has further deposed that on 14.07.00 samples were sent to Excise office, ITO through Ct. Jagjit Singh vide RC no.53/21/00. He has proved the photocopy of register no.19 as Ex. PW 3/A. He has deposed that so far the case property remained with him, it was not tampered with.
7. PW 4 is Ct. Jagjeet Singh. The said witness has deposited the samples alongwith excise form at the excise Contd..../-
FIR No. 115/00PS Kanjhawala Page no.4 office.
PW 1 to PW 4 were not cross examined by the accused.
8. PW 5 is HC Chand Singh, complainant / first IO of the case. He has deposed that on 28.06.00 he alongwith Ct. Satish Kumar were on patrolling near Ghevra Bus Stand and received a secret information regarding one Maruti car bearing registration no. DNA-7785 would come from Ghevra Phatak side carrying illicit liquor. He requested 4/5 public persons to join the investigation but none has agreed. Thereafter, he formed a raiding party consisting of himself, Ct. Satish and the secret informer. At about 9.25 p.m., they noticed the aforesaid car coming from the pre-disclosed direction and apprehended the accused. He further deposed that casual search of the car was conducted and found 11 plastic bags and 5 cartons of illicit liquor which were found containing 200 pouches of Janeman Soufi Masaledar Haraya, carton boxes were found containing 48 quarter bottles of Special Malted Whisky. He further deposed that two pouches and two quarter bottles were taken out for sample and sealed with the seal of CS. He further deposed that the illicit liquor was seized vide seizure memo Ex. PW 1/A. He has also deposed about the preparation of original Contd..../-
FIR No. 115/00PS Kanjhawala Page no.5 rukka. He has further deposed that the seal after use was handed over to Ct. Satish Kumar. He further deposed that he had recorded DD no. 5A which is Ex. PW 5/A. Thereafter, second IO HC Mahavir Singh came at the spot and he had handed over the accused with illicit liquor and the recovered car to him. He has further deposed that on his instance, second IO HC Mahavir Singh has prepared the site plan Ex. PW 5/B and recorded his statement. This witness was cross examined by the accused at length.
9. No other witness was examined by the prosecution and accordingly, prosecution evidence was closed vide order dt. 15.01.10.
10. Subsequent to the recording of statement of witnesses, statement of accused under Section 313 Cr.P.C. was recorded and all the incriminating evidence coming on record was put to the accused in which he has submitted that has been falsely implicated in the present case. He has further submitted he does not wish to lead any evidence. Thereafter, the matter was posted for final arguments.
11. I have heard the final arguments advanced by both the parties and perused the record.
Contd..../-
FIR No. 115/00PS Kanjhawala Page no.6
12. In the present matter, it has come in the evidence that the police officials have requested 4/5 public persons to join the raiding party, but none agreed and left away the spot without disclosing their names and addresses. In these circumstances like the present one, the police official should have made an effort to join public witnesses during the recovery proceedings and if public persons would have refused to assist the members of the police party, they could have served the said public witnesses with a notice in writing to join the police proceedings. This thing has not been happened in the present case.
13. In case law reported as "Anoop Joshi Vs. State"
1992(2) C.C. Cases 314 (HC), High court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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 declined to join the raiding party, the Contd..../-FIR No. 115/00
PS Kanjhawala Page no.7 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".
14. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This Contd..../-FIR No. 115/00
PS Kanjhawala Page no.8 explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worth of credence. All these facts taken together make the prosecution case highly doubtful".
Hence, in view of the law discussed above, it casts a shadow of doubt in the prosecution case.
15. In the present case, no efforts were made to hand over the seal after use to independent public persons. PW 5 HC Chand Singh has deposed that the seal after use was handed over to PW 1 Ct. Satish Kumar. In such circumstances, the possibility of tampering the case property cannot be ruled out. In such cases, in view of Contd..../-
FIR No. 115/00PS Kanjhawala Page no.9 Saifulla Vs. State reported in 1998 (1) CCC 497 (Delhi) and Abdul Gaffar Vs. State reported in 1996 JCC 497 (Delhi) benefit of doubt is to be given to the accused.
16. Further, as per the deposition of PW 1 and PW 5 on 28.06.00 they were on patrolling duty near Ghevra Bus Stand meaning thereby that at the time they were not in the police station. Be that as it may, now if the said police officials were not present within the P.S. at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival to & from the P.S. Kanjhawala in the D.D. Register of the said P.S. As per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No.II- The following matters shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note:- The term police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
Contd..../-
FIR No. 115/00PS Kanjhawala Page no.10
17. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of PW1 and PW5 from and to the police station of Kanjhawala. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of PW1 & PW5 at or near the place of the recovery at 9.15 p.m. on 28.06.00.
18. In the facts and circumstances of the case, the prosecution ought to have brought on record & prove the aforementioned DD entries by which the PW1 & PW5 had left the PS before the recovery and by which they had arrived at the P.S. after the recovery, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused, since the said police officials were under bounden duty to enter their departure & arrival from/at the police station by making a D.D. Entry in that respect as per the aforesaid mentioned P.P. Rule.
19. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that Contd..../-
FIR No. 115/00PS Kanjhawala Page no.11 if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery.
20. It is matter of record that the second IO has not been examined in this case which is also fatal to the prosecution case. Further, cross examination of PW 5 shows that PW 5 took the keys of the car in his possession and he has not written the chasis no. and engine no. in the seizure memo. According to him, samples were put in the plastic box and the same was purchased from a nearby kabadi shop and the said kabadi was not joined as a public witness in the present case when he was available at the relevant time. These facts also give some doubt in the prosecution story. It is the case of the prosecution that one car was coming from Ghevra Phatak side but in the site plan which Contd..../-
FIR No. 115/00PS Kanjhawala Page no.12 is Ex. PW 5/B, car has not been mentioned anywhere. Further, the fact that key was taken into possession and despite that, it has not been mentioned in the seizure memo castes doubt upon the prosecution story. It has come in the cross examination of PW 5 that the case property was produced before the court without seal. It has further come in the cross examination of PW 5 that carton boxes having FIR no.115/00 dt. 31.05.01 of PS Kanjhawala was produced before the court with the deposition of PW 5 that it is not the case property in the present case. Further, the arrest memo Ex. PW 1/D shows that the column regarding time of arrest is blank and it appears that investigation has been done in a very casual manner. In view of the lacunas discussed above, I hold that the prosecution story is doubtful.
21. In view of the above said discussion, I am of the considered view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused stands acquitted from the charges U/s. 61/1/14 of Punjab Excise Act.
22. Bail bond cancelled and surety discharged. Endorsement if any, be cancelled and documents if any, be Contd..../-
FIR No. 115/00PS Kanjhawala Page no.13 returned, against acknowledgment.
File be consigned to Record room after necessary compliance DEEPAK WASON METROPOLITAN MAGISTRATE ROHINI DELHI ANNOUNCED IN THE OPEN COURT TODAY i.e on 05th February, 2010.
Contd..../-