Delhi District Court
State vs . Jagdish on 19 December, 2012
IN THE COURT OF MS. NEHA: MM (SOUTHEAST),
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Jagdish
FIR No: 329/10
P. S. Amar Colony
Date of Institution of Case : 07.03.2011
Date on which case reserved : 11.12.2012
for Judgment
Date of Judgment : 19.12.2012
JUDGEMENT:
a) Date of offence : 02.07.2010 b) Offence complained of : 61/78/1/14 Excise Act c) Name of complainant : HC Ghan Shyam d) Name of accused, his : Jagdish parentage & residence S/o Sh.Seesh Pal, R/o Jhuggi No.S36/52, Gandhi Camp, Sriniwaspuri, New Delhi. e) Plea of accused : Not guilty g) Final order : Acquitted Present: Sh. Nischal Singh, Ld. APP for the State
Sh. S. K. Solanki, Ld Counsel for the accused FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 1 of 11 BRIEF FACTS AND REASONS FOR DECISION:
1. The case of the prosecution in brief is that on 02.07.2010 at about 7:30 p.m. at Service Road, Near Central Bank, Capt. Gaur Marg, New Delhi, within the jurisdiction of PS Amar Colony, accused was transporting 96 quarter bottles of illicit liquor containing in vehicle bearing No. DL3SBP1530 without any valid license from the concerned Authority and thereby committed an offence U/s 67/78/1/14 Excise Act. Accordingly FIR no. 329/10 under Section 61/78/1/14 Excise Act was registered at PS Amar Colony.
2. After the completion of the investigation, charge sheet for offence U/s 67/78/1/14 Excise Act was filed against the accused. Cognizance of the offence was taken. Copy of charge sheet was supplied to the accused. After hearing the parties, notice for the offence U/s 67/78/1/14 Excise Act was served to the accused which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
3. Prosecution in order to prove its case examined four prosecution witness. HC Jitender Singh was examined as PW1. He has stated that on 02.07.2010, he was posted at P.S. FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 2 of 11 Amar Colony and working there as duty officer from 0400 p.m. to 12.00 night and at about 925 p.m., one rukka was given to him by Ct. Preetam Singh sent by HC Ghan Shyam with his endorsement for registration of FIR. He further stated that he recorded the present FIR on the basis of rukka. The copy of FIR is Ex.PW1/A and his endorsement on rukka is Ex.PW1/B.
4. PW2 Ct. Ramjeewan deposed that on 05.08.2010, MHC(M) handed over to him two quarter bottles of illicit liquor sealed with the seal of 'GS' vide RC No. 112/21/10 for depositing it in the Excise Department, Vikas Bhawan, ITO. He further stated that he got deposited the same in the Excise Department, Vikas Bhawa, ITO and receipt of the same alongwith RC No. was handed over to MHC(M).
5. PW3 Ct. Pritam Singh has deposed that on 02.07.2010, he alongwith HC Ghanshyam were on patrolling duty in the area of PS. At about 7.00 PM, one secret informer met them and informed that one person would come in a scooter bearing No. DL 3SBP 1530 from the side of Captain Gaud Marg who was carrying illicit liquor. If raid is conducted he FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 3 of 11 can be apprehended. On this information IO prepared a raiding party and asked some public persons to join the investigation but none agreed and left the place without disclosing their names and addresses. Thereafter they reached at Captain Gaud Marg near Central Bank where they put barricade. They saw that accused was coming on said scooter from the side of Captain Gaud Marg and going towards Gandhi Camp. He was stopped and one plastic katta and a cartoon was recovered from the possession of said person. After checking, 48 quarter bottles of liquor were found in plastic katta and 48 quarter bottles were recovered in the cartoon. The bottles recovered from cartoon were having label of Frost Falcon Distillery Ltd, Sonepat, Haryana and bottles recovered from plastic katta were having label of country liquor for sale in Haryana only. Then IO took out one quarter bottle as sample from each brand. IO sealed the sample bottles with the seal of GS and the rest case property were seized in the same plastic katta and cartoon with the seal of GS. After use seal was handed over to PW3. IO seized the case property vide seizure memo Ex.
FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 4 of 11 PW3/A. IO filled the Form M29. IO prepared the rukka and handed over to PW3 for registration of FIR. IO prepared the site plan. IO also seized the scooter vide memo Ex.PW3/B. IO arrested the accused Jagdish vide memo Ex.PW3/C and conducted personal search vide memo Ex.PW3/D. Case property i.e quarter bottles are Ex.P1 to Ex.P94.
6. PW4 /IO HC Ghanshyam has deposed on the lines of PW3. PW4 has proved the rukka as Ex.PW4/A and site plan as Ex.PW4/B. He has also deposed that on 05.08.2010, he sent Ct. Ram Jeevan to Excise Lab, ITO, alongwith sample of this case to deposit the same. After obtaining result from Excise Lab, he prepared the challan.
7. Thereafter no other material witness was left to be examined and PE was closed vide order dated 0211.2012. In SA, the accused has denied all incriminating evidence. He claimed innocence submitting that he has been falsely implicated in this case. On option being given, the accused did not lead D.E.
8. I have heard final arguments and perused the record very FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 5 of 11 carefully.
9. It is submitted by Ld. APP for the State that all the witnesses have corroborated the testimony of each other and proved the story of the prosecution beyond reasonable doubt, therefore, accused is liable to be convicted. On the other hand it is submitted by Ld. Counsel for accused that in the present case no public persons was joined in the recovery/investigation, therefore it creates the shadow of the doubt upon the story of the prosecution.
10. I have perused the entire material on record and carefully considered the submissions of Ld. APP and Ld. Defence Counsel.
11. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :
12. "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 improbable or lacks credibility the benefit of doubt necessarily has to go to the FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 6 of 11 accused."
13.PW3 Ct. Pritam Singh has stated in his crossexamination that he reached the spot at about 7.00 PM. 45 public persons were requested to join the investigation but none agreed. No notice was served to them. PW4/IO has stated in his crossexamination, "I requested about 45 persons to join the proceedings after receiving the secret information but none agreed. I did not note down their names and addresses. I did not intimate the PS about the secret information".
14. In the instant matter, IO and other police official have submitted that IO had requested some passersby/residents to join the investigation. However, no notice was served to public persons who refused to join the investigation. It is note worthy that I.O. had not made any serious endeavour to join the passersby in the investigation of the case. Also as per rukka IO did not serve written notice to the passersby who refused to join the police proceedings. At least in the facts and circumstances of the present case, IO could have very well served the passersby with notice in writing FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 7 of 11 requiring them to join the police proceedings or to face action u/s 187 IPC in as much as in the present case there was no possibility of accused escaping his apprehension / arrest or crime going undetected in as much as by the said time, accused stood already apprehended by the police. Failure on the part of prosecution to make sincere efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws.
15.In a case law reported as Anoop Joshi V/s State, 1992 (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 FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 8 of 11 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''.
16. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: " 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 FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 9 of 11 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 he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure 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''.
17. IO has also stated that he handed over seal to Ct. Pritam Singh and took it back on the next day. Admittedly seal was not handed over to any independent public person and the seal remained in the possession of junior police official. No efforts were made to handover the seal to independent public persons after use and seals remained with the junior police FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 10 of 11 official only. Since the handing over of the seal to public witness has not been proved and hence it cannot be ruled out that police had the opportunity to tamper with the case property as the seals were in their possession. This also creates a doubt upon the prosecution story. Reference may be made to the judgment titled as "Prem Singh Vs. State"
reported as 1996 CRI. L. J/ 3604 in this respect.
18. In view of the above discussion, I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused and accused stands acquitted for the offence U/s 61/78 of Punjab Excise Act.
Pronounced in the open Court (Neha) today on 19th December, 2012 MM10 (South East) Saket, New Delhi FIR no. 329/10 State vs. Jagdish PS Amar Colony Page 11 of 11