Delhi District Court
State vs . Murtaza, Fir No. 424/13, Ps Oia, U/S 33 ... on 21 September, 2015
State Vs. Murtaza, FIR No. 424/13, PS OIA, u/s 33 Delhi Excise Act. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE02, (SOUTH EAST), SAKET COURTS, DELHI. FIR NO. 424/13 U/S. : 33 DELHI EXCISE ACT. P.S. : OKHLA INDUSTRIAL AREA State Vs. Murtaza JUDGMENT
1. Sl. No of the case : 233/2/14
2. Date of commission of the offence : 23.08.2013
3. Date of institution of the case : 24.06.2014
4. Name of the accused : Murtaza
s/o Sh. Jiyaullah
5. Name of the complainant : Ct. Ranbir
6. Offence complained of : 33 Delhi Excise Act
7. Plea of accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of such order : 21.09.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused has been sent to face trial under section 33 Delhi Excise Act, 2009, by the SHO, PS Okhla Industrial Area, Delhi.
2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that on 23.08.2013, at about 5.25 pm, at service road in front of factory no. Y21, OIA, PhaseII, New Delhi, the accused was found in possession of total 190 quarter bottles of illicit liquor of different brands (for sale in Haryana only), without any license or permit of N.C.T of Delhi. Therefore, the present FIR No. 424/13, under section 33 Delhi Excise Act, PS Okhla Industrial area, was registered. After completion of investigation, charge sheet was prepared and filed in the Court.
3. In compliance of Section 207 Cr.P.C. the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge U/s. 33 Delhi Excise Act was made out Page 1/5 State Vs. Murtaza, FIR No. 424/13, PS OIA, u/s 33 Delhi Excise Act.
against the accused Murtaza. Accordingly, on 21.05.2015, the charge was framed against the accused. The accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined only one witness.
5. PW1 Ct. Ranbir Singh is the complainant and recovery witness of this case and he has deposed that on 23.08.2013, he was on patrolling duty in area of Y21, OIA, PhaseIII. During the course of patrolling, he saw that one person was coming from factory no. Y14 side and he was carrying a katta on his right shoulder. On seeing him, he turned back and started walking fast in reverse direction. On suspicion, he apprehended the said person and he revealed his name as Murtaza. On checking of the said katta, he found quarter bottles of illicit liquor of Santra Masaledar Desi Sharab for sale in Haryana only. Thereafter, he informed to PP OIA, PhaseIII. HC Kishan came from PP at the spot. He handed over the case property and the accused to HC Kishan. After checking the said katta, total 190 quarter bottles of illicit liquor were recovered from it. IO/HC Kishan took out one quarter bottle as sample. The remaining case property and the sample were sealed with the seal of KK. The case property was taken into police possession vide seizure memo which is Ex. PW1/A. IO filled form M29 at the spot. IO recorded his statement and got the FIR registered through him. After registration of FIR, he returned to spot. IO prepared the site plan at his instance. After interrogation, IO arrested the accused. During his testimony, MHC(M) had produced a report dated 19.12.2014, where by, the case property was destroyed after taking its photograph and after retaining one quarter bottle of illicit liquor. The said photograph is Ex. P1 and the sample quarter bottle of illicit liquor is Ex. P2. Thereafter, PE was closed.
6. Statement of the accused u/s. 313/281 Cr.P.C was recorded. All the incriminating evidence were put to him. In the said statement he has stated that he has been falsely implicated in the present case and he is innocent. He has further stated that the case property was falsely planted upon him. However, he preferred not to Page 2/5 State Vs. Murtaza, FIR No. 424/13, PS OIA, u/s 33 Delhi Excise Act.
lead evidence in defence. Thereafter, the matter was listed for final arguments.
7. I have heard Ld. APP for the state and Ld. Counsel for the accused. I have carefully perused the case record.
8. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he/she is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.
9. In order to sustain conviction U/s 33 Delhi Excise Act, the prosecution is required to prove the following ingredients:
(i) The accused was found in the possession of the illicit liquor; and
(ii) He/She was possessing the same without any licence/permit.
10. The prosecution is required to prove that the illicit liquor was recovered from the possession of the accused by PW1 Ct. Ranbir. He is the material witness as he is the alleged recovery witness. As per prosecution, he was on patrolling duty at the time of recovery of the liquor from the possession of the accused. However, the prosecution has failed to place and prove on record the departure entry of the said witness vide which he allegedly left the police station for the purpose of patrolling in the area. The said departure entry was indispensable for establishing his presence at the spot of alleged recovery. Therefore, his presence at the alleged place, time and date of recovery of the illicit liquor from the possession of the accused is doubtful.
11. The alleged incident pertains to have occurred at about 5.25 pm, at service road, in front of factory no. Y21, OIA, PhaseII, New Delhi. The said spot is admittedly a densely crowded area and at the time at which the allegedly recovery was affected, the said place must have been frequented by many public persons. Therefore, it is convincingly established that there were many public persons available at the spot of alleged recovery. The criminal law has duly empowered the investigating officer/police officials to initiate action against the Page 3/5 State Vs. Murtaza, FIR No. 424/13, PS OIA, u/s 33 Delhi Excise Act.
persons who refuse to participate in the investigation. But still, IO neither made any genuine and sincere efforts to join public/independent witnesses nor advanced any plausible explanation as to why no independent witnesses were examined by him. Hence, story of the prosecution is further shrouded in suspicion.
12. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witness that is examined by the prosecution in the present case is police witness, who is interested in the success of the prosecution case and therefore, the probability of him being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine and sincere efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court.
13. Keeping in view the fact that the version of prosecution witness has remained uncorroborated by any other independent witness regarding the alleged recovery of illicit liquor, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that: "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
14. In the light of above facts, the prosecution has failed to discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to Page 4/5 State Vs. Murtaza, FIR No. 424/13, PS OIA, u/s 33 Delhi Excise Act.
the accused Murtaza and he is acquitted of the charge U/s.33 Delhi Excise Act. He is directed to furnish fresh personal bond in the sum of Rs.10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. At his request, his previous bail bonds and surety bonds are extended for the next six months. Case property be confiscated to the State.
File be consigned to record room after due compliance.
Announced in the open court on 21.09.2015 (DHEERAJ MOR) METROPOLITAN MAGISTRATE02 DISTRICT SOUTH EAST, SAKET COURT, DELHI Page 5/5 State Vs. Murtaza, FIR No. 424/13, PS OIA, u/s 33 Delhi Excise Act.
FIR NO. 424/13U/S. : 33 DELHI EXCISE ACT.
P.S. : OKHLA INDUSTRIAL AREA
STATE VS. MURTAZA
21.09.2015
Present: Ld. APP for the State.
Accused Murtaza on bail with his counsel.
PW1 Ct. Ranbir Singh is examined and discharged. No other PW is present. All the material witnesses have been examined. Thus, PE stands closed.
The statement of the accused u/s 313/281 Cr.P.C. is separately recorded. The accused has submitted that he does not want to lead defence evidence.
Final arguments are heard. Case file is perused. Vide my separate judgment announced in the open court today, the accused Murtaza stands acquitted for the offence punishable U/s 33 Delhi Excise Act. He is directed to furnish fresh personal bond in the sum of Rs.10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bonds and surety bonds be extended for the next six months. The said request is allowed and they are accepted for the next six months. Case property be confiscated to the State.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM02/South East/Saket/Delhi 21.09.2015 Page 6/5