Delhi District Court
State vs . Sandeep Kumar on 30 September, 2014
FIR No. 119/10
PS: Vijay Vihar
U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar
IN THE COURT OF VIPLAV DABAS MM04(NORTH WEST)
ROHINI COURTS, DELHI
State Vs. Sandeep Kumar
FIR No. 119/10
PS: Vijay Vihar
U/s 78/61/1/14 Ex. Act.
Case ID No. 02404R0247102010
Date of Institution of case : 16.09.2010
Date of Judgment : 30.09.2014
JUDGMENT:
a) Date of offence : 05.04.2010 b) Offence complained of : U/s 78/ 61/1/14 Excise Act c) Name of Accused, her : Sandeep Kumar, parentage & residence S/o Sh. Sahib Singh R/o Village Bahrana, Tehsil Beri, District Jhajjar, Haryana d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted Page No.1/13 FIR No. 119/10 PS: Vijay Vihar U/s 78/61/1/14 Ex. Act. State Vs. Sandeep Kumar BRIEF FACTS AND REASONS FOR DECISION:- Case of the prosecution in brief is as follows:-
1. That on 05.04.2010 at about 8:40 a.m on the bridge(pul) of Ganda Nala, Near Old Police Post, Budh Vihar, Delhi within the jurisdiction of police station Vijay Vihar, accused was found in possession of illicit liquor as per seizure memo and rukka marked as mark A and mark B which was being transported/ carried in a Santro Car bearing no. HR 26AJ 5846 without any permit or valid licence and thus the accused committed an offence punishable under section 78/61-1-14 of Punjab Excise Act.
2. Court took cognizance of the abovesaid offence u/s 78/61-1-14 Punjab Excise Act and as a prime facie case was made out against the accused, charge was accordingly framed against him for an offence u/s 78/61-1-14 Punjab Excise Act to which accused pleaded not guilty and claimed trail.
3. To prove its case, prosecution has examined seven witnesses.
4. PW-1 Head Constable Madhu Sharma No. 559/OD, Police Station South Rohini deposed that on 05.04.2010 she was working as Duty Officer at police station Vijay Vihar and registered the case FIR exhibited as Ex. PW1/A in the present case. The endorsement on the rukka is Ex. PW-1/B. The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity thereby amounting to its admission by/ on behalf of accused which proves the FIR.
5. PW-2 Constable Dhanraj PIS No. 28880671, EIB L Block, Vikas Bhawan, ITO deposed that on 05.04.2010 he was posted at police station Vijay Vihar and on that day Page No.2/13 FIR No. 119/10 PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar he alongwith constable Yogesh were present at beat and when they reached near the old police post near Budh Vihar, Nala Pul while patrolling they saw that one Santro Car bearing no. HR 26 AJ 5846 of green colour being driven by the accused present in the Court was coming from the side of Budh Vihar, that on suspicion he got it stopped and on checking heavy quantity of liquor was recovered from the said car, that he gave information of the same at police station vide DD entry no. 8A which is Ex. PW-2/A and thereafter IO came on the spot who recorded his statement Ex. PW-2/B, that the IO asked 3-4 public persons to join the proceeding but none agreed, that IO checked the vehicle which was found containing 10 cartons of illicit liquor kept on back seat and its dickey was found containing 8 cartons, that on each peti "Hawaldar Whisky for sale in Chandigarh and UP" was written and that the each peti was found containing 48 quarters bottles of illicit liquor. PW-2 Constable Dhanraj further deposed that one quarter bottle from each peti was taken out as sample, that the remaining 48 quarter bottles were again kept in the said petis and the said petirs were kept in the separate kattas with the seal of SK, that the sample bottles were tied with the piece of cloth on cap, sealed with the seal of SK and given number from 1 to 18, that the recovered liquor and sample were seized vide seizure memo Ex. PW-2/B and that the car was seized vide seizure memo Ex. PW-2/C. PW-2 Constable Dhanraj further deposed that IO prepared the rukka and handed it over to him for registration of the case, that he returned back to the spot after registration of the FIR and handed over the original rukka to the IO, that the seal after the use was handed over to the constable Yogesh and thereafter the accused was arrested and personally searched vide memos Ex. PW-2/D and Ex. PW-2/E. During the examination in chief the MHC(M) produced case property i.e 18 Kattas sealed with the seal of SK which were opened and exhibited as Ex. P-1 to Ex. P-18. The photographs of the car are Ex. P-19 to Ex. P-21.
During the cross examination the witness deposed that he was on 24 hours duty on beat, that he gave information to the beat officer at 8:50 a.m, the pettis were of brown Page No.3/13 FIR No. 119/10 PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar colour(Khaki) and he saw that on the bottle only "Hawaldar Whisky for Sale in Haryana"
was written again said Chandigarh, that there was no public persons at the place of occurrence, that he deposited the case property at around 2:30 p.m in Malkhana and that IO arrested the accused at around 1:00 p.m and he went for registration of the case at around 11:00a.m. The witness denied the suggestion that accused has been falsely implicated in the present case or that case property was planted upon the accused or that entire investigation was done while sitting at police station.
6. PW-3 Constable Yogesh No. 655/ OD deposed on the similar line as deposed by the PW-2.
During the cross examination the witness deposed that he was on 24 hours duty on beat, that the accused persons were apprehended at Near Purani Police Chowk, Budh Vihar at Pul Ganda Nala, that he did not give information to the beat officer, that pettis were of brown colour(Khaki) and he only saw only "Hawaldar Whisky for Sale in Haryana", again said Chandigarh written on the bottles, that there was no public persons at the place of occurrence, that he deposited the case property at around 2:30 p.m, in Malkhana and that IO arrested the accused at around 1:00 p.m and he went for registration of the case at around 11:00a.m. The witness denied the suggestion that accused has been falsely implicated in the present case or that case property was planted upon the accused or that entire investigation was done while sitting at police station.
7. PW-4 Head Constable Sukhvir Singh No. 180 West, police station Mangolpuri deposed that on 05.04.2010 he was posted as MHC(M) at police station Vijay Vihar, that on that day Head Constable Suresh deposited the case property in the Malkhana, that he made entry of the said case property in register no. 19 at serial no. 108/10(OSR). The copy of the same is Ex. PW-4/A. PW-4 Head Constable Sukhvir Singh further Page No.4/13 FIR No. 119/10 PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar deposed that on 15.10.10 he handed over the sample of case property alongiwth Form M-29 duly sealed with the seal of SK to constable Prithvi Singh for depositing the same in Excise Laboratory Vikas Bhawan vide R.C No. 150/21/10.
During the cross examination the witness deposed that he does not remember the exact time when Head Constable Suresh deposited the case property in the Malkhana.
8. PW-5 Constable Prithvi Singh No. 2247/ Outer, PS Vijay Vihar deposed that on 15.10.2010, MHC(M) handed over samples of liquor with Excise Form M-29 duly sealed with the seal of SK for depositing the same in Excise Office Vikas Bhawan and that he went to the Excise Office and deposited the abovesaid samples of case property as well as Form M-29 vide RC No. 150/21/10 with the MHC(M) against receipt.
During the cross examination the witness deposed that he left the police station for excise office at about 10:00-11:00 a.m and deposited the said sample there but the time of deposition of samples he does not remember.
9. PW-6 Head Constable Suresh Kumar No. 412/ OD PS K.N.Katju Marg deposed that on 05.04.2010 upon receiving DD No. 8A he reached at old police post near Budh Vihar Nala Pul where constable Dhanraj and Yogesh were present and the investigation of the case was marked to him, that both the constables handed over the custody of accused and the said Santro Car containing liquor to him, that he requested two/three public persons to join the investigation but they refused and left the spot without disclosing their identity, that all the petis were checked and each peti was found containing 48 quarters of illicit liquor, that one quarter bottle from each peti was taken out as sample and that the remaining quarter bottles were again kept in the said peti and the said petis were kept in the separate Kattas and sealed with the seal of S.K. PW-6 Head Constable Suresh Kumar further deposed that he filled the form M-29 exhibited as Ex. PW-6/A, seized the recoverd liquor ad samples vide Ex. PW-6/C, prepared the tehreer Ex. PW-6/B and had written case FIR number over the seizure memo Ex.
Page No.5/13 FIR No. 119/10PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar PW-6/C and Ex. PW-2/C and site plan. The MHC(M) produced the case property, the same is Ex. P-1 to Ex. P-18. The photographs of the car are Ex. P-19 to Ex. P-21.
During the cross examination the witness deposed that he reached at the spot at about 9:00 a.m, the he received the DD entry Ex. PW-2/A at about 8:50 a.am, that no other person except both the constables namely Dhanraj and Yogesh and accused met there, that no public witnesses was present at the time when he counted the cartons which were recovered from the accused, that he deposited the case property alongwith samples and Form M-29 at about 2:30 p.m. with the MHC(M) HC Sukhbir Singh in the police station and that recovered cartons at the time of alleged recovery from the accused were not sealed. The witness denied the suggestion that no recovery of such liquor bottles as alleged by the prosecution was ever effected from the accusd nor the accused was arrested alongwith the abovesaid Santro Car which is alleged to be containing illicit liquor at the spot, that all the writing work was done while sitting at the police station and that accused was falsely implicated in this case.
10. PW-7 Head Constable Bhim Singh No. 756/ OD Police Station Narela deposed that on 10.06.2010 he inspected the case file and sent the samples to Excise Control Laboratory on 15.06.2010 and the samples were received on 24.07.2010 and that after completing the investigation he prepared the chargesheet on 29.07.2010 against the accused Sandeep which is Ex. PW-7/A. The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity thereby amounting to its admission by/ on behalf of accused.
11. Vide order dated 22.08.2014, PE was closed by the this Court at request of Ld.APP for the state.
12. On 12.09.2014, statement of accused was recorded and all the incriminating Page No.6/13 FIR No. 119/10 PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar evidence was put to the accused u/s 313 of code of criminal procedure in which he denied all the allegations made against him and stated that he is innocent and nothing has been recovered from his possession. Accused further stated that the recovery has been planted upon him and that he has been falsely implicated in this case. Accused chose not to lead any defence evidence.
13. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused that police had falsely implicated the accused in the present case and there is no public/eye witness of the incident and prosecution miserably failed to prove its case against the accused beyond reasonable doubts.
14. I have heard the Ld. APP for the state as well the defence counsel.
15. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. It is evident from the testimony of PW-2 and PW-3 that accused was apprehended alongwith the alleged liquor at public place and public persons were asked to join the investigation who did not agree still police officials neither served any notice upon them to initiate prosecution for refusal nor recorded their names or addresses to show that the police officials made bonafide efforts to persuade the public persons to join the investigation. It is apparent from the testimony of PW-2, PW-3 and PW-6 that the seal after use was handed over by the IO to Constable Yogesh and not to any independent witness who both are police officials and were posted in the same police station on the relevant date and time which makes it highly probable that the entire proceedings were conducted at the police station, that the case property was tampered with and that nothing was recovered from the accused at Page No.7/13 FIR No. 119/10 PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar the spot. These omissions on the part of the prosecution create doubt on the version that the accused was apprehended with the alleged liquor at the spot by the said PWs.
This failure on the part of prosecution creates reasonable doubt in the prosecution story and is fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused. In support of aforesaid observations, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. 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".
In a case law reported as Roop Chand Vs. The State of Haryana 1999 (1) CLR 69, the Hon'ble Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and Page No.8/13 FIR No. 119/10 PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar 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 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 Page No.9/13 FIR No. 119/10 PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar 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".
In case law reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
"5. 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 improbably 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 stereo-type statement of non availability 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."
Page No.10/13 FIR No. 119/10PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is submitted as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
16. Being guided by abovesaid case laws, it can be said that the seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal.
17. Perusal of examination in chief of PW-2, PW-3 and PW-6 shows that 3-4 public persons were asked by the IO to join the proceedings but they did not agree. However, it is deposed by these witnesses in their cross examination that no public person was present at the place of occurrence. This contradiction in the statements shows that PWs are not reliable and that possibility of these PWs not being present at the spot cannot be ruled out. Further more, PW-6 IO deposed in his examination in chief that on each petti( carton) "Hawaldar Whiskey for sale in Chandigarh U.T" was mentioned. However, PW-2 and PW-3, the witnesses who first apprehended the accused with the illicit liquor on the spot deposed in their examination in chief that Hawaldar Whiskey for sale in Chandigarh and U.P was written on the pettis/ Cartons which is inconsistent with the deposition of Page No.11/13 FIR No. 119/10 PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar IO. This inconsistencies creates doubt on the identity of the illicit liquor allegedly recovered from the accused's car which brings the entire prosecution version under grave suspicion thereby substantiating the defence that alleged recovery was planted on the accused and that he has been falsely implicated in this case. The PW-2 and PW-3 further contradicted their own version during cross examination by deposing that they saw nothing written on the pettis and that "Hawaldar Whiskey for sale in Haryana again said Chandigarh was written on the bottles while in their chief they deposed that "Hawaldar Whiskey" for sale in Chandigarh and U.P was written on the Cartons/ Pettis. This contradiction again raises grave doubt upon the identity of the case property as well as the prosecution version of alleged recovery made in presence of these PWs which falsifies prosecution version. PW-6 deposed during his cross examination that no photographs of Car or Cartons were taken at the time of recovery and that the recovered Cartons were not sealed at the time of recovery which probabilizes the defence version that the alleged recovery was planted upon the accused's Car and that nothing was recovered from the spot. It also indicates that the accused has been falsely implicated in the present case by planting the alleged illicit liquor in the Car after completing the entire proceedings and also planting the said recovery at the police station itself.
18. In the present facts, it is pertinent to mention the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held:
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the cook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove Page No.12/13 FIR No. 119/10 PS: Vijay Vihar U/s 78/61/1/14 Ex. Act.
State Vs. Sandeep Kumar something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond resasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Referecne may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
19. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, accused Sandeep, S/o Sh. Sahib Singh is acquitted of the charge leveled against him. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Case property be confisticated to State and be disposed of after expiry of period of appeal. File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABAS)
on 30.09.2014 MM (N/W-04), Rohini Courts:DELHI
30.09.2014
Page No.13/13