Delhi District Court
State vs Rita Devi on 16 April, 2013
IN THE COURT OF MS RUCHIKA SINGLA
METROPOLITAN MAGISTRATE -08, ROOM NO.212
DWARKA, DELHI
STATE versus Rita Devi
FIR No. 52/11
PS: Kapashera
U/s-33(f), Delhi Excise Act
1. Serial No. of the case : 0240 5R 0378602011
2. Date of commission of offence : 17.03.2011
3. Name of the complainant : Ct. Shiv Shankar No.1654/SW
PS Kapashera
4. Name of the accused, and his : Rita Devi w/o Sh. Santosh Paswan
parentage and residence R/o Jhuggi, Sonia Gandhi Camp,
Samalkha, New Delhi
5. Date of Reserving Judgment : 04.04.2013
6. Date when judgment was : 16.04.2013
pronounced
7. Offence Complained of : Section 33(f), Delhi Excise Act
8. Plea of accused : Pleaded not guilty.
9. Final Order : Acquitted
10. Date of Order : 16.04.2013.
-:: JUDGMENT ::-
Brief Statement of reasons for the decision of the case
1. Briefly stated, the case of the prosecution is that on 17.03.2011 at about 07.10 pm, in front of Shiv Mandir, Factory Road, near Telephone Exchange, Smalkha, New Delhi, the accused was apprehended by Ct. Shiv Shankar, who was present on the spot on his patrolling duty, with a white plastic katta containing 64 quarters of Rasbhara Santra Spiced Country liquor without any permit or license and thereby committed an offence punishable under Section 33(f), Delhi Excise Act (hereinafter referred to as the Act).
State v. Rita Devi FIR No. 52/11 P.S.: Kapashera 1
2. The investigation commenced on the information of Ct. Shiv Shankar. FIR was registered. Thereafter, the investigation was completed and the charge sheet was filed under Section 33(f) of the Act on 10.06.2011. Cognizance was taken against the accused under Section 33(f) of the Act and provisions of Section 207 Cr.P.C. were complied with after appearance of the accused. After hearing, arguments, a Charge for the offence under Section 33(f) of the Act was framed on 29.05.2012 against the accused to which she pleaded not guilty and claimed trial.
3. Thereafter, the matter was listed for prosecution evidence. The prosecution examined six witnesses. PW1 is ASI Jagdish Singh, the DO. PW2 is Ct. Shiv Shankar, the complainant. PW3 is L/Ct. Munish, who aided the IO in the investigation of the present case. PW4 is Ct. Rakesh, who deposited the samples of the case property with the Excise Laboratory. PW5 is HC Sunder Singh, the IO. PW6 is HC Himmat Singh, the MHCM. The evidence of each of PWs is analyzed and discussed later on at appropriate places. Statement of the accused was recorded and all the incriminating evidence was put to her on 27.02.2013, wherein the accused pleaded false implication. The accused did not lead any defence evidence. Thereafter, the final arguments were heard on 04.04.2013.
4. Ld. APP for the State addressed useful and pertinent arguments. It is the case of the prosecution that on 17.03.2011 at about 07.10 pm, in front of Shiv Mandir, Factory Road, near Telephone Exchange, Smalkha, New Delhi, the accused was apprehended by PW2 Ct. Shiv Shankar, who was present on the spot on his patrolling duty, with a white plastic katta containing 64 quarters of Rasbhara Santra Spiced Country liquor without any permit or license, hereinafter referred to as "illicit liquor". On the said recovery, PW2 informed the PS and PW5 HC Sunder Singh was sent for the investigation of the case along with PW3 L/Ct. Munish.
5. It is submitted by the Ld. APP that in view of the well-corroborated testimonies of PW1 Ct. Shiv Shankar, PW3 L/Ct. Munish and PW5 HC Sunder Singh the recovery of the illicit liquor from the accused is proved beyond reasonable doubts. The Ld. APP also relies on the Excise Laboratory Report dated 04.04.2011 whereby the liquor as allegedly recovered from the State v. Rita Devi FIR No. 52/11 P.S.: Kapashera 2 possession of the accused has been tested. Vide the report, the sample was opined to be that of country liquor. The report is admissible in evidence under Section 293, CrPC.
6. Further it is submitted by the Ld. APP that by virtue of Section 52, Delhi Excise Act 2009, a presumption arises against the accused that he has committed the offence under Section 33, unless the contrary has been proved, if the accused is unable to account satisfactorily for the possession of the liquor. As no defence evidence has been led by the accused, it is submitted by the Ld. APP that the accused has failed to rebut this presumption. Hence, it is submitted that as the recovery has been proved and the accused could not present any cogent reason for possession of the illicit liquor, a presumption rises against the accused that he has committed the said offence. In view of the same, Ld. APP prays for the conviction of the accused.
7. On the other hand, the Ld. Counsel for the accused prays for acquittal of the accused stating that the prosecution has failed to prove its case beyond reasonable doubts. Firstly, the Ld. Counsel for the accused argued that the prosecution has not proved the arrival or the departure entries of any of the officials and hence, this also vitiates the case of the prosecution. This is a matter of record. No arrival or departure entries have been proved of any of the material witnesses i.e. PW2 Ct. Shiv Shankar, PW3 L/Ct. Munish and PW5 HC Sunder Singh. The arrival and departure entries of the police officials who apprehended the accused with case property is a vital piece of evidence. Conspicuously, no departure or arrival entries in the daily diary register of PW2, PW3 and PW5 who allegedly apprehended the accused in possession of illicit liquor is furnished and proved on record. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose of PPR Rules. It is apposite at this juncture to reproduce chapter 22 Rule 49 of of Punjab Police Rules, 1934, provided as under :-
"22.49 Matters to be entered in Register No.II- The following matters FIR No. 105/2000 PS Kanjhawala 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 State v. Rita Devi FIR No. 52/11 P.S.: Kapashera 3 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."
8. Then, it is rightly argued by the Ld. Counsel for the accused that as per the testimonies of PW2, PW3 and PW5, the case property was firstly seized and then PW2 was sent for registration of FIR. However, the FIR no. is featured on the seizure memo Ex.PW2/B. Perusal of Ex.PW2/B i.e seizure memo shows that the same bears the FIR number and case details in the same ink in which the documents are prepared which indicates that the FIR number was inserted while preparing the documents. PW2 also stated in his cross-examination that no addition or alteration was made in the seizure memo after the registration of the FIR. However, the FIR no. does appear on Ex.PW2/B. No explanation has been furnished on record as to how the FIR registration number has appeared on this document. It leads to the inference that either the document was prepared later or the FIR has been registered earlier in point of time. Both the situations create dents and leave unexplained holes in the prosecution story, the benefit of which must accrue to the accused. This court finds force from the judgments on the same point of law such as Zofar v. State, 2000 II AD (Del) 137; Prithvi Pal Singh @ Munna v. State 2000 [1] JCC (Del) 274; Md. Hashim v. State 1999 VI AD (Del) 569; Ashok Kumar v. State 2000 I AD (Del) 10 and Kailash @ Kuddu v. State of Delhi 2000 [1] JCC [Delhi] 162. It would be appropriate to reproduce the relevant extract from the case titled as Zofar v. State, 2000 II AD (Del) 137 wherein the Hon'ble High Court has held as under:
"Surprisingly, the secret information (Ex. P.W. 7/B), the notice under Section 50 of the Act (Ex. P.W. 4/A) and the Seizure Memo (Ex. P.W. 4/C) bear the number of the FIR (Ex. P.W. 1/B). The number of the FIR (Ex. P.W. 1/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting which clearly indicates that these documents were prepared at the same time. The Prosecution has not offered any Explanation whatsoever as to under what circumstances number of the FIR (Ex. P.W. 1/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the 'spot before registration of the FIR. This gives rise to two inferences that either the FIR (Ex. P.W. 1/B) was recorded prior to the alleged recovery State v. Rita Devi FIR No. 52/11 P.S.: Kapashera 4 of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
9. Then, it is argued by the Ld. Counsel for the accused that no public person was asked by the IO to join the investigation, despite their availability. He submits that non-joining the public persons casts a doubt on the veracity of the case of the prosecution. True, no public witness has been cited as a witness. PW2 and PW5 stated in their cross-examination that some persons were requested to join the investigation but none agreed. Hence, it is not the case of the prosecution that no public witness was present at the spot of recovery or arrest. No names of the public witnesses who were requested to join the proceedings are available on record. No public witnesses were given notices to join the proceedings. The police officials are entrusted with ample powers under the provisions of CrPC to initiate proceedings under Section 187, IPC if any person does not cooperate with him despite giving notice. No efforts by the IO are seen on the file for joining the public witnesses. It is well settled that non-joining of public witnesses shrouds doubt over the fairness of the investigation by police. Even Section 100(4) casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. In this regard, cases titled as Narsi v. State of Haryana 1998 (4) Crimes 105 (SC), Ranjit v. State of Haryana 1995 (1) CC Cases 442 (HC) and Munni Lal v. The State 1995 JC 110 can be relied upon. Reliance on a judgment of the Hon'ble Supreme Court of India in State of Rajsthan v. Teja Singh 2001 (II) AD (SC) 125 is also relevant wherein it has been observed that:
"The failure of the prosecution to examine independent witnesses though available is fatal for their case."
10. In view of the above discussion, considering the facts that no public witness was joined in the investigation despite their availability, absence of the DD entries and the existence of the FIR no. on the seizure memo, a doubt is cast on the prosecution story and falters it. In view of the same, the prosecution has failed to prove beyond reasonable doubts that the illicit liquor was State v. Rita Devi FIR No. 52/11 P.S.: Kapashera 5 recovered from the possession of the accused only. As the fact of recovery itself has not been proved satisfactorily, Section 52, Delhi Excise Act does not come into play. Hence, the accused is acquitted for the offence under Section 33(f), Delhi Excise Act. Case property be confiscated as per rules. The bail bond already furnished by the accused is accepted further for the purposes of Section 437A, CrPC. The same shall remain in force for a period of six months.
File be consigned to record room.
ANNOUNCED IN THE OPEN (RUCHIKA SINGLA)
COURT ON 16.04.2013 METROPOLITAN MAGISTRATE-08
DWARKA COURTS, DELHI
State v. Rita Devi
FIR No. 52/11
P.S.: Kapashera 6