Delhi District Court
State vs . Saroj on 28 May, 2016
IN THE COURT OF MS. DEEPIKA SINGH
METROPOLITAN MAGISTRATE, DELHI
Unique I.D. No.02401R0597552009
FIR No. 144/06
PS : Uttam Nagar
u/s 61 Punjab Excise Act, 1914
State Vs. Saroj
JUDGMENT :
a. Sl. No. of the case : 791/3/06
b. Date of Commission of offence : 26.02.2006
c. Name of complainant : Ct. Rajnish Kumar,
d. Name of the accused, his/her parentage : Ms. Saroj,
W/o Late Sh. Jagat Ram,
R/o A-3/104,
Dal Mill Road,
Uttam Nagar, Delhi.
e. Offence complained of or proved : Section 61, Punjab
Excise Act, 1914
f. Plea of the accused : Pleaded not guilty.
g. Final Order : Acquitted
h. Date of such order : 28.05.2016
FIR NO. 144/06 State Vs. Saroj (Page 1 of 11)
Brief statement of the reasons for the decision
1. Briefly stated the case of the prosecution is that on 26.02.2006, at about 2:10 p.m, at Dal Mill Road, Near Export Factory, Uttam Nagar, Delhi, accused was found in possession of one plastic cane containing 12 bottles of illicit liquor, without any permit or license and thereby committed an offence punishable u/s 61 of the Punjab Excise Act, 1914. Charge sheet was filed accordingly.
2. Charge u/s 61 of the Punjab Excise Act, 1914 was framed against the accused on dated 18.02.2008 to which she pleaded not guilty and claimed to be tried.
3. Prosecution in support of its case examined four witnesses.
4. PW-1 HC Ramesh Chand, deposed that on 26.02.2006, he was posted at PS Uttam Nagar as Duty Officer and his duty timings were from 5:00 p.m. to 1:00 a.m. On that day at about 5:20 p.m. he received a rukka seny by HC Rohtash Singh though Ct. Rajnish Kumar on the basis of which he had registered the present FIR. He duly proved the same as Ex. PW1/A.
5. PW-2 HC Rajnish Kumar, deposed that on 26.02.2006, he was posted as Ct. at PS Uttam Nagar. On that day he was on area patrolling duty. During duty at about 2:10 pm, he reached near Dal Mill Road, Export Factory, Uttam Nagar, He saw accused Saroj, present in the court that day and correctly identified by him, coming from the side of Dal Mill Road and she was having white color plastic cane in her right hand. After seeing him, she turned to other side so on suspicion he stopped FIR NO. 144/06 State Vs. Saroj (Page 2 of 11) her and he inquired from her about the plastic cane but she did not tell any thing regarding same, so he made her to lay down the cane and open the lid of the cane and found the same to smelling liquor. He informed the same to DO at PS. Thereafter, HC Rohtas Singh had come on the spot. Thereafter, he handed over recovered cane containing liquor and accused to HC Rohtas Singh and told him about the incident. He recorded his statement Ex. PW2/A bearing his signatures at point-A. He requested 3-4 passerby to join the investigation but none agreed and left the spot after giving their genuine excuses and without disclosing their identity. Thereafter, IO asked him to bring a bucket, a mug and a bottle of 750 ml. from nearby kabari shop. He brought the same and handed over the same to HC Rohtas. Thereafter, the liquor in the cane was measured and found to be 12 bottles of 750 ml. One bottle was separated as a sample and rest of the liquor was poured back in the cane and both were sealed with the seal of RS. Form M-29 was also filled and thereafter seal after use was handed over to him by HC Rohtas. The above said was seized vide seizure memo Ex. PW2/B bearing his signatures at point-A. Thereafter, HC Rohtas prepared a tehrir and handed over the same to him and he came to PS for registration of the case. He got the FIR registered and returned back to the spot after registration of FIR and handed over the copy of FIR along with original tehrir to HC Rohtas. He prepared the site plan. He inquired from the accused and arrested the accused vide memo Ex. PW2/C bearing his signatures at point-A. Thereafter, she was released on bail at the spot. HC Rohtas recorded his supplementary statement. Thereafter, he along with HC Rohtas came to PS and case property was deposited in the Malkhana.
FIR NO. 144/06 State Vs. Saroj (Page 3 of 11) On 10.03.2006, he took the sample to the Excise Lab at Vikas Bhawan ITO and deposited the same there vide RC No. 436/21. Thereafter, he came back to the PS and handed over the receiving copy to the MHC(M).
He further deposed that he identify the case property if shown to him.
Thereafter, MHC(M) had brought one empty white colored plastic cane with broken part seal, which was broken from the bottom. It is containing mud no. 3905/06. The witness had correctly identified the case property which is Ex. P-1.
In his cross examination, he deposed that he left the PS at about 10:00 am for patrolling on foot. IO reached at the spot at 2:25 pm on scooter. First of all IO recorded his statement. It is correct that the spot was surrounded by residential area. It is correct that no lady Ct. had come on the spot. He handed over the seal to the IO at PS on the next day. No memo was prepared in this regard. He left the spot for PS with tehrir at about 4:50 pm. He came back at the spot at about 6.00 pm. The distance between PS and the spot is about 2 km. The whole writing work was done while sitting at the stairs of export factory at Dal Mill Road. They finally left the spot at about 6:40 pm. It is wrong to suggest that nothing was recovered from the possession of the accused or that she has been falsely implicated in the present case. It is further wrong to suggest that she was lifted from her house. It is further wrong to suggest that all the writing work was done while sitting at PS. It is wrong to suggest that he was deposing falsely.
6. PW-3 ASI Rohtash Singh, deposed that on 26.02.2006, he was posted as HC at PS Uttam Nagar. On that day on the receipt of DD FIR NO. 144/06 State Vs. Saroj (Page 4 of 11) No.24B regarding recovery of illicit liquor from the accused, he proceeded to the spot i.e Dal Meel Road, Near Export Factory, where he met Ct. Rajniesh, who handed accused with recovered plastic cane to him. Accused disclosed her name to be Saroj, accused present in the court that day and correctly identified by him. He asked 4-5 persons to join as a witness but none agreed and left the spot without disclosing their names and address. He checked the cane and found it to be smelling of liquor. Thereafter, he recorded statement of Ct. Rajnish already Ex. PW2/A. He asked Ct. Rajnish to bring empty bucket and bottle of 750 ml at the spot. He checked and measured the quantity of liquor and found it to be 12 full bottles. He separated one bottle as sample sealed it with the seal of RS. Rest of the liquor were put back into the same can and it was also sealed with the seal of RS. He filled form M-29 at the spot. He seized entire case property by the memo already Ex. PW2/B bearing his signature at point-B. Seal was handed over to Ct. Rajnish. Thereafter, He prepared tehrir is already exhibited as Ex. PW1/B. He handed over the tehrir to Ct. Rajnish for the registration of FIR. Ct. Rajnish went to PS and got the FIR registered. He came back at the spot and handed over to him copy of the FIR and original tehrir. Thereafter, he prepared site plan which is already Ex. PW3/A at the instance of Ct. Rajnish. Thereafter, he arrested the accused vide memo is already Ex. PW2/C bearing his signature at point-B. Thereafter, case property was deposited in the Malkhana and accused was released on bail. He recorded the statement of witnesses. He also collected the result from the excise office Ex. PW3/B and filed the charge sheet in the court after completion of investigation.
In his cross examination, he deposed that he left the PS at FIR NO. 144/06 State Vs. Saroj (Page 5 of 11) about 2:20 pm and reached the spot within 10 minutes. The spot was surrounded with residential area. Before sending rukka IO recorded the statement of 161 Cr.P.C, site plan and arrest memo. Ct. Rajnish went to PS at about 4:50 pm and came back within 1 hour. Seal was handed over to Ct. Rajnish on the next day. All the writing work was done while sitting on pavement. Arrest memo was prepared at about 5:30 to 5:45 pm. Finally they left the spot at about 6:45 pm. No lady constable was present during the whole proceedings. Case property was brought by him to the PS. It is wrong to suggest that accused was called from his house at PS and falsely implicated in the present case. It is further wrong to suggest that nothing was recovered from the possession of the accused. It is wrong to suggest that he was deposing falsely being police official at the instance of IO.
7. PW-4 ASI Satyabir Singh, deposed that on 26.02.2006, he was posted as MHC(M) at PS Uttam Nagar. On that day, HC Rohtash Singh deposited the case property i.e one plastic cane and one sample bottle and form M-29 duly sealed with the seal of RS and in this regard he made entry in register no. 19 at serial no. 3905. Copy of the same is Ex. PW4/A. On 10.03.2006, one sample bottle of the present case sent to Excise Office through Ct. Jeetpal vide RC no. 436/21 for depositing the same at Excise Office. After depositing the same he handed over the copy of RC received to him.
8. After prosecution evidence, statement of accused under section 313 Cr.P.C was recorded. All the incriminating evidence was put to the accused. Accused denied all the allegations stating that she has been FIR NO. 144/06 State Vs. Saroj (Page 6 of 11) falsely implicated in this case. However, accused did not want to lead any evidence in her defence.
9. Arguments advanced by Ld. APP for the State and Ld. Defence counsel were heard. Record perused. Ld. defence counsel has argued that the case of prosecution is entirely based upon the testimony of police witnesses and is not independently corroborated. On the other hand, Ld. APP has submitted that the prosecution has been able to prove its case.
10. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
11. After going through the complete evidence and records of this case, I am of the view that accused namely Ms. Saroj deserves acquittal in this case on the following grounds :-
12. Firstly, if the police personnel who has apprehended the accused with the illicit liquor was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
As per the chapter 22 Rule 49 of the Punjab Police Rules, which FIR NO. 144/06 State Vs. Saroj (Page 7 of 11) is reproduced as under:
"Chapter 22 Rule 49 Matter to be entered in Register no.11. 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 a 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 personally by signature or seal.
Note: The term police station will include all places such as Police Lines and Police Posts where Register no.11 is maintained.
13. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in register no.11, they were patrolling in the particular area. In the present case also, this provision has not been complied with by prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble High Court held that :
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution".
14. Secondly, the prosecution has examined four witnesses, however no FIR NO. 144/06 State Vs. Saroj (Page 8 of 11) independent witness has been examined even though recovery witness has deposed that the accused was apprehended near residential area and IO had requested 4-5 passerby to join the investigation. It is not clear as to why no legal action was taken against such persons who had refused to be a witness. In the case of Hemraj vs State of Haryana (AIR 2005 SC 211:0) it was observed that "the fact that no independent witness though available, was examined and not even an explanation was sough:t to be given for not examining such witness is a serious infirmity in the prosecution case".
15. In Roop Chand Vs. The State of Haryana 1999 (12) C.L.R, the Punjab and Haryana High Court held as under:-
"It is well settled principle of the law that investigating Agency should join independent witness at the time of recovery of contraband articles, if they were 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 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 police 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 FIR NO. 144/06 State Vs. Saroj (Page 9 of 11) against them under the relevant provision 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 worthy of credence. All these facts taken together make the prosecution case highly doubtful".
16. Since all the witnesses are police personnels and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the view that charges of false implication cannot be ruled out at the instance of the police.
17. Further as per the case of the prosecution, it is not clear to whom the seal after use was handed over and when the seal was returned to the IO. No memo has been prepared and proved on the record. The prosecution was bound to prove on the record as to when the seal was returned to the IO to remove the element of the tampering with the case property. Not only this, there is an unexplained delay in sending the sample to the excise laboratory. The incident is of 26.02.2006 and the sample was sent to the Excise laboratory on 10.03.2006. There is no evidence that the sample remained intact till delivery to the office of chemical examiner. Till that time, the sample remained in police possession. It was the duty of the police to send the samples to the laboratory without any unexplained delay which could rule out any tampering with the case property which was not done in the present case and the case property remained in the police station at the disposal of the police.
FIR NO. 144/06 State Vs. Saroj (Page 10 of 11)
18.Furthermore, there are couple of inconsistencies in the prosecution version. Case property when examined in the court, it was found that seal was partly broken, hence, recovery of illicit liquor as alleged by prosecution is doubtful. No source of light has been shown in the site plan. It is not clear as to on what suspicion the accused was apprehended. Further the departure and arrival entries of the official witnesses have not been proved. The testimony of the official witnesses in the present case is not strong enough to base the conviction of the accused. In the criminal law, the prosecution has to prove the guilt of the accused beyond reasonable doubt, however, in the present case prosecution has miserably failed to do so.
19. In view of above mentioned facts and circumstances, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Ms. Saroj stands acquitted of the offence u/s 61 of the Punjab Excise Act, 1914. However, she shall furnish a fresh bail bond, which shall remain in force for a period of six months from today U/s 437A Cr. P. C. Documents if any be returned after cancellation of endorsement. The case property be confiscated and be destroyed after expiry of period of appeal.
Announced in open court on 28.05.2016.
(Deepika Singh) MM-06(West) THC, Delhi.
FIR NO. 144/06 State Vs. Saroj (Page 11 of 11)