Delhi District Court
State vs . Rajni on 8 April, 2015
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Rajni
FIR NO: 277/07
P. S Sangam Vihar
U/s 61 Excise Act
Unique ID no. 02403R0114582008
JUDGMENT
Sl. No. of the case : 2082/8 (26.3.2011)
Date of its institution : 22.1.2008
Name of the complainant : Ct. Anoop Kumar, No. 3013/SD, then
posted at PS Sangam Vihar, New
Delhi.
Date of Commission of offence : 26.3.2007
Name of the accused : Rajni, W/o Sh. Jackey, R/o G9/83,
Sangam Vihar, New Delhi.
Offence complained of : 61 Excise Act
Plea of accused : Not Guilty
Case reserved for orders : 8.4.2015
Final Order : Acquittal
Date of orders : 8.4.2015
BRIEF STATEMENT OF FACTS FOR THE DECISION:
State Vs. Rajni 1/7 FIR no. 277/07
1. This is the prosecution of the accused Rajni upon a charge sheet filed by the police station Sangam Vihar under section 61 Excise Act.
2. The allegations against the accused are that on 26.3.2007 at about 6.55 pm at Gali no. 9, G Block, Sangam Vihar, New Delhi accused was found in possession of 96 quarter bottles of illicit liquor. This country made liquor was being carried by accused without any permit or license and in contravention of Notification of Govt. of NCT Delhi.
3. After completing the formalities, investigation was carried out by PS Sangam Vihar and a charge sheet was filed against the accused. The charge was framed against the accused u/s 61 Excise Act, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined four witnesses.
5. PW 1 W/ASI Nirmala Devi deposed about arrest and personal search memo of accused and got exhibited the same as Ex.PW1/A and Ex.PW1/B. She was cross examined by Ld. Counsel for the accused. PW 2 ASI Dayaram deposed about registration of FIR upon rukka and got exhibited the same as Ex.PW2/A and Ex.PW2/B. He was cross examined by Ld. Counsel for the accused. PW 3 Ct. Ashok Kumar deposed about entering DD no. 20 and got exhibited the same as Ex.PW3/A. He was cross examined by Ld. Counsel for the accused. PW 4 HC Anoop Kumar deposed about his involvement in the investigation. He also proved certain documents like seizure memo of case property Ex.PW4/A, his statement Ex.PW4/B, arrest and personal search memo of accused Ex.PW1/A and Ex.PW1/B and case property Ex.P1. He was cross examined by Ld. Counsel for the accused.
6. During further prosecution's evidence it was noted that seal on the case property is broken and some of the quarter bottles are empty, therefore the case of the prosecution had become tainted and no purpose would have been served by calling State Vs. Rajni 2/7 FIR no. 277/07 other prosecution's evidence. Hence, the same stood closed vide order dated 8.4.2015.
7. After these witnesses were examined, the accused was examined u/s 313 Criminal Procedure Code, 1973 (for short "the Code") in which she has denied the incriminating evidence against her and further stated that she does not wants to lead defence evidence. Consequently, matter was posted for final arguments.
8. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
9. After going through the complete evidence and records of this case I am of the view that the accused deserves acquittal in this case on the following grounds.
10. Firstly, if the police personnel who has apprehended the accused with the illicit liquor was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the State Vs. Rajni 3/7 FIR no. 277/07 departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
11. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no. II, they were patrolling in the particular area. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
12. The next defence is that the public witnesses are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. Not even a single public witness has been examined by the prosecution nor joined in the investigation and no reason has been put forward by the prosecution witnesses that for what reason they are unable to gather support from public or independent witnesses to establish the guilt of the accused. Although, it can be said that it was a chance recovery but the State Vs. Rajni 4/7 FIR no. 277/07 incident had occurred from in a busy locality and therefore, it cannot be said that no public person would have been available at the spot. And even if the prosecution has not associated the public witnesses, it was incumbent upon the prosecution to at least put forward the reasons for not doing so. The failure on the part of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"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 shop keepers 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."
13. In "Roop Chand Vs. The State of Haryana 1999 (1) C.L.R, the Punjab and Haryana High Court held as under: "3. 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 State Vs. Rajni 5/7 FIR no. 277/07 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 so on the ground that their joining will result into enmity between 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 the 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 non joining 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".
14. In "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court observed that "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 stereo type statement of non availability will not be sufficient particularly when at the relevant State Vs. Rajni 6/7 FIR no. 277/07 time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
15. Since all the witnesses are police personnels and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police.
16. Furthermore, during the evidence of the prosecution's witness, it was noted that seal on the case property is broken and some of the quarter bottles are empty, therefore the case of the prosecution had become tainted and no purpose would have been served by calling other prosecution's evidence. Therefore, serious doubt arises regarding the veracity of the testimony of the prosecution's witnesses with regard to the recovery of illicit liquor.
17. In a case titled as Satish Mehra Vs. Delhi Admn. & Anr. 1996 JCC 507 Hon'ble Supreme Court of India, it is held that "in a case where, there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on the future date"
18. On the basis of aforesaid discussions, it is held that the prosecution has failed to prove its case beyond reasonable doubt, hence the accused Rajni is acquitted of the offence u/s 61 Excise Act. She is set at liberty.
Announced in the open court (Navjeet Budhiraja)
on 8.4.2015 Metropolitan Magistrate04,
South, New Delhi
State Vs. Rajni 7/7 FIR no. 277/07