Delhi District Court
State vs . Bhure Singh on 28 November, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 77/2008
PS : Chitranjan Park (CB)
U/s : 78/61/1/14 Punjab Excise Act & 63/63B Copyright Act r/w s. 471 IPC
State Vs. Bhure Singh
Unique ID No. : 89017/16
Digitally
Date of institution of case : 21.04.2009 signed by
Date of reserving the judgment : 15.11.2018 MANISH
Date of pronouncement of judgment : 28.11.2018 MANISH KHURANA
KHURANA Date:
2018.11.30
J U D G M E N T 11:51:16
1. S. No. of the Case : 11/02/2009 +0530
2. Date of Commission of Offence : 27.04.2008
3. Name of the complainant : SI Murari Lal, PS C.R. Park,
(retired) S/o Sh. Matadeen
Lal, R/o H. No. 705D/16D,
Ward No. 3, Mehrauli, New
Delhi.
4. Name,parentage & address of accused : Bhure Lal,
S/o Sh. Chhote La,
R/o H. No. E597, Shiv
Durga Vihar, Lakkarpur,
Faridabad, Haryana.
5. Offence complained of : u/s 78/61/1/14 Punjab Excise
Act & 63/63B CR Act r/w
s. 471 IPC
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that on 27.04.2008 at about 12.10 pm at Picket Kalka Public School, near Mandakni Enclave, within the jurisdiction of FIR No. 77/2008 State Vs. Bhure Singh Page 1 of 25 PS CR Park, accused was found in possession of illegal liquor of various brand in a vehicle bearing no. DL4CG8006 as per seizure memo, without any permit or licence and thereby he committed offence punishable u/s 78/61/1/14 Punjab Excise Act. Further, on the abovesaid date, time and place the accused was also found in possession of wrapper of various brand of liquor like DSP Black, ACP, Royal Stage, Bachardi, Arristocrate, Blander Pride for the purpose of sale which the accused knew that the same were forged/fabricated wrapper as he did not have any licence or permit from the said companies who owned the copyright of the same and thereby accused committed offence punishable u/s 63/63B CR Act r/w s. 471 IPC.
2. After supplying copies of chargesheet and documents and on finding a primafacie case, charge for the offence punishable u/s 78/61/1/14 of Punjab Excise Act, 63/63B Copyright Act r/w s. 471 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate and prove the charge against the accused prosecution examined as many as 08 witnesses. They are as under:
4. PW1 Retd. SI Murari Lal deposed that on 27.04.08 he was posted as ASI at PS CR Park and on that day he alongwith HC Sanjeev Kumar, HC Vinod and Constable Dinesh was on patrolling duty and at about 10:30 am when they reached near Kalka Public School near Mandakani Enclave, they met HC Sanjivan from Excise Department who told him that a vehicle bearing no. DL4CG 8006 carrying illicit liquor was coming from Haryana. He further stated that they requested few public persons to join the raiding party but they all refused without disclosing their names and addresses. Thereafter, he prepared raiding party comprising of HC Sanjeev Kumar, HC Vinod, Constable Dinesh and HC Sanjivan. He further stated that they started checking vehicles at Kalka Public FIR No. 77/2008 State Vs. Bhure Singh Page 2 of 25 School and put the barricades and at about 12:10 pm they saw a vehicle bearing no. DL4CG 8006 coming at a fast speed from Alaknanda side and the vehicle was made to stop. He further stated that the vehicle was being driven by accused Bhure and the vehicle was searched and there were 10 cartons on the back seat and 05 cartons were found on the floor of the car near back seat and 09 cartons of illicit liquor were found kept in the dicky. He stated that 15 cartons were of Black Dog whiskey and 09 cartons were of ACP whiskey and 13 cartons were having 312 half bottles and 02 cartons were having 24 full bottles and 09 cartons which were kept in the dicky were having 216 half bottles of illicit liquor. He further stated that one sample bottle from each carton was taken out as sample i.e 24 samples were taken out and 24 cartons were sealed with the seal of "MLD" and 24 sample bottles of illicit liquor were also seized and sealed with the seal of MLD. He further stated that he filled up form M29 and he prepared rukka Ex. PW 1/A and gave it to Constable Dinesh and sent him to PS CR Park for registration of FIR. He further stated that the illicit liquor was seized vide seizure memo Ex. PW 1/B and seal after use was handed over to HC Sanjeev. He further stated that the vehicle was also seized vide Ex. PW 1/C. He further stated that Constable Dinesh got the FIR registered and came back at the spot alongwith SI Hari Prakash Gulia and he handed over case property, documents and the accused to SI Hari Prakash Gulia. During his cross examination by Ld defence counsel he stated that he was patrolling on foot in the area of PS CR Park. He denied that the place of spot of alleged recovery was very populated area, however, he admitted that few passersby used to commute there. He could not tell the distance of spot from the gate of Mandakani Enclave. He could not tell the identity, physical description or age of public persons to whom he requested to join the investigation. He stated that FIR No. 77/2008 State Vs. Bhure Singh Page 3 of 25 the second IO recorded his statement at the spot and he also stated that the second IO did not write the statement of any witness in his presence. He could not tell as to whether any DD Entry regarding the patrolling in the area on 27.04.2008 was maintained in record or not. He did not remember as to whether he got recorded any DD Entry regarding his arrival in the PS after the alleged recovery. He denied that no recovery was effected from the accused or that he was falsely implicated. He denied that accused was lifted from his house by SI Hari Prakash Gulia who was illegally demanding Rs. 2 lacs from the accused. He denied that the accused was innocent. He also denied that he was deposing falsely.
5. PW2 Ct. Dinesh deposed that on 27.04.08 he alongwith HC Sanjeev Kumar, HC Vinod and SI Murari Lal was on patrolling duty and at about 10:30 am when they reached near Kalka Public School near Mandakani Enclave, they met with HC Sanjivan from Excise Department who told SI Murari Lal that a vehicle bearing no. DL4CG 8006 carrying illicit liquor would come from Haryana. He further stated that they requested few public persons to join the raiding party but they all refused and left without disclosing their names and addresses. He further stated that IO SI Murari Lal prepared raiding party comprising of HC Sanjeev Kumar, HC Vinod, himself and HC Sanjivan. He further stated that they started checking vehicles at Kalka Public School and put the barricades and at about 12:10 pm they saw a vehicle bearing no. DL4CG 8006 coming at a fast speed from Alaknanda side and the vehicle was made to stop. He further stated that the vehicle was being driven by accused Bhure. He further stated that the vehicle was searched and there were 10 cartons on the back seat and 05 cartons were found on the floor of the car near back seat and 09 cartons of illicit liquor were found kept in the dicky. He further stated that 15 cartons were of Black Dog whiskey and 09 cartons FIR No. 77/2008 State Vs. Bhure Singh Page 4 of 25 were of ACP whiskey. He further stated that 13 cartons were having 312 half bottles and 02 cartons were having 24 full bottles. He further stated that 09 cartons which were kept in the dicky were having 216 half bottles of illicit liquor. He further stated that one sample bottle from each carton was taken out as sample i.e 24 samples were taken out. He further stated that 24 cartons were sealed with the seal of MLD and 24 sample bottles of illicit liquor were also seized and sealed with the seal of MLD. He further stated that IO filled up form M29. He further stated that IO prepared rukka vide Ex.PW1/A and gave it to him and sent him to PS CR Park for registration of FIR. He further stated that the illicit liquor was seized vide seizure memo Ex.PW1/B and seal after use was handed over to HC Sanjeev. He further stated that the vehicle was also seized vide Ex.PW1/C and he got the FIR registered and came back at the spot alongwith SI Hari Prakash Gulia. He further stated that IO handed over case property, documents and the accused to SI Hari Prakash Gulia. He further stated that the disclosure statement of accused Bhure Singh was recorded vide Ex.PW2/A and accused was arrested and his personal search was conducted vide Ex.PW2/B and Ex.PW2/C. He further stated that thereafter accused took them to E597, Gali no. 1314, Lakkarpur, Faridabad and got recovered two cartons of Aristocrat Premium whiskey, 10 cartons of Aristocrat whiskey, 03 cartons of half bottles of Aristocrat whiskey and one carton of Royal Stag whiskey from right side of his room in that premises. He further stated that IO got separated one bottle of illicit liquor from each carton and thereafter rest of the liquor and sample liquor were seized after preparing pulandas of the same after duly sealing with the seal of HPG and Form M 29 was filled up. He further stated that pullandas of illicit liquor were given serial no. A1 to A16 and sample of illicit liquor were given serial no. B1 to B16 vide FIR No. 77/2008 State Vs. Bhure Singh Page 5 of 25 seizure memo Ex.PW2/D. He further stated that accused also got recovered an iron tub which was seized vide seizure memo Ex.PW2/E and thereafter accused also got recovered various labels of different brand of liquor from his room and same were seized vide seizure memo Ex.PW2/F. He also identified the case property as Ex. P1 (colly) and the iron tub and labels of different brands of illicit liquor as Ex. P2 and P3 (colly).
6. PW3 HC Sanjeev Kumar deposed that on 27.04.08 he alongwith Constable Dinesh, HC Vinod and SI Murari Lal was on patrolling duty and at about 10:30 am when they reached near Kalka Public School near Mandakani Enclave, they met with HC Sanjivan from Excise Department who told SI Murari Lal that a vehicle bearing no. DL4CG 8006 carrying illicit liquor was coming from Haryana. He further stated that they requested few public persons to join the raiding party but they all refused without disclosing their names and addresses. He further stated that IO SI Murari Lal prepared raiding party comprising of himself, HC Vinod, Constable Dinesh and HC Sanjivan and they started checking vehicles at Kalka Public School and put the barricades and at about 12:10 pm they saw a vehicle bearing no. DL4CG 8006 coming at a fast speed from Alaknanda side. He further stated that the vehicle was made to stop and the vehicle was being driven by accused Bhure. He further stated that the vehicle was searched and there were 10 cartons on the back seat and 05 cartons were found on the floor of the car near back seat and 09 cartons of illicit liquor were found kept in the dicky. He further stated that 15 cartons were of Black Dog whiskey and 09 cartons were of ACP whiskey. He further stated that 13 cartons were having 312 half bottles and 02 cartons were having 24 full bottles. He further stated that 09 cartons which were kept in the dicky were having 216 half bottles of illicit liquor. He further stated that one sample bottle from each carton were taken out FIR No. 77/2008 State Vs. Bhure Singh Page 6 of 25 as sample i.e 24 samples were taken out. He further stated that 24 cartons were sealed with the seal of MLD and 24 sample bottles of illicit liquor were also seized and sealed with the seal of MLD. He further stated that IO filled up form M 29 and prepared rukka vide Ex.PW1/A and gave it to Constable Dinesh and sent him to PS CR Park for registration of FIR. He further stated that the illicit liquor was seized vide seizure memo Ex.PW1/B seal after use was handed over to him. He further stated that the vehicle was also seized vide Ex.PW1/C and Constable Dinesh got the FIR registered and came back at the spot alongwith SI Hari Prakash Gulia. He further stated that IO handed over case property, documents and the accused to SI Hari Prakash Gulia. He further stated that disclosure statement of accused Bhure Singh was recorded vide Ex.PW2/A and accused was arrested and his personal search was conducted vide Ex.PW2/B and Ex.PW2/C. He further stated that thereafter accused took them to E597, Gali no. 1314, Lakkarpur, Faridabad and got recovered two cartons of Aristocrat Premium whiskey, 10 cartons of Aristocrat whiskey, 03 cartons of half bottles of Aristocrat whiskey and one carton of Royal Stag whiskey from right side of his room in that premises. He further stated that IO got separated one bottle of illicit liquor from each carton and thereafter rest of the liquor and sample liquor were seized after preparing pulandas of the same after duly sealing with the seal of HPG. He further stated that Form M 29 was filled up and pulandas of illicit liquor were given serial no. A1 to A16 and sample of illicit liquor were given serial no. B1 to B16 vide seizure memo Ex.PW2/D and accused also got recovered an iron tub which was seized vide seizure memo Ex.PW2/E and thereafter accused also got recovered various labels of different brand of liquor from his room and same were seized vide seizure memo Ex.PW2/F. He further stated that accused was FIR No. 77/2008 State Vs. Bhure Singh Page 7 of 25 sent to lock up and case property was deposited in the malkhana. He also identified the case property as Ex. P1 (colly) and the iron tub and labels of different brands of illicit liquor as Ex. P2 and P3 (colly).
7. PW4 HC Sriniwas deposed that on 26.11.2008 he was posted as constable at PS CR Park and on that day on the instruction of IO, he took sample property of the present case some sealed with the seal of "MLD" and some sealed with the seal of "HPG" with FSL forms , from malkhana of PS CR Park to FSL Rohini, Excise Laboratory, Vikas Bhawan, New Delhi vide RC No. 59/21 dated 26.11.2008. He further stated that he deposited the case property in the Excise Laboratory and obtained receipt and he handed over receipt to MHC(M) concerned. He further stated that so long as the case property/sample property remained in his possession it was not tampered with. This witness was not cross examined by Ld defence counsel.
8. PW5 ASI Vinod Kumar deposed that on 27.04.2008, he was posted as HC at PS C.R. Park and on that day at around 10:30 am, he alongwith ASI Murari Lal, HC Sanjeev, Ct. Dinesh was on patrolling duty in their area and at that time, a secret informer met them near Kalka Public School, Mandakini Enclave, New Delhi and shared information with ASI Murari Lal that a Esteem Car bearing Reg. No. DL4CG8006 would come from Haryana side and would pass through Jhapanah Road, situated between Mandakini Public School and Kalka Public School which would be carrying illicit liquor. He further stated that in the meantime, HC Sanjeevan from Excise Department also reached there and met them and he also told IO / SI Murari Lal about reception of secret information of above stated Maruti Esteem Car carrying illicit liquor and thereafter, IO / SI Murari Lal formed a raiding party consisting himself, HC Sanjeev, Ct. Dinesh, HC Sanjeevan and secret FIR No. 77/2008 State Vs. Bhure Singh Page 8 of 25 informer and also requested 45 public persons / passersby to join the raiding party but none of them agreed citing their personal difficulties. He further stated that thereafter, at the instruction of IO they all put barricades on the road in front of Kalka Public School and started checking vehicles and at about 12:10 pm they noticed Maruti Esteem car bearing above mentioned registration number coming from Alaknanda side and heading towards Jhapanah Restaurant side and they signaled the above said vehicle to stop and after the above said car halted, they checked the car. He further stated that accused Bhure Singh was driving the above said car and upon checking, 09 cartons of illicit liquor were found lying in the dikki of the above said car and total 15 cartons of illicit liquor were found lying on the back seat and 04 of the above said car. He further stated that out of the above said 15 cartons found on back seat and floor near back seat, 13 cartons were having half bottles of DSP Black Label Whiskey for sale in Haryana only. He further stated that the two remaining cartons were having 24 full bottles of DSP Black Label Whiskey for sale in Haryana only in each. He further stated that the 09 cartons found in the dikki of the car were containing a total 216 half bottles of ACP Label Whiskey for sale in Haryana only. He further stated that after counting, IO marked all the recovered cartons from S. No. 1 to S. No. 24 and took out one bottle of illicit liquor from each carton as sample. He further stated that the sample bottles were given respective serial numbers from S. No. 1/1 to S. No. 24/24 and thereafter, IO sealed the case property and sample property after sealing them separately with his seal of "MLD". He further stated that after use IO handed over his seal to him and IO also filled form M29. He further stated that the above mentioned recovered liquor and sample were seized vide seizure memo already Ex.PW1/B and IO also seized the above mentioned Maruti FIR No. 77/2008 State Vs. Bhure Singh Page 9 of 25 Esteem car vide Ex.PW1/C and thereafter, IO prepared rukka and got FIR registered through Ct. Dinesh. He further stated that after registration of FIR, further investigation was taken over by SI Hari Prakash Gulia who reached the spot to whom first IO handed over case property, already prepared documents and custody of accused. He further stated that thereafter, second IO prepared site plan at the instance of first IO. He further stated that thereafter, after due interrogation accused Bhure Singh was arrested and his personal search was conducted vide memos Ex.PW2/B and Ex.PW2/C respectively and disclosure statement of accused Bhure Singh was recorded by second IO vide Ex.PW2/A. He further stated that in his disclosure statement accused told IO that he alongwith Mohan and Pappu used to carry illicit liquor from Faridabad, Haryana and used to sell it in the area of Mayur Vihar and Meet Nagar after illegally bottling them and labeling them of Delhi Excise. He further stated that he also told that he could get recovered illicit liquor in a big quantity from his house at E597, Lakadpur, Faridabad, Haryana. He further stated that thereafter, accused took them to his above mentioned house and got recovered 16 pettis of illicit liquor and one drum / tub and also wrappers of different brands of liquor. He further stated that the above mentioned 16 pettis of illicit liquor were seized vide memo already Ex.PW2/D. He further stated that the tub was seized vide memo already Ex.PW2/E and wrappers were seized vide already Ex. PW2/F. He further stated that thereafter, they took accused and case property to PS C.R. Park and case property was deposited in the malkhana of PS C.R. Park and IO recorded his statement also.
9. PW6 ASI Fateh Singh deposed that on 27.04.2008, he was posted as HC/DO at PS CR Park and on that day, at about 2.10 pm he received information through rukka sent by ASI Murari Lal through Ct. Dinesh FIR No. 77/2008 State Vs. Bhure Singh Page 10 of 25 and on the basis of same, he registered present FIR Ex.PW6/A (OSR) and he also endorsed the rukka vide his endorsement Ex.PW6/B. He further stated that after registration of FIR further investigation was handed over to SI Hari Prakash. This witness was not cross examined by Ld defence counsel.
10. PW7 ASI Sanjeevan deposed that on 27.04.2008, he was posted as HC posted in EIB (Excise Intelligence Bureau) L - Block, vikas Bhawan, ITO, New Delhi and on that day, he was having a secret information that in a Maruti Esteem car bearing no. DL4CG8006, illicit liquor would be supplied in the area of PS C.R. Park, Delhi after bringing illicit liquor from Haryana. He further stated that he informed the concerned PS C.R. Park and reached near Kalka School, Mandakini Enclave, New Delhi where a police picket was established. He further stated that there he met HC Sanjeev, HC Vinod, Ct. Dinesh and ASI Murari Lal (First IO) with whom he shared his secret information. Thereafter, they started waiting for the possible arrival of abovementioned car and at about 12:10 p.m, they noticed abovementioned Maruti Esteem car coming from Alaknanda side and they signaled the said car to stop and found accused Burey Singh inside the car while driving the same and upon checking ten cartons of illicit liquor were found lying on the rear seat of the car while five cartons of illicit liquor were found lying on the foot mat of the car. He further stated that nine cartons of illicit liquor were found in the dickey of the said car and same were taken out and upon checking 15 cartons found on rear seat and foot mat were containing illicit liquor having a Mark of DSP Black Label out of which 13 cartons were containing total 312 half ltr bottles of abovementioned brand and remaining two cartons were containing 24 full bottles of DSP Black Label illicit liquor. He further stated that remaining nine cartons found in the FIR No. 77/2008 State Vs. Bhure Singh Page 11 of 25 dickey were found containing total 216 half bottles of ACP Label illicit liquor. He further stated that thereafter, IO separated one bottle from each carton and gave the remaining cartons from serial no. S1 to S24 and gave the sample bottles Sr. no. S1/1 to S24/24. He further stated that thereafter, IO seized all the cartons and sample bottles with the seal of MLD and seized them vide seizure memo already Ex.PW1/B. IO also seized the abovementioned car vide memo Ex.PW1/C. He further stated that IO also filled form M29 and thereafter, IO handed over his seal to HC Vinod Kumar and thereafter, IO prepared tehrir and got the FIR registered in the present case. He further stated that after registration of FIR Second IO SI Hari Prakash Gulia reached the spot whom first IO handed over custody of accused, seized case property and already prepared documents. He further stated that second IO prepared site plan and mentioned the FIR number on already prepared documents. He further stated that thereafter accused was arrested and his personal search was conducted vide memos Ex.PW2/B and Ex.PW2/C respectively and his disclosure statement was also recorded. He further stated that IO recorded his statement to the abovesaid effect.
11. PW8 SI H.P. Gulia (Retired) deposed that on 27.04.08 he was posted as SI at PS CR Park and on that day after registration of present FIR investigation was handed over to him. He further stated that Ct. Dinesh handed over him copy of FIR and original rukka and he alongwith Constable Dinesh reached at the spot i.e. police picket in front of Kalka Public School near Mandakani Enclave, New Delhi where he met with ASI Murari Lal alongwith staff who had apprehended Maruti Esteem Car bearing no. DL4CG 8006 alongwith 24 cartons of illicit liquor and accused Bhure Singh / driver of the abovesaid car. He further stated that First IO handed over him custody of accused, already recovered case property FIR No. 77/2008 State Vs. Bhure Singh Page 12 of 25 alongwith From M29, abovementioned car and already prepared documents. He further stated that he put the particulars of the abovesaid FIR on already prepared documents and prepared site plan Ex.PW8/A at the instance of first IO. He further stated that he recorded statement of ASI Murari Lal u/s 161 Cr.P.C. and relieved him from the spot. He further stated that thereafter, he interrogated accused Bhure Singh and recorded his disclosure statement already Ex.PW2/A. He further stated that he arrested and conducted personal search of accused vide memos Ex.PW2/B and Ex.PW2/C. He further stated that accused disclosed that he used to buy liquor from Faridabad and used to change the label of the bottles of the liquor from made in Haryana to Delhi Excise and thereafter used to sell the same in the area of Mayur Vihar, Meet Nagar and Anand Vihar. He further stated that accused disclosed that he used to procure counterfeit / false wrappers of Delhi Excise and used to apply on the bottles of illicit liquor intended to be sold in Haryana only and he could get recovered illicit liquor, tub and counterfeit / false wrappers of different brands from his house at house no. E597, Gali no. 13,14 Lakarpur, Faridabad, Haryana. He further stated that as per his disclosure statement accused led them to his abovementioned house from where he got recovered from his room, two cartons of full bottles of ACP Label whiskey, ten cartons of quarter bottles of Aristocrat Whiskey, three cartons of half bottles of Aristocrat whiskey and one carton of full bottle of Royal Stag Whiskey. He further stated that he separated one bottle / half bottle / quarter bottle from each of the carton of whiskey and sealed the sample property with the seal of HPG. He further stated that he also sealed all the remaining cartons with the seal of HPG after giving them serial no. A1 to A16 and marking the corresponding samples from Sr. no. B1 to B16 and seized all the case property vide memo Ex.PW2/D. FIR No. 77/2008 State Vs. Bhure Singh Page 13 of 25 He further stated that he also seized one iron tub used by accused for the purpose of changing the wrappers vide seizure memo Ex.PW2/E. He further stated that on production by accused, he also seized from his house one polythene bag containing counterfeit 1709 wrappers of DSP Black label whiskey, counterfeit 3300 wrappers of ACP label whiskey, counterfeit 1950 wrappers of Royal Stag Whiskey, counterfeit 300 wrappers of Bacardi Rum, counterfeit 700 wrappers of Aristocrat whiskey, 87 counterfeit wrappers of blender's pride Whiskey and seized them by seizure memos already Ex.PW2/F. He further stated that he got deposited the case property in the malkhana of PS C.R. Park. He further stated that accused was taken into custody and one day PC remand was obtained. He further stated that during PC remand of 28.04.2008 accused led them at two shops where he had allegedly sold / supplied the illicit liquor but no illicit liquor was found there. He further stated that he prepared pointing out memo Ex.PW8/B and Ex.PW8/C respectively. He further stated that he recorded statement of witnesses u/s 161 Cr.P.C. He further stated that thereafter, he was transferred from PS C.R. Park on 13.05.2008 and he handed over case file to MHCR concerned. He further stated that he had not conducted any investigation qua the recovered counterfeit wrappers. He further stated that after he was relieved further investigation was handed over to ASI Prem Chand (since expired) who got deposited the case property in Excise Laboratory, Vikas Bhawan, IP Estate and later on obtained the FSL result and placed its report on record and prepared charge sheet in the present case. He further stated that the report of Excise Laboratory dated 01.12.2008 is Ex.PW8/X (running into eight pages).
12. Thereafter, PE was closed and statement of the accused was recorded u/s 313 Cr.PC wherein he denied the prosecution case in its entirety and FIR No. 77/2008 State Vs. Bhure Singh Page 14 of 25 pleaded innocence and false implication. Accused examined 02 witnesses in his defence.
13. DW1 Sh. Imran deposed that earlier he used to reside at E596, Shiv Durga Vihar, Gali No. 13, Lakkarpur Gaon and at that time, accused Bhure Singh used to reside opposite to his house in E597, Shiv Durga Vihar, Gali No. 13, Lakkarpur Gaon. He further stated that on one Sunday when he was present at his house, he heard a commotion in the Gali and he came out of his house and he saw that one police person in police uniform and 23 other police persons in civil dress were taking accused Bhure Singh from his house. He further stated that they made the accused to sit in their gypsy and they all left. During his cross examination by Ld APP for the State he deined that he never resided in E596, Shiv Durga Vihar, Gali No. 13, Lakkarpur Gaon. He further denied that accused never resided in his neighbourhood. He further stated that he knew accused for about 89 years. He did not have any document to show that he used to reside in E596, Shiv Durga Vihar, Gali No. 13, Lakkarpur Gaon and he could not produce the same. He denied that he deposed falsely in his examination in chief at the instance of accused to save him. He denied that he never saw any police officials taking accused from his house.
14. DW2 Sh. Rajender Prasad Gupta deposed that he knew accused Bhure Singh for about 20 years and 810 years ago one day when he was going to Bhairo Mandir, Pragati Maidan, he went to house of accused to ask him as to whether he was willing to accompany him. He further stated that after reaching house of accused Bhure Singh, he saw that many persons had gathered there and thereafter, he left.
15. I have heard Ld. APP for the State and Ld defence counsel and also gone through the judicial record.
FIR No. 77/2008 State Vs. Bhure Singh Page 15 of 25Findings of the court
16. The prosecution case is that on 27.04.2008 at about 12.10 pm at Picket Kalka Public School, near Mandakni Enclave, within the jurisdiction of PS CR Park, accused was found in possession of illegal liquor of various brand in a vehicle bearing no. DL4CG8006 as per seizure memo, without any permit or licence and thereby he committed offence punishable u/s 78/61/1/14 Punjab Excise Act. Further, on the abovesaid date, time and place the accused was also found in possession of wrapper of various brand of liquor like DSP Black, ACP, Royal Stage, Bachardi, Arristocrate, Blander Pride for the purpose of sale which the accused knew that the same were forged/fabricated wrapper as he did not have any licence or permit from the said companies who owned the copyright of the same and thereby accused committed offence punishable u/s 63/63B CR Act r/w s. 471 IPC.
17. Ld. APP for state has argued that recovery of illicit liquor has been made from the possession of the accused and prosecution case is consistent and he also argued that testimony of police witnesses are reliable and consistent and prosecution has proved its case beyond reasonable doubts.
18. On the other hand, Ld. Counsel for accused has argued that no public witness was joined by the police in the investigation despite the availability of the same and it is also argued that case property was first produced in the Court during the examination of PW2 Ct. Dinesh and seal of few pullandas were found to be in broken condition. Ld counsel argued that the accused has been falsely implicated in this case, therefore, he may be acquitted from the present case.
19. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled FIR No. 77/2008 State Vs. Bhure Singh Page 16 of 25 proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its on legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shits to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
20. Further the crux of legal position regarding joining of independent witness, to my mind is that as far as possible recovery of contraband, is to be authenticated by affecting it in presence of any independent witness. Joining of independent witness, forcefully establishes the recovery of contraband, beside compliance of other procedure as required under Arms Act. However, it is not that if recovery is not in presence of independent witness, then the same is to be mechanically ignored on score. If on one hand law requires to join independent witness at the time of recovery, it is only to ensure the authenticity of alleged recovery. On the other hand, non joining of independent witness only make the court circumspect, in such situation, evidence of official witness is to be examined more critically in facts of case. If sincere efforts are made by investigating officer, to join an independent witness and it is also proved by evidence of official witness, that there has been genuine efforts to join an independent witness, then court if finds that evidence as a whole is acceptable regarding recovery of contraband, there being nothing coming on record showing planting of recovered articles or any circumstance even remotely indicating towards false implication, then non joining of independent witness is not fatal to case of prosecution.
FIR No. 77/2008 State Vs. Bhure Singh Page 17 of 2521. The case of prosecution is that PW7 HC Sanjivan (now ASI) was having a secret information about the Maruti Esteem Car bearing no. DL4CG 8006 which would be coming from Haryana carrying illicit liquor for supply in the area of CR Park. PW1 Retd. SI Murari Lal, PW2 Ct. Dinesh and PW3 HC Sanjeev Kumar who were allegedly the members of raiding party deposed that HC Sanjivan who was posted in Excise Department was having the information about the Maruti Esteem car bearing no. DL 4CG8006, whereas, PW5 ASI Vinod Kumar deposed that on 27.04.2008 he alongwith ASI Murari, HC Sanjeev and Ct. Dinesh was on patrolling duty and at around 10.30 am a secret informer met them near Kalka Public School, Madakani, New Delhi and shared the secret information with ASI Murari Lal that an Esteem car bearing no. DL4CG8006 would be coming from Haryana side carrying the illicit liquor. Therefore, there is a contradiction regarding the source of secret information about the Maruti Esteem car which was allegedly carrying the illicit liquor. Further, all the PWs were allegedly on patrolling duty, however, no DD entry to show the presence of PWs at the spot on the date and time of alleged incident has been produced or proved on record.
22. The accused is stated to be a resident of Haryana and I find merits in the arguments raised by Ld defence counsel that it was not possible for the secret informer to tell the exact time of arrival of accused Bhure Singh at Kalka Public School picket near Mandakani Enclave, CR Park, New Delhi and it creates doubt over the case of the prosecution. It is pertinent to mention that PWs admitted during their crossexamination that the place of arrest of accused was a public place and that the raiding party members reached at the spot at about 10:30 a.m during the day time and the accused was allegedly apprehended at 12.10 pm but despite that no public witness was made to join the investigation. Now question is that as FIR No. 77/2008 State Vs. Bhure Singh Page 18 of 25 to whether the conduct of PWs if taken into consideration reveals that sincere efforts were made to join the public/independent witness at the time of alleged recovery and apprehension of the accused. In my considered opinion, all the witnesses who were allegedly member of raiding team have not complied the directions and legal provisions as laid down by Hon'ble High Court of Delhi regarding search and joining of independent witness in the investigation.
23. As per rukka after apprehension of the accused with illicit liquor, sincere efforts have not been made by the police to join independent public persons in the police proceedings despite availability of such witnesses. Even PW1 Retd. SI Murari Lal during his cross examination could not tell the identity, physical description or age of public persons whom he requested to join the investigation which creates doubt over the arguments raised by the prosecution that efforts were made to join the public person in the investigation. After the apprehension of the accused, IO of the case could very well have served the passersby/public witnesses with notice in writing to join the police proceedings inasmuch as at that point of time accused already stood apprehended and there was no possibility of accused persons escaping their arrest or crime going undetected. At least in the facts and circumstances of the case, in my opinion, IO must have asked the passersby/persons available at the spot by serving them notice in writing and in case of their refusal IO must have taken action against them u/s 187 IPC. Facts and circumstance of the case suggest that no sincere efforts have been made by police official to join independent public witnesses in the police proceedings. In this regard reliance can be placed on case titled Anoop Joshi V/s State, 1992 (2) C.C.Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
FIR No. 77/2008 State Vs. Bhure Singh Page 19 of 25'' It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
24. In a case law reported as Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: '' I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between FIR No. 77/2008 State Vs. Bhure Singh Page 20 of 25 them and the petitioner''. ''4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are 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 Investigating Officer can take action against such a person under the law.
Had it been a fact that he witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law.
The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining 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''.
25. In case law reported as Sadhu Singh Vs State of Punjab, 1997 (3) FIR No. 77/2008 State Vs. Bhure Singh Page 21 of 25 Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under: '' In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused'' ''6.
In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.
26. Further, as per evidence on record, after its use the seal which was used on the pullanda containing the case property allegedly recovered from the accused was given to none else but to one who is a material prosecution FIR No. 77/2008 State Vs. Bhure Singh Page 22 of 25 witness i.e. PW3 HC Sanjeev Kumar who is a witness to the alleged recovery of the illicit liquor. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view the aforesaid fact, chances of fabrication of case property cannot be ruled out.
27. In the present case, the seal was not handed over by the IO to an independent person prior to sending the case property for FSL examination and it leads to an apprehension of manipulation of the case property by the IO. Further, there is a delay of 7 months in sending the case property to FSL and during that period the seal remained in the possession of the IO. Further, when the case property was produced before this Court for the first time, the seal on some of the pullandas containing the case property was found broken which creates substantial doubt over the case of the prosecution. Even no sincere investigation regarding source of alleged illicit liquor was conducted by the IO.
28. The prosecution has also alleged that the accused was also involved in the commission of offence u/s 63/63B of Copyright Act r/w s. 471 IPC as fabricated wrappers of various brands of liquor were also recovered from the possession of the accused.
29. Section 63 of the Copyright Act provides punishment of infringement of copyright and it states that any person who knowingly infringes or abets the infringement of the copyright in a work or any other right conferred by this Act shall be punished.
30. Section 13 of the Copyright Act provides that the copyright subsists in original (i) literary, (ii) dramatic, musical and artistic work, (iii) in a cinematograph film and (iv) sound recording.
31. In the judgment of Dr. A K Mukherjee Vs. State & Anr, 54 (1994) DLT 461, Hon'ble Delhi High Court held that "A bare perusal of the provision FIR No. 77/2008 State Vs. Bhure Singh Page 23 of 25 would go to show that emphasis is on the words 'knowingly infringes ....the copyright in a work'. These words clearly postulate a knowledge on the part of the accused that he was infringing the Copyright in a work. Mere possibility of his having known it would not suffice. There has to be a clear and conclusive proof of the requisite knowledge. Even the existence of reasonable means of knowing would not be enough. In short thus the use of word "knowingly" in the provision results in requiring 'mens rea in the full sense'. This, in short, being the legal requirement under section 63 of Copyright Act, evidence shall have to be led to bring home the required guilty knowledge".
32. As discussed above the alleged recovery of illicit liquor from the possession of the accused is highly doubtful and considering the evidence brought on record, it cannot be said that the accused was also found in possession of wrappers of various brands of whiskey as alleged. As per case of prosecution the accused was taken to his house for alleged recovery of wrappers but the IO even at that time did not join any public person in the investigation which further creates substantial doubt over the case of prosecution. Further, no evidence has been produced on record to prove that accused Bhure Singh forged or fabricated the wrappers as alleged. It is also pertinent to mention that no complaint from any company whose wrappers were allegedly fabricated is received by the IO nor any such complaint is filed on record. The bald allegations levelled against the accused regarding fabrication of wrappers of various brands of liquor as alleged could not be substantiated nor any inquiry was done during the investigation from the alleged companies of liquors whose wrappers were allegedly found in possession of the accused as alleged by the prosecution.
33. Considering the totality of facts and circumstances, the case put forth by FIR No. 77/2008 State Vs. Bhure Singh Page 24 of 25 the prosecution does not seem to be probable and it cannot be said that the prosecution has proved its case beyond reasonable doubts. Therefore, in view of the abovesaid facts and circumstances, I am of the opinion that benefit of doubt is to be given to the accused and as a consequence thereof accused is entitled to be acquitted in the present case.
34. Accordingly, accused Bhure Singh is held "not guilty" and is accordingly acquitted of the offence punishable u/s 78/61/1/14 Punjab Excise Act & u/s 63/63B Copyright Act r/w s. 471 IPC.
Announced in the open Court Today on 28.11.2018 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/28.11.2018 FIR No. 77/2008 State Vs. Bhure Singh Page 25 of 25