Delhi District Court
State vs . Sattar Ali on 15 December, 2010
FIR No. 215/97
PS: Adarsh Nagar
S/v Sattar Ali
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE: ROHINI COURTS: DELHI
State Vs. Sattar Ali
FIR No. 215/97
PS: Adarsh Nagar
U/S 61-1-14 Excise Act
C. No. 105/98
Unique ID No. 02401R0063671998
Name of the complainant : HC Rajbir Singh
Name and address of the accused : Sattar Ali S/o Sh. Gaffur
Ahmad, R/o House No. 1, Shadi
Nagar, Railway Road, Azadpur,
Delhi.
Offence complained of : 61/1/14 Excise Act
Plea of accused : Pleaded not guilty
Final order : Acquitted
Date of commission of offence : 16.04.1997
Date of Institution : 15.04.1998
Date of reserve for orders : 15.12.2010
Date for announcing the orders : 15.12.2010
Brief Reasons for the judgment :
Vide this Judgment, I shall dispose off the case FIR No. 215/97
1.Charge U/S 61/1/14 Punjab Excise Act IPC was framed against the accused with the allegations that on 16.04.1997 at 06.25 PM at shop No. 1, Shadi Nagar, Azadpur, Delhi, accused was found in possession of 72 half bottles and 143 quarter bottles of liquor without any permit or license. The accused pleaded not guilty and claimed trial.
C/N. 105/98 U. ID No. 02401R0063671998 Page 1 of 5 FIR No. 215/97PS: Adarsh Nagar S/v Sattar Ali
2. In order to prove the charge, prosecution examined four witnesses in total. PE stood closed on 23.09.2010. Statement of accused U/S 313 CrPC R/W Section 281 CrPC was thereafter recorded wherein accused claimed his innocence and did not prefer to lead any DE. Final arguments have been heard. Record has been carefully perused.
3. I shall briefly touch upon the statement of PWs.
4. PW1 HC Gobin Ram is the DO in the present case who proved the FIR as Ex.PW1/A.
5. PW-2 Ct. Jaivir was on patrolling duty on 16.04.97 along with IO / HC Rajbir Singh. PW-2 did not support the prosecution case and during the cross-examination by Ld. APP for the State, he stated that IO kept all 18 samples of samples sealed with seal of RSR from their caps. He stated that he did not remember if IO sealed the empty cardboxes and chadar in a separate pullanda seal of RSR. He did not know as to what is form M-29 and he did not know if IO filed the form M-29 on the spot or not.
6. PW-3 HC Satya Bir Singh supported the prosecution case qua his investigation part and deposed that he along with Ct. Rajbir were on patrolling duty at Azadpur terminal and one secret informer met them. After receiving secret information he along with IO went to the spot and apprehended the accused and recovered the 6 carton boxes of liquor. All the 6 boxes were checked and found serial No. 1 to 3 consist of half bottles of boxer Whiskey and serial No. 4 to 6 found quarter bottles of boxer whiskey. Serial No. 1 to 5 were written boxer whiskey listed for sale in HP only. Serial No. 1 to 3 consist of 24 quarter bottles each. Serial No. 4 and 5 contained 48 quarter bottles each and serial No. 6 contained 47 quarter bottles, total 143 quarter bottles. Al the sample half bottles and quarter bottles were sealed with the seal of RSR and remaining quarter and half bottles were kept in same carton boxes and kept in cement cattas and sealed with the seal of RSR. He deposed about seizure memo C/N. 105/98 U. ID No. 02401R0063671998 Page 2 of 5 FIR No. 215/97 PS: Adarsh Nagar S/v Sattar Ali Ex.PW2/A. He correctly identified the case property recovered from the possession of the accused.
During cross-examination by Ld. Defence Counsel he stated that he could not say whether the IO requested to any shopkeeper to join the raiding party. He could not say if the secret informer specifically pointed out towards the seat of the accused. He stated that he cannot say how the accused and case property was brought to the police station.
7. PW-4 ASI Rajbir Singh is the IO in the present case who supported the prosecution case qua his investigation part. He on receiving secret information went to the spot along with raiding party and apprehended the accused with the case property. He prepared seizure memo Ex.PW2/A. He also filled up Form M-29 at the spot. He also prepared the tehrir Ex.PW4/A and handed over the same to Ct. Jaivir who after registration of the FIR came back at the spot along with the copy of FIR and original tehreer. IO/PW-4 prepared the site plan Ex.PW4/B. He arrested the accused and conducted personal search of the accused vide search memo Ex.PW2/B. He prepared the challan. He identified the case property as Ex.P1 to P6 and Chaddar as Ex.P7.
8. Having touched upon the statements of PWs. I shall consider the rival contention of parties. Accused has highlighted several infirmities in investigation which are being discussed hereunder alongwith the explanation therefore advanced by Ld. APP for the State.
9. It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused and while completing the formalities at the spot but none of the public witnesses was even requested to become witness. This casts doubt about sincere efforts made by the IO to join independent witnesses. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it was observed that such C/N. 105/98 U. ID No. 02401R0063671998 Page 3 of 5 FIR No. 215/97 PS: Adarsh Nagar S/v Sattar Ali explanation that the public persons refused to join the proceedings are unreliable and in Pradeep Narayan V/S State of Maharashtra reported in AIR 1995 S.C. 1930 held that failure of police to join witness from locality during search created doubt about fairness of the investigation benefit of which has to go to the accused.
10. It is settled proposition of law that Sub Section 4 of Section 100 Cr.P.C. is directory provision, however, explanation of non-joining of independent witnesses should be plausible. The explanation put forward by the prosecution for non-joining of independent witness appears to be implausible for reason that there was ample time with the IO at least to note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
11. It is highlighted that as per prosecution story and as per the deposition of PW-2 and PW4, only PW2 and PW4 were together while patrolling and PW-3 joined subsequently. However,PW-3 stated that he along with PW4 was patrolling together. This contradiction seems to be glaring particularly in view of the fact that the relevant DD entry of being on patrolling duty is not proved on record.
12. The next contention of Ld. Defence counsel is that the recovery is doubtful in the light of contradiction in the statement of PW2, PW3 and PW4. PW 3 stated that recovery was effected from under the seat, where accused was sitting in the shop. PW4 merely stated that they recovered 6 cartons of illicit liquor. PW2 stated that 6 boxes covered with chadar were recovered. PW2 and PW4 are silent about the fact that recovery was effected from under the seat of accused. This certainly created a doubt in the prosecution story. It is further highlighted that PW-2 stated in his cross- examination that secret informer left after giving information whereas as per PW-3, informer remained with them throughout and pointed out towards the accused and was present till the apprehension of accused. This contradiction further creates a doubt as the recovery of illicit liquor particularly taking into account that no public witness C/N. 105/98 U. ID No. 02401R0063671998 Page 4 of 5 FIR No. 215/97 PS: Adarsh Nagar S/v Sattar Ali joined the recovery despite availability.
13. It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant / IO HC Rajbir Singh even before registration of FIR. Since, he was present at the spot no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in the case titled as Megha Singh Vs. State of Haryana reported in 1995 Crl. L.J. 3988 and as held in the case titled as Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused.
14. It is also highlighted by accused that on the recovery Memo, the FIR number finds mentioned and it has not been explained by the prosecution. Admittedly, these documents were prepared before registration of FIR and it contains the FIR number, then interference has to be drawn that either FIR 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.
15. It is next pointed out by accused that the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tempered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station.
16. All the lapses in investigation, discussed herein above creates a doubt on the very recovery of 72 half bottles and 143 quarter bottles of illicit liquor from the possession of accused. The lapses are material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint then the entire prosecution case becomes open to serious doubts and challenges. The material is insufficient to record a finding of guilt of the accused and the safer course available is to acquit the accused C/N. 105/98 U. ID No. 02401R0063671998 Page 5 of 5 FIR No. 215/97 PS: Adarsh Nagar S/v Sattar Ali giving him a benefit of doubt. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
17. Accordingly, I acquit the accused Sattar Ali for the offence U/S 61/1/14 Punjab Excise Act. The Bail Bond stands cancelled and surety for the accused person stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to Record Room.
Announced in the Open Court (Neeraj Gaur)
Dated 15.12.2010 Metropolitan Magistrate-IV/NW
Rohini Courts, Delhi
C/N. 105/98
U. ID No. 02401R0063671998 Page 6 of 5