Delhi District Court
Investigating Officer To Join ... vs . on 13 May, 2011
IN THE COURT OF SHRI RAJESH MALIK : MM (WEST) 05
TIS HAZARI COURTS : DELHI
1.FIR No. :110/01
2.Unique Case ID No. :R0537932002
3.Title
3(A).Name of complainant :SI Mahender Singh
3(B).Name of accused :Harjeet Kaur @ Jeeta W/o
Amarjeet Singh R/o B282283,
J J Colony, Chaukhandi, Tilak
Nagar, Delhi.
4.Date of institution of challan :08.03.02
5.Date of Reserving judgment :13.05.11
6.Date of pronouncement :13.05.11
7.Date of commission of offence :10.03.2001
8.Offence complained of :Under Section 61 of Punjab
Excise Act,1914
9.Offence charged with :Under Section 61 of Punjab
Excise Act,1914
10.Plea of the accused :Pleaded not guilty
11.Final order :Acquitted.
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The case of the prosecution in brief is that on 10.03.2001 at about 11:00 am at near B282/83 at road she was found in possession of one plastic can of illicit liquor containing 15 bottles of 750 ml each vide seizure memo Ex.PW1/A without any permit or licence and thereby committed an FIR No. 1/7 offence punishable u/s 61.1.14 Excise Act.
2. Accordingly, charge sheet was filed, copies were supplied to the accused in compliance of section 207 cr.p.c and charge u/s 61/1/14, Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. The prosecution in support of its case examined three witnesses.
PW 3 HC Kamal Singh deposed that on 10.03.01, he was posted as Constable at PS Tilak Nagar. On that day, he along with Ct. Mahavir, Ct. Vinod and HC Bajrang was on patrolling duty and while patrolling, they met SI Mahinder singh and Ct. Uday Singh who were also on patrolling duty and thereafter, they started patrolling together. At about 9.30 pm, while they were present at B Block, J J Colony, Delhi, there one informer gave an information to SI Mahinder that one lady would come from Ravi das Marg side and would go towards Mazar having in possession of plastic can containing country liquor, if raided she could be apprehended. On this information, IO prepared raiding party and requested 4/5 public persons to join the raiding party but non agreed and left the place without disclosing their names and addresses. Thereafter IO prepared a raiding party and they took their position at near Mazar. At about 9.45 pm, accused Harjeet Kaur present in court came from the side of Ravi Das Marg and upon seeing the police, she tried to escape having on her right shoulder one plastic can. They managed to apprehend the accused and the plastic can was checked and it found contained country liquor. Thereafter, upon the instruction of IO, Ct. Mahavir got one bucket, mug and bottle of 750 Ml from the nearby Kabari. IO measured the liquor and upon measuring, it came to 15 bottles of 750 ml FIR No. 2/7 each. From the recovered liquor, one bottle of 750 ml was taken as sample. IO filled form excise and thereafter, the plastic cane and Form Excise and sample bottles were sealed with the seal of MS and seal after use was handed over to HC Bajrang Lal and the case property was seized vide seizure memo Ex.PW3/A. IO prepared rukka and rukka was handed over to Ct. Vinod . Accordingly, he went to PS and got the FIR registered and handed over copy of FIR and rukka to SI Sita Ram who conducted further investigation and collected the case property and memo from SI Mahender Singh. IO arrested accused and prepared site plan. Accused was admitted to police bail . Case property was deposited at Malkhana. He identified the case property as Ex.P1 being recovered from the possession of accused present in the court.
PW1 Ct. Anil Kumar and PW2 Ct. Mahavir are the recovery witnesses who supported the deposition made by PW3.
4. No other PW was examined . PE was closed. Accused was examined u/s 281 Cr.P.C wherein accused submits that he is innocent and has been falsely and wrongly implicated in this case. He further submits that no recovery was effected from her possession. However, she denied to lead any evidence in defence.
5. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully.
6. Now, the stage has been set to examine the case of the prosecution to see whether it inspires confidence and passes the test of probability, credibility and trustworthiness.
7. Further no independent public witness has been joined either FIR No. 3/7 during raid or during investigation despite prior secret information and opportunity. As per the case of the prosecution, the alleged recovery took place at about 11 am and the explanation given that certain public persons were requested but they refused does not appeal to common sense and does not appear plausible as even names and addresses of those requested have not been mentioned. It does not appeal to common sense that police officials even could not obtain the names and addresses of the persons requested. Admittedly no legal action has been taken against any of the persons who refused to join the raid. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
8. In the case of PREM SINGH VS. STATE 1996 CRI.L.J.3604 (DELHI) and in the case of PAWAN KUMAR VS. DELHI ADMN.1989 CRLJ 0127 DEL wherein the court observed as under: ''Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of FIR No. 4/7 the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.''
9. Further, there is also delay of about 30 days in sending the sample property to the excise lab which has not been explained and in such circumstances especially when the seal was not handed over to independent persons and remained with the police officials of the same police station where the property was lying benefit of doubt must be given to the accused as observed in AJIT SINGH VS. STATE OF PUNJAB 1984 (2) RECENT CRIMINAL REPORTS 95.
10. In this case, PW3 HC Kamal Singh during his cross examination admitted that the IO prepared first seizure memo in one go and at one time. But the FIR number has been found mentioned on the recovery memo and it has not been explained by the prosecution how the FIR number was mentioned before registration of FIR. It gives inference that FIR was registered before preparation of memo.
In the case of MOHD. HASHIM VS STATE 1999 (6) A.D. (DELHI) 569 it was observed that when documents are prepared before registration of F.I.R and it contains the F.I.R number then inference has to be drawn that either F.I.R was recorded prior in time or the documents were prepared later on and in such cases benefit of doubt is to be given to the accused.
11. Also in this case no efforts were made to hand over the seal after use to independent public persons and in such cases in visew of SAIFULLA FIR No. 5/7 VS. STATE 1998 (1) CCC 497 (DELHI) and ABDUL GAFFAR VS STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused.
12. In the present case, it is further observed that a lady accused has been involved in the present case and despite prior secret information, IO has not made any efforts to join any lady police official in the raiding party. Further, even after the registration of FIR, second IO SI Sita Ram who conducted investigation has not cared to call any lady police official from PS to join proceedings. Thus, the arrest of the accused on the spot is doubtful.
13. It has been observed that during the testimony of PW1 Ct. Anil Kumar, when the case property was produced in court, the lid of the can is easily removable without disturbing the seal. No such explanation has been tendered by MHCM as to under what circumstances and when the seal was got broken. In such circumstances, benefit should be given to the accused.
14. Now, since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts , the only plausible findings which can be given against the accused are that of not guilty. Accordingly, the accused is acquitted in the present case. Her surety is discharged. Bail bond cancelled. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
File be consigned to records after due compliance.
Announced in the open (RAJESH MALIK) Court on 13.05.11 MM ( West)05/NEW DELHI FIR No. 6/7 FIR No. 110/01 PS Tilak Nagar 13.05.11 Present: Ld. APP for the State. Accused in person with counsel. Final arguments heard.
Vide separate judgment dictated and announced in the open court, accused is acquitted of offences under Section 61.1.14 Excise Act.
Her bail bond is extended till the expiry of period of limitation for appeal. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
File be consigned to records after due compliance.
(RAJESH MALIK) MM( West)05/NEW DELHI FIR No. 7/7