Delhi District Court
In State Of Punjab vs . Gurmel Singh 1991 (2) Recent on 4 February, 2010
1
IN THE COURT OF SH. RAVINDER SINGH :
METROPLITAN MAGISTRATE: NEW DELHI
FIR No. 112/95
PS Malviya Nagar
U/s 61/1/14 Excise Act
State v. Bhagwan Dass
JUDGMENT :
a. Srl. No. of the case : 18/2 b. Date of Institution : 8/11/95
c. Date of Commission of Offence : 9.03.95 d. Name of the complainant : H.C. Daya Nand e. Name of the accused and his : Bhagwan Dass parentage and address S/o Sh. Prem Singh, R/o Village Hajbalpur Tehsil Tappar, Distt. Aligarh, UP f. Offence complained of : U/s 61/1/14 Excise Act g. Plea of the accused : Pleaded not guilty h. Order reserved : 04.02.2010 i. Final Order : Acquitted j. Date of such order : 04.02.2010 Brief reasons for the decision of the case.
1. The case of the prosecution in brief is that on 9.03.95 at about 4.40 pm near M B Road, Mandir Marg Crossing, New Delhi, within the jurisdiction of P.S. Malviya Nagar the accused was found in possession of two bags containing 12 and 8 bottles of illicit liquor 2 without permit or licence. As accused was found in possession of illicit liquor without permit so Complaint was filed in PS Malviya Nagar and thereafter FIR no. 112/95 was registered U/s. 61/1/14 Excise Act. Statement of witnesses were recorded , site plan was prepared and the accused was arrested and after completion of both necessary investigation challan U/s 173 Cr.P.C was presented in the court for trial.
2. The accused was summoned by the Court to face the 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. On hearing arguments and on perusal of record, prima facie charge for the offence U/s 61/1/14 Excise Act was made out against the accused. Accordingly charge was framed vide order dated 22.09.2000. Thereafter case was fixed for prosecution evidence.
4. In support of its case prosecution has produced and examined two witnesses namely A.S.I. Som Nath as PW 1 and Ct. Vinod Kumar as PW2.
5. PW 1 A.S.I. Som Nath testified that he recorded FIR 112/95 Ex. PW 1/A on 9.03.95 on receipt 3 of rukka from Ct. Vinod.
6. PW 2 Ct. Vinod Kumar testified that on 9.03.95 he was on petrolling duty along with H.C. Daya Nand and during petrolling duty he received secret information that one person was coming from the side of M B Road towards Mehrauli with illicit liquor so they held nakabandi and stopped the accused coming with two cloth bags and on checking 20 bottles of liquor were recovered out of which four bottles were taken out and bottles were seized vide memo Ex. PW 2/A. PW 2 further testified that I.O. prepared rukka Mark A and got the F.I.R. registered through him and personal search of accused was conducted vide memo Ex. PW 2/B. PW 2 correctly identified the two bags as Ex. P1 and P2, 14 filled bottles as Ex. P3 to P16 and two empty bottles as Ex. P17 and P18.
During cross examination PW 2 testified that they requested public persons to join the investigation but none agreed and left the spot and the seal was with the I.O.
7. Statement of accused was recorded U/s 313 r/w. 281 Cr.P.C., wherein the accused denied the allegations of the prosecution and stated that he is innocent and has been falsely implicated in this case and nothing has been recovered from his possession.
4However the accused did not prefer to lead any evidence in his defence.
8. I have heard the ld. APP for the State and ld counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
9. It is the case of prosecution that PW2 and H.C. Daya Nand were on petrolling duty on 9.03.95 and on the instance of secret informer accused was apprehended with the two bags containing 20 bottles of illicit liquor. H.C. Daya Nand did all the proceedings on the spot and prepared tehrir and sent PW 2 for registration of F.I.R. to P.S.. Thereafter PW 2 arrested the accused and prepared the site plan.
10. 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.
11. The material witness of prosecute is PW 2 /Ct. Vinod Kumar who testified that he and H.C. Daya Nand formed the raiding party and apprehended the accused along with 2 bags containing 20 bottles of illicit liquor but 5 according to rukka Mark A raiding party consist of secret informer who was very much present at the time of recovery of illicit liquor. It is also pertinent that the seal of GS was handed over to the PW2 by H.C. Daya Nanad as per rukka Mark A but PW2 has not testified anything in the court. Further PW 2 testified that the seal was with the I.O. but I.O./HC Daya Nand has not been examined by the prosecution who can depose regarding as to what happened to the seal whether any seal handing over memo or seal returning memo was prepared or not.
12. Further PW 2 is the only recovery witness examined by the prosecution. The I.O. /HC Daya Nand has not been examined by the I.O. who has done all the investigation of the case. In view of this, the sole testimony of PW 2 is not sufficient to convict the accused.
13. During the investigation of the case neither public witnesses were joined nor seems to be any sincere efforts made in this regard, when it was possible to do so as PW 2 deposed during cross examination about presence of public persons at the spot 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'bl e Court held that : "
Where there were 20 shops nearby and the investigating 6 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.' '
14. The perusal of the seizure memo Ex PW 2/A shows that FIR number is mentioned therein. There is not a single word in the testimony of PW 2 as to when and at what stage FIR number was inserted in Ex PW 2/A. In these circumstances, either FIR was recorded posterior in time or that documents were prepared after the recording of FIR. In case Mohd Hasim Vs. State 1999 VI AD (Delhi) 569 (Hon'b le 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.
15. In these circumstances, the testimony of the prosecution witnesses do not inspire confidence.
16. Apart from this, the presence of PW 2 and H.C. Daya Nand at the spot is not proved. If they had departed from PS after constituting the raiding party the 7 entry to this effect must exist in the Roznamcha but that has not been proved, raising 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.
17. It is true evidence it to be weighted and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and th 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 proved all the links. Accused was acquitted.
18. 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 Bhagwan Dass is acquitted for the offence punishable U/S 61/1/14 Excise Act.
Announced in the Open Court
On 04.02.2010 (RAVINDER SINGH)
Metropolitan Magistrate:
New Delhi
8
FIR No. 112/95
PS Malviya Nagar
U/s 61/1/14 Excise Act
04.02.2010
Present: Ld. APP for the State.
Accused from J/C with counsel Sh. Lalit Kumar.
Final arguments heard.
Put up for orders at 3.30 PM.
(Ravinder Singh)
M.M./N.D./ 04.02.2010
Present: As before.
Vide my separate judgment dictated and announced in the open court accused Bhagwan Dass acquitted for the offence punishable U/s. 61/1/14 Excise Act.
Jail Superintendent is directed to release the accused, if not required in any other case.
(Ravinder Singh) MM//ND/ 04.02.2010