Delhi District Court
State vs . : Sarita on 31 August, 2012
IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN
MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS
NEW DELHI
State Vs. : Sarita
FIR No. : 266/07
U/s : 61 of Excise Act
PS : Okhla Industrial Area
Date of Institution: 12.07.2007
Date of Judgment reserved for: 31.08.2012
Date of Judgment: 31.08.2012
Brief details of the case
A. Sl. no. of the case 776/2/07
B. Offence complained of u/s. 61 of Excise Act
or proved
C. Date of Offence 01.04.2007
D. Name of the complainant Ct Bhagwan Singh
No.2483/SD PSOIA, New
Delhi
E. Name of the accused Sarita
w/o Sh Mohan Singh
r/o behind factory no B246,
Nepali Camp, OIA PhaseI,
New Delhi
F. Plea of the accused Pleaded not guilty
G. Final order Acquitted
H. Date of Order 31.08.2012
Judgment
The case of the prosecution is that on 01.04.2007, at around
8.15 pm, at jhuggis behind factory no B246, Okhla Industrial Area
(OIA)PhI, New Delhi, accused Sarita was found in possession of eight
cartoons containing bottles of illicit liquor. She was not possessing any
FIR No. 266/07 1/11
permit or licence for the liquor which was recovered from her.
Brief facts as unfolded during the trial
2. On the above said date, PW2 HC Bhagwan Singh was on
patrolling duty at ABC block of OIA. During the course of patrolling duty,
he reached near the jhuggis of factory no B246 where a secret informer
met him and disclosed that a lady carrying large quantity of illicit liquor
is sitting outside her jhuggi. In the meantime, PW1 HC Rameshwar
Dayal from Excise Department also reached there and revealed that he
was also possessing the same secret information. A raiding party was
constituted. 45 passersby were requested to join the investigation but
they all refused and went away without disclosing their names. At
around 8.15 PM, the police officials apprehended one lady who was
sitting outside her jhuggi with eight cartoons of illicit liquor. Thereafter,
PW3 HC Ramesh also arrived at the spot. The cartoons were checked
and it was found that 4 cartoons were containing bottles of beer (each
cartoon containing 12 bottles). Two cartoons were containing 96 quarter
bottles each while other two cartoons were containing 25 quarter bottles
each of illicit liquor. The samples were drawn and the remaining bottles
were sealed with the seal of 'RL'. In the said background, FIR No. 266/07
under Section 61 of Excise Act was registered at PS O.I.A.
3. Requisite documentation was done at the spot. The sealed
samples were sent for chemical analysis and on completion of the
FIR No. 266/07 2/11
investigation, chargesheet was put to the Court. The copies of
chargesheet were supplied to the accused. It is observed that in the
present matter, the accused Sarita was declared a Proclaimed Offender
vide order dated 08.02.2010. She was arrested and produced on
13.10.2000and the trial resumed. The record reveals that the trial concluded without formal charge being framed against the accused. It amounts to a serious irregularity vitiating the entire trial. Even otherwise on merits, the charges could not be substantiated.
Witnesses examined
4. In order to establish the charges, the prosecution examined four witnesses.
PW1 HC Rameshwar Dayal (First Recovery Witness) has supported the recovery. He mentioned that on 01.04.2007, he reached the spot after receiving a secret information. He has deposed that he met Ct Bhagwan Singh who also disclosed him about the same secret information. He mentioned that both of them constituted a raiding party and apprehended the accused. He stated that 8 cartoons containing illicit liquor were recovered from the possession of accused. The witness has given a description of various bottles found in cartoons. He has also mentioned about the sealing of the case property. He stated that samples were drawn and the remaining bottles were sealed with the seal of 'RL'.
PW2 HC Bhagwan Singh (Complainant/second recovery FIR No. 266/07 3/11 witness) has deposed on the lines of HC Rameshwar Dayal. He mentioned that he met HC Rameshwar Dayal and both of them constituted a raiding party. He has also supported recovery stating that 8 cartoons containing illicit liquor were recovered from the possession of accused.
PW3 HC Ramesh Lal (Investigating Officer) has deposed that he seized the illicit liquor vide seizure memo Ex PW1/A and sealed it with the seal of 'RL'. He stated that seal after use was handed over to HC Bhagwan Singh who returned it to him on the next day. He mentioned that the seizure memo was prepared before sending the rukka to the police station.
PW4 HC Zakir Hussain (Police official who took the sample to Excise Lab) has deposed that the seal was intact till the time he deposited at the laboratory.
5. Accused in her statement under Section 281 read with 313 of the Cr.P.C., 1973, pleaded innocence and claimed that she has been falsely implicated.
Arguments
6. I have heard Ld. APP for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. APP has contended that prosecution has proved its case beyond shadow of doubt. He has argued that all the material witnesses FIR No. 266/07 4/11 have entered into witness box and they have fully supported the case of prosecution. He has also argued that minor contradictions are bound to appear in any criminal matter and in the case in hand, there is no material contradiction which may create any doubt about the authenticity and veracity of the prosecution case and all the documents have been duly proved.
8. Ld. Defence Counsel has assailed the case of the prosecution. It has been argued that there is no justification as to why independent witnesses were not joined in investigation despite the fact that the police was having prior information. He has also argued that there are material contradictions and discrepancies and it becomes evident that illicit liquor had been planted upon the accused.
Brief reasons for the decision
9. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
10. Admittedly, no public witness has been joined in the investigation. The recovery witnesses have mentioned that passersby were passing from the spot but none of them joined the recovery proceedings. It has been mentioned by HC Ramesh Lal (PW3) that threefour passersby were requested to join the investigation but they all declined and went away without revealing their names and addresses. FIR No. 266/07 5/11 On appreciation of the testimony of police witnesses, it is evident that they have not joined any independent public witness despite availability. Stereo typed version churned by them does not inspire confidence. The record shows that no sincere efforts were made by the investigating officer to join independent witnesses. The police officials could have at least noted down the names of the persons who refused to join the investigation or they should have made efforts to join some independent witness from the locality. They have very casually mentioned that passersby were requested to join the investigation but they refused. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it has been held that such casual explanations that the public persons refused to join the proceedings are unreliable. Similarly, in Pradeep Narayan Vs. State of Maharashtra reported in AIR 1995 S.C. 1930, it was observed that failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the accused.
11. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure FIR No. 266/07 6/11 relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. It puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses and more so, when they were available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under : "Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused." FIR No. 266/07 7/11
12. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law. There is nothing on record to demonstrate that any genuine effort was made by the police officials to join an independent witness.
13. The record shows that there was ample time with the police officials to join an independent witness in the investigation. The recovery was made in the evening at around 8.15 pm. It is not the prosecution's case that no public witness was available at the spot. All the witnesses FIR No. 266/07 8/11 have categorically admitted that public persons were passing from the spot. Admittedly, there were number of other jhuggis surrounding the jhuggi of the accused. Inspite of the said fact, no efforts were made by the police officials to join an independent person in the investigation. The investigating officer has not joined any independent public witness despite availability. The safeguard provided under section 100 (4) Cr PC is not a mere formality. It is meant to ensure that credibility can be attached to the recovery proceedings. Failure to comply with the said provisions despite the fact that public persons were easily available at the spot is fatal for the prosecution's case.
14. The case property was produced for the first time during the examination of HC Rameshwar Dayal (PW1) and it was found that it was not carrying any seal. The said fact is fatal. It is the duty of the prosecution to prove that the recovered case property was properly sealed and the seal was not tampered with till the time it is produced in the Court. The same has not been done. HC Ramesh Lal has mentioned in the rukka that seal after use was handed over to HC Bhagwan Singh but no handing over memo has been prepared in this regard. The seal was kept by the police officials themselves and was not handed over to any independent person. The prosecution has failed to prove that the case property remained intact and was not tampered with till the time it was produced in the Court which was more important when the seal FIR No. 266/07 9/11 remained with the police official of the same police station. No efforts were made to hand over the seal after use to independent public persons and in such cases, in view of the law laid down in the judgement titled as Saifulla Vs. State 1998 (1) CCC 497 (Delhi) and Abdul Gaffar Vs. State 1996 JCC 497 (Delhi) benefit of doubt has to be given to the accused.
15. The record further reveals that on the recovery memo, the FIR number has been mentioned. HC Ramesh Lal (PW3) has stated that he seized the illicit liquor vide seizure memo Ex PW1/A and thereafter, prepared the rukka Ex PW3/B. HC Bhagwan SIngh (PW2) took the rukka to the police station and returned to the spot after getting the FIR registered. HC Rameshwar Dayal (PW1) has also narrated similar chain of events. It is the case of the prosecution that the seizure memo was prepared before the registration of FIR. In case, it was prepared before registration of FIR then how the FIR number has been mentioned therein. It has not been explained by the prosecution. In such circumstances, inference has to be drawn that either FIR was recorded prior in time or the seizure memo was prepared later on. The said fact casts doubt over the credibility of the investigation. The benefit of which ought to be given to the accused.
16. The record shows that there are number of infirmities in the version of the prosecution and missing links which creates doubt over the story of the prosecution. The benefit of which ought to be given to FIR No. 266/07 10/11 the accused. It is also observed that departure and arrivals of the police officials of the police station have not been proved to lend credence to the version of the prosecution.
17. In view of the above said discussion, I find it to be a fit case where the accused should be granted benefit of doubt. Accordingly, the accused Smt Sarita is granted benefit of doubt and stands acquitted of the charges under Section 61 of Excise Act, 1961.
18. Bail Bond stands cancelled. Surety stands discharged. Endorsement placed on the documents of the surety be cancelled and the same be returned to him, if retained on record. Case property be confiscated to the state and same be destroyed.
19. File be consigned to record room after necessary compliance.
Announced in open Court SUDHANSHU KAUSHIK)
on this day of 31.08.2012 METROPOLITAN MAGISTRATE02
SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 266/07 11/11
FIR No. 266/07 12/11