Delhi District Court
State vs . Seema @ Anita on 30 July, 2011
IN THE COURT OF SH. SAURABH PRATAP SINGH LALER
METROPOLITAN MAGISTRATE-06 (EAST), KARKARDOOMA
COURTS, DELHI.
FIR NO. 316/04
PS: Vivek Vihar
Offence complaint of : 61 Punjab Excise Act.
Date of commission of offence : 7.8.04
Unique Case ID No. : 02402R0523482004
STATE Vs. Seema @ Anita
W/o Late Sh. Vinod Kumar
R/o H.No. 201, Gali No. 4,
Jwala Nagar, Delhi ............. Accused
Narender Kumar No. 977/E ............. Complainant
Date of Institution : 23.12.04
Plea of accused : Pleaded not guilty
Date of reserving judgment/order : 30.7.2011
Date of pronouncement : 30.7.2011
Final Order : Acquitted
BRIFE STATEMENT FOR THE REASONS FOR DECISION:
1.The case of the prosecution is that on 7.8.04 at about 5.25 PM at DDA Flats, Jhimil Chowk, Kasturba Nagar, Vivek Vihar, Delhi the accused Seema was found in possession of one plastic can of 10 litres containing country made liquor without having any permit or license and thereby accused committed an offence punishable under Section 61 Excise FIR No. 316/04 State Vs Seema 1 of 9 Act.
On the basis of above facts an FIR No. 316/04 was registered in the PS Vivek Vihar against the accused U/s 61 of Punjab Excise Act.
Statements of witnesses were recorded, site plan was prepared, the accused was arrested and after completion of all necessary investigation charge sheet U/s 173 Cr. P.C was presented in the court for trial on 23.12.04.
2. The accused was summoned by the Court to face the trial so copy of challan as required under section 207 Cr. PC was supplied to her. Thereafter case was fixed for consideration of charge.
3. On hearing arguments and on perusal of record, prima facie charge for the offence under Section 61 of Punjab Excise Act was made out against the accused. Accordingly charge was framed against the accused on 7.9.06. Thereafter case was fixed for prosecution evidence.
4. In order to prove its case the prosecution examined five witnesses namely Ct. Narender Singh as PW1, Ct. Ajay as PW2, HC Jag Pal Singh as PW3, HC Amrish as PW4 and Retd. SI Inder Pal as PW5
5. PW1 Ct. Narender Singh is the star witness as he is the witness of recovery who deposed that on 7.8.04 he was on patrolling duty and during patrolling at about 5.25 PM he reached Jhilmil Chowk, DDA Flats FIR No. 316/04 State Vs Seema 2 of 9 where he saw one lady was going from the side of Jhilmil Chowk to Kasturba Nagar side with a plastic can 10 litres containing liquor. He further deposed that that lady was stopped and the can was checked. There was smell of liquor. PW1 proved complaint as Ex.PW1/A, Seizure memo as Ex.PW1/B, site plan as Ex.PW1/C, arrest memo as Ex.PW1/D and personal search memo as Ex.PW1/E.
6. PW2 Ct. Ajay deposed that on the directions of the IO, on 31.8.04 he took sample pullanda sealed with the seal of AKP from MHC(M) and deposited the same at Excise Laboratory vide R/C No. 188/21.
7. PW3 HC Jag Pal Singh is the MHC(M) who deposed that on 7.8.04 IO/HC Amrish Kumar deposited one plastic can of white colour of 10 litres filled up with liquor and one sample quarter bottle along with excise form sealed with the seal of AKP and he entered the same in register No. 19 at sl. No. 2706. He further deposed on 31.8.04 he sent the sample quarter bottle along with excise form through Ct. Ajay to Excise Laboratory vide R/C No. 188/21 and got the receipt. He also proved relevant copy of register No. 19 as Ex.PW3/A.
8. PW4 HC Amrish is the IO in the present case and deposed on the aspects of the investigation that on 7.8.04 on receipt of DD No. 25 A he along with L/HC Novardani reached Jhilmil DDA Flats where Ct. Narender Kumar met and produced accused along with one plastic can containing FIR No. 316/04 State Vs Seema 3 of 9 liquor. PW4 further deposed that he took one quarter bottle as sample and after preparing rukka he got the FIR registered through Ct. Narender. PW4 also proved complaint as Ex.PW1/A, seizure memo as Ex.PW1/B, site plan as Ex.PW1/C, arrest memo as Ex.PW1/D and personal search memo as Ex.PW1/E.
9. PW5 Retd. SI Inder Pal is the Duty Officer who deposed that on 7.8.04 on receipt of rukka from Ct. Narender sent by HC Amrish he registered FIR of the present case. PW5 also proved copy of FIR as Ex.PW5/A and his endorsement on rukka as Ex.PW5/B.
10. On 19.7.2011 statement of the accused was recorded wherein she denied the allegations of prosecution and claimed innocence. Accused did not desire to lead evidence in her defence.
11. I have heard the Ld.APP for the state and Ld. Defence counsel and have also carefully perused the entire record and the relevant provisions of the law.
12. It is settled proposition of criminal law that prosecution is supposed prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the FIR No. 316/04 State Vs Seema 4 of 9 accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
13. From careful perusal of testimonies of this witnesses, it reveals that the witnesses admitted in examination in chief that several public persons were available at the spot but they were not made witness in the present case and it is a serious lapse on the part of IO/prosecution and there are also several material contradictions in the testimony of the PWs.
14. In the present case, the Investigating Officers have not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused person (as PW1 the recovery witnesses and PW4 the IO) and while completing the formalities. Further, as per site plan several residential houses were located near the place of alleged recovery but none of the occupants from any of the said houses were even requested to become witness.
15. Investigating Agency had sufficient opportunity to join a public witness. Merely stating that they tried to join public witness, but public persons refused to join, is insufficient as they have not obtained even the names of such public persons and have also failed to explain as to why the provisions of section 174 IPC r/w Section 42 of the Cr. P.C. was not brought into action against such public persons.
FIR No. 316/04 State Vs Seema 5 of 9 In the state of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held:
"The failure of the prosecution to examined independent witnesses though available is fatal for their case."
In the case titled State of Punjab Vs. Gurdyal Singh 1992(1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that :-
"Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful."
The Court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 the division bench of Honorable Justices Sh. S. B. Sinha and Sh. Dalveer Bhandari Observed:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure memo who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a FIR No. 316/04 State Vs Seema 6 of 9 witnesses. Even their names and addresses had not been taken.
Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus :
" The Court may presume -
(a) ***
(b) *** (c ) ***
(d) ***
(e) ***
(f) ***
(g) that evidence which could be and is not produced would, if produced be, unfavourable to the person who holds its." An adverse inference, therefore, could be drawn for non-examination of material witnesses." (emphasis supplied) In absence of a public witness to the recovery and also in absence of an explanation as to why a public reason was not joined in the investigation, the prosecution has failed to prove the recovery of the liquor from the accused beyond reasonable doubt.
16. Also in this case no efforts were made to hand over the seal after use to any independent public person and in such cases, in view of Saifulla Vs. State 1998(1) CCC 497 (DELHI) & Abdul Gaffar Vs. State 1996 JCC 497 (DELHI), benefit of doubt must be given to the accused persons.
FIR No. 316/04 State Vs Seema 7 of 9
17. Further it is found that seizure memo of the liquor Ex.PW1/B bears the number of FIR, though, as per rukka the said document was prepared before registration of FIR. Thus, the fact that said seizure memo Ex.PW1/A bears FIR number gives rise to two inferences that either FIR was registered after the alleged recovery of the liquor or the number of the FIR was inserted in the seizure memo after its registration. In both the situations it seriously reflects on the veracity of the prosecution case and robs the efficacy of the evidence of the aforesaid police official regarding the alleged recovery of the liquor from the possession of the accused. Reliance is placed upon judgment titled "Prithvi Pal Singh @ Munna Vs. State 2000 II AD (Cr.) DHC 61".
18. Further, neither the recovery witness Ct. Narender (PW1) nor IO/SI HC Amrish (PW4) testified that the liquor was measured. As the liquor was not measured, thus it cannot be said that the recovery was of 10 litres of liquor. The can when produced for first time for testimony of PW1 was found to be having a cap which could be easily opened without breaking the seal.
19. In view of my above discussion, I am of the considered opinion that prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. Therefore, in the absence of any cogent evidence against the accused, accused deserves to be acquitted. So, benefit of doubt is given to the accused.
Accordingly, accused Seema is acquitted of the offence
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punishable u/s 61 of Excise Act for which he stands charged in the present case.
Bail bond and surety bond each shall remain intact u/s 437A Cr.PC. till six months with further directions to appear before appellate Court as and when receives notice in this behalf.
File be consigned to Record Room.
Announced in the open Court on 30.07.2011 ( S.P.S. Laler) Metropolitan Magistrate KKD, Delhi Certified that this judgment contains 9 pages and each page bears my signature.
( S.P.S. Laler)
Metropolitan Magistrate
KKD, Delhi
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