Delhi District Court
State vs Sanjay Singh on 11 February, 2020
IN THE COURT OF SH. VINOD KUMAR GAUTAM, ACMM / NORTH
EAST KARKARDOOMA COURTS, DELHI
State Vs Sanjay Singh
FIR No : 237/19
U/S : 33 of Delhi Excise Act
PS : Sonia Vihar
1 FIR No. of the case : 237/19
2 Date of commission of offence : 20.09.2019
3 Date of institution of the case : 17.12.19
4 Name of the complainant (if any) : HC Manoj Kumar
5 Name of accused person, : Sanjay Singh s/o Sh. Shiv
his parentage and address Bhole r/o H.No.B/698, Gali
No.12, 1st Pusta, Sonia
Vihar, Delhi
6 Offence complained of or proved : U/s. 33 Delhi Excise Act
7 Plea of the accused : Pleaded not guilty
8 Date of arguments : 06.02.2020
9 Date of judgment/final arguments : 11.02.2020
10 Final order : Acquitted
Brief statement of the reason for decision :
Judgement :
Vide this judgment, I shall decide this case under Section 33 of Delhi
Excise Act. Brief facts of the prosecution case are as under :
FIR no. 237/19 S/v. Sanjay Singh Page no. 1/5
1.Prosecution has alleged that on 20.09.19 at about 9.30 am at Zero Pusta Park, Yamuna Khadar, Sonia Vihar, Delhi, accused was found in possession of 200 quarter bottles of illicit liquor for sale in Haryana only without any permit or licence. The accused was arrested under Section 33 of Delhi Excise Act and chargesheeted after investigation.
2. Accused appeared before this Court and after compliance under Section 207 Cr.P.C., charge under section 33 of Delhi Excise Act was framed against him vide order dated 14.01.20 and accused pleaded not guilty and claimed trial.
3. To prove the case, prosecution has examined two witnesses. PW1 Ct. Parvinder has assisted in the investigation and in the apprehension of the accused and PW2 is the complainant and IO of the case. Accused has admitted the genuineness of the registration of the FIR and the chemical inspection report and therefore, formal proof of the same was dispensed with. Thereafter, P.E was closed as all the material witnesses have been examined. After closure of PE, Statement of accused u/s 313 Cr.PC was recorded. Accused has not led any defence evidence.
4. I have heard the arguments and perused the record. As per the prosecution story, accused was apprehended by the police officials during patrolling on secret information and illicit liquor was recovered from of his possession. All the PWs are police officials. Ld. Counsel for accused has submitted that accused has been falsely implicated in this case. Although it is not a legal requirement that the testimony of police officials is not reliable, yet the testimony of police officials is to be considered with caution, in view of the facts of the present case. In the FIR no. 237/19 S/v. Sanjay Singh Page no. 2/5 present case, accused was apprehended at public place and public witnesses were available, but public persons were not made witness to the recovery or arrest of accused and even no notice was served upon the public persons who allegedly refused to participate in the proceedings. Facts and circumstance of the case suggests that no sincere efforts have been made by police official to join independent public witnesses in the police proceedings. In the case reported as Anoop Joshi vs. State, 1992 (2) C. C. Cases 314 (HC), Hon'ble High Court of Delhi has deprecated the practice of the police officials of not making any sincere efforts to join the public witness when they are available. Similarly, in the case reported as Sadhu Singh vs. State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court has also not viewed with favour the practice of the police of not joining any public witness and not making any sincere efforts in that regard when they are readily available. Non joining of the public witnesses and not making any sincere efforts in this regard creates a doubt about the case of the prosecution.
5. Further from the record, it appears that after the apprehension of the accused but before taking the formal / casual search of the accused, police official(s) had not offered their own search to the accused before taking his search. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty vs. State of Orissa. In this case relying upon the judgment of the Supreme Court in State of Bihar Vs. Kapil Singh AIR 1969 SC 53 : (1969 Cri. L.J 279) it has been held that one of the formalities that has to be observed in searching a person is that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused.
FIR no. 237/19 S/v. Sanjay Singh Page no. 3/5
6. Furthermore, PW2 HC Manoj Kumar in his testimony has stated that seal after use was handed over to PW1 Ct. Parvinder. However, no handing over memo regarding the handing over of seal was prepared by the IO which creates doubt that whether the seal was handed over to any person or it remained with the IO. Thus, the genuineness of the investigation is under doubt and the veracity of the case of the prosecution has been weakened.
7. Another aspect of the case is that as per the prosecution witnesses , the seizure memo of case property Ex PW 1/A was prepared prior to the registration of the FIR. However, the said document mentions the FIR number in the same flow and ink. It thus appears that there was no occasion for the FIR number to be mentioned on the seizure memo inasmuch as the IO did not know the FIR number at time of the preparation of the said document even as per the prosecution version. In the matter of Giri Raj vs State 2000 (83) DLT 201, the Hon'ble High Court of Delhi held that where the FIR number was mentioned on the documents prepared prior to registration of the FIR then it gives rise to two inferences either that the FIR was recorded prior to recovery of the articles or that number of the FIR was inserted in the documents later on. In both the cases, it seriously reflects on the veracity of the prosecution version and creates a doubt about the alleged recovery. In the present case also the mentioning of the FIR number on the seizure memo affects the veracity of the version of the prosecution regarding the manner in which the recovery was effected, the benefit whereof has to go to the accused.
8. In Mohan Lal vs. State of Punjab, the Hon'ble Apex Court has observed that if the informant were to be made the investigating officer, it was bound to FIR no. 237/19 S/v. Sanjay Singh Page no. 4/5 reflect on the credibility of the prosecution case. It was further observed that the Head Constable being the complainant himself could not have proceeded with the investigation and it was a practice, to say the least, which should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. In the present case, also the contention of the accused is that the complainant himself would be an interested person and should not have been made the investigating officer of the case. In the present case, the complainant is also the investigating officer of the case which raises a doubt on the case of the prosecution.
9. In fact, in this case, in the absence of public persons as recovery/arrest witness of accused, false implication of the accused may not be ruled out. In fact, prosecution has failed to prove the allegations against the accused beyond reasonable doubt. I hereby give benefit of doubt to the accused. Accused is hereby acquitted of all the charges. Case property is forfeited to the State and be destroyed as per rules after appeal. File be consigned to record room after due compliance.
(ANNOUNCED IN OPEN COURT (VINOD KUMAR GAUTAM)
ON 11th FEBUARY, 2020) ACMM( NORTH EAST)
KARKARDOOMA COURTS, DELHI
Digitally
signed by
VINOD
VINOD KUMAR
KUMAR GAUTAM
GAUTAM Date:
2020.02.11
15:30:38
+0530
FIR no. 237/19 S/v. Sanjay Singh Page no. 5/5
State Vs. Sanjay Singh
FIR No. : 237/19
CR No. 3793/19
P.S. : Sonia Vihar
11.02.2020
Present: Ld. Sub. APP for the State.
Accused on bail with counsel.
Vide my separate judgment, the accused is acquitted in the present case. Case property is forfeited to the State and be destroyed as per rules after appeal.
The bail bonds already furnished by the surety of the accused is accepted for the purpose of section 437A Cr.PC for the period of six months.
File be consigned to record room after due compliance.
(Vinod Kumar Gautam)
ACMM/NE/KKD COURTS
11.02.2020
FIR no. 237/19 S/v. Sanjay Singh Page no. 6/5