Delhi District Court
State vs . Phool Chand on 25 February, 2014
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE (WEST) 03,
TIS HAZARI COURTS, DELHI.
FIR No.78/2009
PS - Kirti Nagar
U/s - 7861114 Excise Act, 1914
State Vs. Phool Chand
Unique Case ID No.02401R0348222009
J U D G M E N T
(a) Sr. No. of the case 7/2/14
(b) Date of offence 22.03.2009
(c) Complainant ASI Birpal, Special Staff, West District, Delhi.
(d) Accused Phool Chand S/o Sh. Shankar Lal R/o Jhuggi No.
KH261, Camp Chunna Bhatti, Kirti Nagar, New Delhi.
(e) Offence(s) Under Section 7861114 of The Punjab Excise Act,
1914.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 09.06.2009
(i) Date when judgment Not reserved
was reserved
(j) Date of judgment 25.02.2014
1. The allegations against accused are that on 22.03.2009 at 10:30 pm in front of Jhuggi No. KH - 261, Chunna Bhatti, Kirti Nagar, New Delhi, accused was found in possession of four Gatta Petties, One Gatta Petty containing 48 quarter FIR No.78/2009 Page No. 1 of 14 bottles of Bonnie Scott Whiskey and two Gatta Petties each gatta petty containing 50 quarter bottles of Samalkha Desi Masaledar Sharab seized as per seizure memo without any permit or license for the same. According to prosecution, accused thereby committed offence punishable under Section 7861114 of Punjab Excise Act, 1914 extended to Delhi.
2. After completion of investigation, chargesheet was filed. Charge for the offence under Section 61 of Punjab Excise Act, 1914 was framed against the accused vide order dated 21.08.2009 to which accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
3. Prosecution adduced evidence in support of its case. In this matter, PW1 HC Ramesh has deposed that on 03.05.2009, he was posted at PS Kirti Nagar and on that day, the investigation of the present case was marked to him for further investigation. He obtained the results from the excise office and same is Ex.PW1/A. Thereafter, he filed the charge sheet on behalf of SHO. PW1 was examined, not crossexamined by the accused despite opportunity given and was discharged.
4. PW2 HC Sanjay has deposed that on 22.03.2009, he was posted in Special Staff, West District and on that day, one secret informer came at their office and gave information that illicit liquor can be recovered from the jhuggies at Kirti Nagar. On the basis of the that information, ASI Birpal prepared a raiding party and FIR No.78/2009 Page No. 2 of 14 joined Ct. Dharmender, Ct. Parmod and secret informer went at Jhuggies, Kirti Nagar and on the instance of informer, they apprehended accused who was selling liquor while sitting on a cot in front of his jhuggies. Four quarter bottles labeled with bonney special whiskey 180 ml for sale in Haryana only were recovered from his possession and four cartoon boxes containing liquor quarter bottles were recovered under the said cot on which was sitting. One cartoon box was found containing 48 quarter bottles of liquor and all the quarter bottles were of labeled with Bonny Special whiskey 180 ml for sale in Haryana only. Two cartoon boxes were found 50 quarter bottles of liquor 180 ml each labeled with Kinnu Masaledar Desi Sharab for sale in Haryana only and in 4th cartoon box were found 50 quarter bottles of 180 ml of liquor labeled with Samalkha No.01, Masaledar Desi Sharab for sale in Haryana only. IO gave serial no.01 to 04 to the cartoon boxes respectively and separated five quarter bottles of liquor each as sample from all the four cartoon boxes alongwith the four quarter bottles recovered from possession of accused labeled with Bonny special. The sample quarter bottles were given serial no.S1 to S24 in their respective manner as mentioned above and put all the quarter bottles in a plastic katta, the same was duly tight and sealed with the seal of 'BPS' and remaining quarter bottles were put back in the same cartoon boxes in above respective manner. The cartoon boxes were duly tight with the help of cellotape and were put into two plastic katta (two each) and FIR No.78/2009 Page No. 3 of 14 katta were duly tight and sealed with the seal of 'BPS'. IO filled Form M - 29 and sealed after use was handed over to him and recovered liquor was taken into possession through seizure memo Ex.PW2/A. IO prepared Rukka and Ct. Dharmender took the same to PS and after registration of the case came back at the spot alongwith HC Moti Ram. The further investigation of this case was done by HC Moti Ram who prepared site plan and arrested accused in this case and prepared arrest memo Ex.PW2/B and carried out his personal search memo Ex.PW2/C. IO also recorded his statement. He deposed in his crossexamination that a secret inform came to their office at 09:30 pm and departure entry number 07 was made. He further deposed in crossexamination that the wife of the accused was present at the spot at the time of investigation and IO tried to join public witness in the investigation. He correctly identified the accused and case property Ex.P1 (Collectively). PW2 was examined, crossexamined and was discharged.
5. PW3 HC Amrit Lal has proved and exhibited the formal FIR Ex.PW3/A. PW3 was examined, not crossexamined by the accused despite opportunity given and was discharged.
6. PW4 SI Birpal Singh has deposed that on 22.03.2009, he was posted in Special Staff, West District and on that day, one secret informer came at their office FIR No.78/2009 Page No. 4 of 14 and gave information that illicit liquor can be recovered from the jhuggies at Kirti Nagar. He recorded the same in the form of D.D.No.6 Ex.PW4/A. On the basis of that information, he prepared a raiding party with the help of HC Sanjay, Ct. Dharmender, Ct. Parmod and secret informer. They left the office vide D.D.No.7 Ex.PW4/B. He also asked few passerby to join the investigating, but, none agreed and left the place without disclosing their names and addresses. They all went at jhuggies, Chunna Bhatti, Kirti Nagar and on the instance of secret informer, they apprehended the accused Phool Chand while selling liquor sitting on a cot in front of his jhuggies. Four quarter bottles labeled with bonney special whiskey 180 ml for sale in Haryana only were recovered from his possession and four cartoon boxes containing liquor quarter bottles were recovered under the cot on which was sitting. One cartoon box was found containing 48 quarter bottles of liquor and all the quarter bottles were of labeled with Bonny Special whiskey 180 ml for sale in Haryana only. Two cartoon boxes were found 50 quarter bottles of liquor 180 ml each labeled with Kinnu Masaledar Desi Sharab for sale in Haryana only and in 4 th cartoon box were found having 50 quarter bottles of 180 ml of liquor labeled with Samalkha No.01, Masaledar Desi Sharab for sale in Haryana only. He gave serial no.01 to 04 to the cartoon boxes respectively and separated five quarter bottles of liquor each as sample from all the four cartoon boxes alongwith the four quarter bottles recovered from possession of FIR No.78/2009 Page No. 5 of 14 accused labeled with Bonny special. The sample quarter bottles were given serial no.S1 to S24 in respective manner as mentioned above and put all the quarter bottles in a plastic katta, the same was duly tight and sealed with the seal of 'BPS' and remaining quarter bottles were put back in the same cartoon boxes in their respective manner. The cartoon boxes were duly tight with the help of cellotape and were put into two plastic katta (two each) and katta were duly tight and sealed with the seal of 'BPS'. He filled Form M - 29 and sealed after use was handed over to HC Sanjay and recovered liquor was taken into possession through seizure memo Ex.PW2/A. He prepared Rukka Ex.PW4/C and Ct. Dharmender took the same to PS for registration of FIR. He also informed to the office of Special Staff regarding the abovementioned recovery. After some time, HC Moti Ram reached at the spot. After registration of the case, Ct. Dharmender also came at the spot. The further investigation of this case was done by HC Moti Ram who prepared site plan Ex.PW4/D at his instance and thereafter, he was relieved. He correctly identified the accused and case property Ex.P1 (Collectively). PW4 was examined, crossexamined and was discharged.
7. PW5 Ct. Manvinder has deposed that on 24.04.2009, he was posted at PS Kirti Nagar. On that day, on the instructions of IO, he collected one sealed pullanda i.e. plastic katta containing liquor quarter bottles sealed with seal of 'BPS' alongwith excise Form vide RC No.12/21/09 from MHCM and deposited the same at FIR No.78/2009 Page No. 6 of 14 excise office, ITO and collected receipt and came back to PS and handed over the same to MHCM. So far as the samples remained with him, the same were not tempered with. PW4 recorded his statement. PW5 was examined, not cross examined by the accused despite opportunity given and was discharged.
8. PW6 HC Moti Ram has deposed that on 22.03.2009, he was posted at Special Staff, Tagore Garden, West District, Delhi and on that day, on instructions of Senior Officers on receipt of D.D.NO.8, he went to opposite jhuggi no.KH - 261, Chunna Bhatti, Kirti Nagar at the spot. ASI Birpal Singh alongwith other police officials and accused Phool Chand met him there. ASI Birpal handed over to him prepared documents, sealed case property and samples as detailed in seizure memo Ex.PW2/A and accused for investigation in this case. Ct. Dharmender Kumar came back at the spot alongwith Rukka and copy of FIR and handed over to him. He added FIR Number on the seizure memo Ex.PW2/A. He inspected the spot and prepared site plan Ex.PW4/D and arrested the accused in this case and prepared arrest memo Ex.PW2/B and personal search memo Ex.PW2/C. He recorded statements of witnesses. Accused was released on bail at the spot. Then, they went to PS Kirti Nagar alongwith the case property and samples and same were deposited there with MHC(M) alongwith excise form. Thereafter, the case file was transferred from Special Staff to PS Kirti Nagar on 31.03.2009 as per the instructions of senior FIR No.78/2009 Page No. 7 of 14 officials. He correctly identified the accused in the Court. PW6 was examined, crossexamined and was discharged.
9. PW7 SI Kirshan Gopal has proved and exhibited entry number 2430 Ex.PW7/A in Register No.19. PW7 was examined, not crossexamined by the accused despite opportunity given and was discharged.
10. PW8 HC Satender Kumar has deposed that on 24.04.2009, he was posted at PS Kirti Nagar and on that day, the investigation of this case was marked to him for further investigation. On his instructions, Ct. Manvinder took the sealed pullanda sealed with the seal of 'BPS' containing 24 quarter bottles of liquor with excise form after obtaining from MHCM to excise office vide RC No.12/21 and after depositing the same at excise office, collected receipt and same was handed over to MHCM. He recorded statement of both the witnesses in this regard and again file was handed over to MHCR as per instructions of SHO. PW8 was examined, not cross examined by the accused despite opportunity given and was discharged.
11. On 16.01.2014, further prosecution evidence was closed by the Court on the submissions of Ld. APP for the State.
STATEMENT OF ACCUSED
12. After closure of prosecution evidence, the statement of the accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with FIR No.78/2009 Page No. 8 of 14 Section 281 of The Code of Criminal Procedure, 1973. Incriminating evidence was put to him. He denied all the allegations and stated that he is innocent and has not committed any offence. Accused person opted not to lead any evidence in his defence.
13. Final arguments from both sides heard. Record is perused. APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
14. In the present case, accused person has been charged for committing an offence under Section 61 of The Punjab Excise Act, 1914. All witnesses are official witnesses. In order to prove the guilt of the accused, prosecution has to prove that the accused was found in possession of illicit liquor in contravention of notification issued by Delhi Administration and thereby committed an offence under Section 61 of Punjab Excise Act, 1914. Prosecution has examined PW2, PW4 and PW6 to prove the recovery of illicit liquor from the accused. The alleged spot of recovery is a busy public place. However, the witnesses have not deposed regarding any concrete effort to join public witnesses being made by them at the time of affecting the alleged recovery of illicit liquor, despite their availability on the spot.
15. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In view of this Court, the nonjoining of public witnesses is FIR No.78/2009 Page No. 9 of 14 fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
In case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), it was held as that : "where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected".
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under : "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility." FIR No.78/2009 Page No. 10 of 14
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. 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 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.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of FIR No.78/2009 Page No. 11 of 14 investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under : "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
16. On 16.11.2011, the case property was produced first before the Court and it was observed that the case property has been produced in two plastic kattas out of which, one was in open condition sealed with illegible seal containing two cartoon boxes having 43 quarter bottles of illicit liquor labeled with label of Bonny Special and Kinnu Masaledar Desi Sharab. This shows that there might be tempering with the case property when the same was kept in the Malkhana. It further caste the shadow of doubt on the case of the prosecution as the condition of the case property contradict FIR No.78/2009 Page No. 12 of 14 the testimony of prosecution witnesses.
In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73 it was observed as under : "During the trial when the case property was produced namely the components of the still, there was no identify mark or chit on the case property to indicate that it related to the alleged recovery pertaining to the petitioner. There was no FIR No. or even chit placed on such a property. When such is the situation, the said property could be used in each and every case against anybody. There has to be proper identification of the property."
In the case of "State of Punjab Vs. Bagga Singh" 1987 Crl. App. No. 578 (P&H) DB, it was held that recovery was not corroborated by the evidence of official witnesses since "the case property produced before the trial court does not bear any identity marks".
In the case of "Datu Ram Vs. State" 1996 1 AD (Delhi) 52, it has been held that all the links starting from the seizure of sample till the same reaches the hands of public analyst must be proved to conclude that the seals remained intact.
In the case of "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that in the absence of any link evidence that the property deposited in the malkhana remained intact till brought before the Court, accused is entitled to benefit of doubt.
In the case of "Ayub Khan Vs. State" (Delhi Administration) ILR 1989 Delhi 467, it was observed as under : FIR No.78/2009 Page No. 13 of 14 "Similarly, in the present case by not examining Malkhana Moharrir of the Police Station where the case property was kept, the prosecution has not been able to establish the chain to prove that the case property after being seized remained intact without being tampered with throughout the particularly when it remained in the Malkhana. Hence, for this short reason, it must be held that the appellant could not have been convicted of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act."
17. There are other facts/contradictions also on the record which erodes the credibility of prosecution evidence. The seal after use was not handed over to any independent witness by investigating officer and the same also creates a doubt whether the case properties were genuinely recovered in this matter or not. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as 1996 JCC
497. In these circumstances, the abovesaid facts also erode the credibility of the prosecution evidence.
18. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given benefit of doubt in this matter. Accused person namely Phool Chand is accordingly, acquitted for the offence punishable under Section 61 of The Punjab Excise Act, 1914. Case properties be confiscated to the State and be destroyed after expiry of period of appeal.
Announced in open Court on February 25, 2014.
(HARVINDER SINGH) M.M.03/THC (WEST), Delhi/25.02.2014 FIR No.78/2009 Page No. 14 of 14