Delhi District Court
State vs . Kamla on 11 October, 2013
STATE vs. Kamla
IN THE COURT OF SH. RAVINDER SINGH, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE (SHAHDARA), KKD
COURTS DELHI.
State vs. Kamla
FIR No. 153/07
PS : Anand Vihar
U/s 61/1/14 Excise Act
a) Serial No. of the case : 02402R0553812007
b) Date of Institution : 08.08.2007
c) Date of commission of offence : 22.03.2007
d) Name of complainant : Ct. Rakesh
e) Name of the accused, and : Smt. Kamla W/o Saran Singh
parentage and address R/o H. No. 28/177, Kasturba
Nagar, Shahdara, Delhi.
f) Offence complained of : U/s 61/1/14 of Punjab Excise Act
g) Plea of the accused : Pleaded not guilty
h) Date of judgment reserved : Not reserved
i) Final order : Acquitted
j) Date of such Order : 11.10.2013
JUDGMENT
Brief reasons for the decision of the case
1. The case of prosecution is that on 22.03.2007 Ct. Rakesh Kumar and Ct. Vipin were on patrolling duty in the area of Bhikam Singh Colony where a secret informer informed them about the accused FIR NO.153/07 PAGE 1/8 STATE vs. Kamla so on the instance of secret informer they apprehended the accused who was found in her possession of one plastic bag (katta) containing cartoon of 48 quarter bottles of illicit liqor. Meanwhile IO/HC Yogender Singh and Lady Ct. Harbeer Kaur reached on spot so IO recorded the statement of Ct. Rakesh and prepared the rukka and got the case FIR registered. Statement of witnesses were recorded, site plan was prepared, accused was arrested and after completing the necessary investigation chargesheet was presented in the court for trial of accused U/s 61/1/14 Excise Act.
2. Accused was summoned to face trial so copy of challan as required U/S 207 Cr.P.C, was supplied to him. Thereafter case was fixed for consideration of charge.
3. After hearing arguments and on perusal of record charge for the offence under section 61/1/14 Excise Act was framed against the accused on 12.10.2009. Thereafter case was fixed for prosecution evidence.
4. In support of its case, prosecution has produced and examined four witnesses namely Ct. Rakesh Kumar as PW1, Lady Ct. Harbeer Kaur as PW2, HC Yogender Singh as PW3 and Ct. Vipin as PW4. FIR NO.153/07 PAGE 2/8
STATE vs. Kamla 4A. PW1 deposed that he was on patrolling duty along with Ct. Vipin on 22.03.2007 and on the instance of secret informer they apprehended the accused who was carrying plastic bag (katta) on her head. He further deposed that plastic bag of accused containing of 48 quarter bottles of illicit liquor. He further deposed that IO arranged 10 litre plastic cane and poured all the quarter bottles into it and took out one bottle from cane as a sample. He further deposed that IO sealed the cane and sample quarter bottle with the seal of YS and recorded his statement Ex. PW1/A and further IO also seized the liquor vide memo Ex. PW1/B. He further deposed that accused was arrested after registration of case FIR vide memo Ex. PW1/D. 4B. PW2 deposed that she along with IO/HC Yogender reached on spot where Ct. Rakesh and Ct. Vipin handed over the accused along with 48 quarter bottles of illicit liqor. IO/HC Yogender seized the case property vide memo Ex. PW1/B and arrested the accused vide arrest memo Ex. PW1/C and she conducted the personal search of accused vide memo Ex. PW1/D. 4C. PW3 deposed that he along with Ct. Harbeer Kaur reached on spot where Ct. Rakesh and Ct. Vipin produced the accused along with FIR NO.153/07 PAGE 3/8 STATE vs. Kamla illicit liqour. He recorded the statement of Ct. Rakesh Kumar Ex. PW1/A and prepared rukka Ex. PW3/A and got the case FIR registered from Ct. Vipin. He further deposed that he took a quarter bottle from cartoon for sample and sealed the same with the seal of "YS". Cartoon was also sealed with the seal of "YS" then he filled Excise Form No. M29. He further deposed that he seized the case property vide memo Ex. PW1/B and prepared the site plan of the spot Ex. PW3/C. He further deposed that he arrested the accused vide memo Ex. PW1/C and Lady Ct. conducted personal search of accused vide memo Ex. PW1/D. 4D. PW4 deposed almost the same facts as deposed by PW1.
5. Statement of accused was recorded under section 313 Cr. P.C in the manner prescribed under Section 281 Cr.P.C wherein she denied all the allegation of prosecution and further stated that witnesses are false and have wrongly deposed against her and they fabricated all the documents. However, accused did not prefer to lead any defence evidence.
6. I have heard the arguments of Ld. APP for the State and the Ld. Counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
FIR NO.153/07 PAGE 4/8
7. On careful perusal and analysis of the entire evidence on record I find that no corroborative, consistent reliable and sufficient evidence to make up the edifice of the prosecution case has been produced by the prosecution. Moreover, the testimonies of the prosecution witnesses do not inspire confidence.
8. The material witnesses of the prosecution are PW1, PW2, PW3 and PW4 but their testimonies are not consistent and corroborated. According to PW1, when he and PW4 apprehended the accused on the instance of secret informer, the accused was carrying plastic bag (katta) on her head whereas according to PW4 accused was having katta on her hand. Further rukka Ex. PW3/A and seizure memo Ex. PW1/B reveals that all the 48 quarter bottles of liqor were poured into a 10 litre cane which was arranged by IO/PW3 and thereafter IO took out a quarter bottle as a sample from the cane. PW1 and PW4 also testified the same fact in court but PW3/IO who prepared rukka Ex. PW3/A and seizure memo Ex. PW1/B has not deposed so. Further PW2 who accompanied PW3 on spot also not deposed so under these circumstances, it is clear that rukka Ex. PW3/A and seizure memo Ex. PW1/B are not corroborated with testimony of PW3 and PW2.
FIR NO.153/07 PAGE 5/8
9. It is pertinent that PW3 took out a quarter bottle as a sample out of 48 quarter bottles and he sent the same to Excise Lab. But in court MHC (M) produced all the 48 empty quarter bottles as Ex. P2. Further according to PW1 and PW4 the cane was sealed with the seal of "YS" but the cane produced in court is without seal so under these circumstances it appears that the case property produced in court is not the same which is related to the case.
10. Admittedly, during the investigation of the case no public witnesses were joined nor seems to be any sincere efforts made in this regard, when it was possible to do as PW2 and PW4 admitted that spot was a residential area so this makes the case of the prosecution weak and suspicious. In State of Punjab vs. Gurmel Singh 1991(2) RecentCriminal Reporters 361 Hon'ble Court held that: "Where there were 20 shops nearby and the investigating officer had ample opportunity to join independent witness statement of official witnesses would not be sufficient to convict the accused. Contention of the prosecution that the police officials had no ill will to involve the accused in false case was repelled."
11. Further, the perusal of the seizure memo of illicit liquor Ex.PW1/B shows that FIR number is mentioned therein. There is not a FIR NO.153/07 PAGE 6/8 STATE vs. Kamla single word in the testimony of the PW3 as to when and at what stage FIR number was inserted in Ex.PW1/B. Moreover, the testimony of PW1, PW2 and PW4 are also totally silent on this aspect. Further they all deposed that seizure memo Ex. PW1/B was prepared in one sequence from top to bottom and nothing was added or deleted after their signature in their presence. In the circumstances either FIR was recorded posterior in time or that documents were prepared after the recording of FIR. In case Mohd. Hasim vs. State VI AD (Delhi) 569 (Hon'ble Mr. Justice M S A Siddiqui) it was observed that documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and was hold that in both case, prosecution case would collapse.
12. Apart from this, the presence of PW1, PW2, PW3 and PW4 at the spot is not proved. If they had departed from PS for patrolling duty the entry to this effect must exist in the Roznamcha but that has not been proved, raising an adverse presumption against the prosecution U/S 114
(g) of the Evidence Act and if the said Roznamcha had been produced it would have not shown their departure at all.
13. In these circumstances, the testimony of the prosecution FIR NO.153/07 PAGE 7/8 STATE vs. Kamla witnesses do not inspire confidence.
14. In view of the above, I hold that prosecution has failed to prove its case beyond reasonable doubt against accused and therefore accused Kamla is acquitted of the offence charged U/S 61 of Punjab Excise Act.
Announced in Open Court (RAVINDER SINGH)
11.10.2013 Additional Chief Metropolitan Magistrate
Shahdara Distt., KKD Courts, Delhi
FIR NO.153/07 PAGE 8/8