Delhi District Court
State vs . Mahesh on 13 May, 2013
STATE vs. MAHESH
IN THE COURT OF SH. RAVINDER SINGH, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE (SHAHDARA), KKD
COURTS DELHI.
State vs. Mahesh
FIR No. 671/2007
PS : Anand Vihar
U/s 61/1/14 Excise Act
State vs. Mahesh
JUDGEMENT
a) Serial No. of the case : 02402R0238482008
b) Date of Institution : 02.04.2008
c) Date of commission of offence : 30.11.2007
d) Name of complainant : Ct. Avinash
e) Name of the accused, and : : Mahesh S/O Sh. Ramesh
parentage and address R/o E85/408, JJ Camp,
Mayur Vihar, Delhi.
f) Offence complained of : U/s 61/1/14 Punjab Excise
Act
g) Plea of the accused : Pleaded not guilty
h) Date of judgment reserved : Not reserved
i) Final order : Acquittal
j) Date of such Order : 13.05.2013
Brief reasons for the decision of the case
1. The case of prosecution is that on 30.11.2007 at 10.30P.M FIR NO.671/2007 PAGE 1/8 STATE vs. MAHESH near Railway Officers' Club, Delhi, the accused was found in possession of country made liquor in can without any permit or licence by Ct. Ravinder and Ct. Avinash while they were on petrolling duty. Statement of Ct. Avinash was recorded and FIR no.671/07 was registered in PS Anand Vihar against the accused U/S 61/1/14 Excise Act. Statement of witnesses were recorded, site plan was prepared, accused was arrested and after completion of all necessary investigation challan U/S 173 Cr. P.C was presented in the court for trial.
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, prima facie charge for the offence under section 61/1/14 Excise Act was made out against the accused. Charge was framed accordingly against the accused on 02.07.2009. Thereafter case was fixed for prosecution evidence.
4. In support of its case, prosecution has produced and examined five witnesses namely Ct. Ravinder as PW1, Ct. Avinash as PW2, ASI Murari Lal as PW3, H.Ct. Pawan Kumar as PW4 & IO/ASI Deshraj as PW5.
FIR NO.671/2007 PAGE 2/8
5. PW1 & PW2 are the witnesses of recovery and arrest of accused. Both witnesses deposed that on 30.11.2007, they were on petrolling duty and at 10.30P.M, they saw a person with plastic can in his hand who was coming towards Railway Officers' Club but when he saw them, he turned and tried to flee away, so they apprehended him with can containing illicit liquor. They further deposed that H.Ct. Deshraj came on spot and he recorded statement of PW2 Ex.PW2/A and prepared rukka which he handed over to PW1 for registration of case FIR. PW1 & PW2 further deposed that IO seized the can of illicit liquor vide seizure memo Ex.PW1/A. They further deposed that IO took out a sample from can which was sealed with the seal of 'DS'. PW2 further deposed that IO prepared site plan on his instance. They further deposed that IO arrested the accused vide memo Ex.PW1/B and conducted the personal search of accused vide memo Ex.PW1/C. Both witnesses identified the can as Ex.P1.
5A. PW3/ASI Murari Lal deposed that he recorded case FIR no. 671/07 Ex.PW3/A on receipt of rukka from Ct. Ravinder and made endorsement on rukka Ex.PW3/B. 5B. PW4 deposed that he handed over one quarter bottle liquor of sample and excise form M 29 to Ct. Ravinder who produced the receipt FIR NO.671/2007 PAGE 3/8 STATE vs. MAHESH after depositing the sample in Excise Department. 5C PW5/ IO of the case deposed on the investigating aspect of the case. He deposed that he reached on spot where he met Ct. Avinash and Ct. Ravinder who produced the accused with can filled with illicit liquor. PW5 further deposed that he recorded statement of Ct. Avinash Ex.PW2/A and prepared rukka Ex.PW5/A and sent Ct. Ravinder for registration of FIR. He further deposed that he took out sample from can which he sealed with the seal of 'DS' and filled M29 Excise Form. PW5 further deposed that he seized the case property vide memo Ex.PW1/A and prepared site plan Ex.PW5/D and also arrested the accused vide memo Ex.PW1/B and conducted personal search vide memo Ex.PW1/C.
6. Statement of accused was recorded under section 313 Cr. P.C in the manner prescribed under Section 281 Cr.P.C wherein he denied all the allegation of prosecution and further stated that witnesses are false and have wrongly deposed against him and they fabricated all the documents. However, accused did not prefer to lead any defence evidence.
7. 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 FIR NO.671/2007 PAGE 4/8 STATE vs. MAHESH record and the relevant provisions of the law.
8. 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.
9. PW1 deposed that PW5 handed over seal to him after sealing the sample. PW2 also deposed the same thing but contrary to the testimony of PW1 & PW2, PW5 deposed that he handed over the seal to PW2. It is also pertinent that the testimony of PW5 to the effect that he filled the form M29 of Excise Act on the spot has not been supported by PW1 & PW2 as they have not deposed about filling of form M29 on spot. In view of this, I am of considered opinion that there are material contradiction in the testimonies of PW1, PW2 & PW5, hence their testimonies cannot be relied upon.
10. Further PW5 deposed that he sealed the can with seal of 'DS' after taking out sample from it. Seizure memo Ex.PW1/A also reveals that can was sealed with seal of 'DS'. Admittedly, MHC(M) produced the empty can without seal in court so if PW5 sealed the can with the seal of FIR NO.671/2007 PAGE 5/8 STATE vs. MAHESH 'DS', then why the said can was produced empty without seal by the MHC(M). So, under these circumstances, it is clear that the case property i.e. can filled with illicit liquor has not produced in court. In view of this discussion, I am of considered opinion that it is doubtful that can of 10 litre filled with illicit liquor was recovered from the possession of accused.
11. 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 so this makes the case of the prosecution weak and suspicious. In State of Punjab vs. Gurmel Singh 1991(2) Recent Criminal 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."
12. PW1 & PW5 in their examination in chief have deposed that sample of illicit liquor was taken from 10 litre cane of illicit liquor which was sealed with seal of 'DS' and seal after use was given to PW1. Their testimony is totally silent as to whether any seal, handing over memo was FIR NO.671/2007 PAGE 6/8 STATE vs. MAHESH prepared. Why such memo was not prepared, which constitute a material link evidence. Such linking evidence is lacking in the prosecution case.
13. Further, the perusal of the seizure memo of illicit liquor Ex.PW1/A shows that FIR number is mentioned therein. There is not a single word in the testimony of the PW5 as to when and at what stage FIR number was inserted in Ex.PW1/A. Moreover, the testimony of PW1 & PW2 are also totally silent on this aspect. 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.
14. In these circumstances, the testimony of the prosecution witnesses do not inspire confidence.
15. Apart from this, the presence of PW1 & PW2 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 FIR NO.671/2007 PAGE 7/8 STATE vs. MAHESH 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.
16. It is true evidence it to be weighted and not counted in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has been given to the accused. In view of this, I am fortified with the observations made in the case State of Rajasthan vs. Daulat Ram 1980 CAR 169 (SC) where it was held that prosecution failed to prove all the links. Accused was acquitted.
17. In view of the above, I hold that prosecution has failed to prove its case beyond reasonable doubt against accused and he is given the benefit of doubt and therefore accused Mahesh is acquitted of the offence punishable U/S 61 of Punjab Excise Act.
Announced in Open Court (RAVINDER SINGH)
13.05.2013 Additional Chief Metropolitan Magistrate
Shahdara Distt., KKD Courts, Delhi
FIR NO.671/2007 PAGE 8/8