Delhi District Court
State vs . Sarphool on 29 March, 2012
IN THE COURT OF MS. MONA TARDI KERKETTA, METROPOLITAN
MAGISTRATE -08 (SOUTH EAST) SAKET COURTS NEW DELHI
State Versus. Sarphool
FIR No. : 319/05
P.S. : Lajpat Nagar
U/s. :.61/1/14 Punjab Excise Act
Date of institution of case : 01.07.2005
Date on which case reserved : 29.03.2012
for judgment
Date of judgment : 29.03.2012
JUDGEMENT U/S 350 Cr.PC.:
a) Date of offence : 12.04.2005
b) Offence complained of : U/s.61/1/14 Punjab Excise Act
c) Name of accused, his parentage : Sarphool
S/o Sh. Wakil Miyan
R/o Jhuggi, Cap. Gaur Marg
Garhi More, New Delhi.
d) Plea of accused : Pleaded Not guilty
e) Final order : Acquitted
Counsels for the Parties:
For the State : Ms. Nidhi Bala
For the accused : Ms. Hariom Bhaskar, LAC.
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1.In brief, the case of prosecution is that on 12.04.2005 at about 7.30 PM Near Kudedan Captain Gaur Marg, Lajpat Nagar, New Delhi within the jurisdiction of Police Station-Lajpat Nagar, accused was found in possession a plastic can containing 8 bottles of country made illicit liquor without any license or permit and thereby committed an offence punishable U/s. 61/1/14 Excise Act.
2. After completion of investigation charge sheet was filed against the accused in the court. Cognizance of the offence was taken and accused FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 1/11 was summoned to face the trial for the offence allegedly committed by him. Charge U/s 61 Punjab Excise Act was framed against the accused on 12.12.2011, to which he pleaded not guilty & claimed trial.
3. In order to substantiate its version, prosecution filed list of Seven witnesses and examined only three witnesses.
4. PW1 HC Joginder Singh deposed that on 12.04.05, he was on patrolling duty, when he reached at Garhi More, a secret informer informed that one person wearing woolen shawl on his waist would come from Ring Road side who was having a plastic can containing illicit liquor. He shared this information to 3-4 public persons, but no one agreed to join the investigation and left the spot without disclosing their name and address citing their personal reasons for not joining the investigation. He further deposed that without wasting any further time he along with secret informer went to search that person. When they reached near the dustbin situated at Ring road, there he saw the accused carrying a blue colour plastic can. He stopped the accused and interrogated him. On finding him suspicious, he checked the plastic can from which smell of alcohol was coming out. He informed at police station then HC Durgesh, IO reached at the spot. IO sent him to PS for getting a bucket and bottle for measuring the liquor. He got the same and handed over the IO. IO measured the illicit liquor and found the same as eight bottles of 750 ml in number. One bottle was taken as sample and rest of the illicit liquor was poured in the can. The mouth of the can was tied with the white cloth and was sealed with the seal of DKT. The seal was handed over to him after its use. IO also filled the form No. M-29. The illicit liquor was seized vide memo Ex. PW1/A, bearing his signatures at point A. IO recorded his statement Ex. PW1/B and endorsed the rukka vide Ex. PW1/C and handed over the same to him for getting registration of the case. He got the FIR registered and returned to the spot along with copy of FIR and original rukka and handed over the same to IO. IO prepared the site plan at his instance vide Ex. PW1/D, bearing his signatures at point A. IO also FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 2/11 arrested the accused and conducted his personal search vide memos Ex. PW1/E and F, bearing his signatures at points A. He also identified the accused and case property Ex. P-1.
5. During his cross examination he deposed that IO reached the spot after 10 minutes after he called at P.S. He admitted that many people were coming and going from that place, but IO did not try to join them in the investigation, he again stated that IO tried to contact many persons, but they refused. He admitted that IO did not record their statement. He further deposed that after 10 minutes, he went to the police post and brought one bucket and one bottle and came back after 10 minutes. First, the liquor was poured into the bucket and after dipping the bottle in the bucket, the same was transferred into the can. He admitted that Seal was given to him and he returned the same to the IO after two days. He admitted that no particulars of this case were mentioned on the case property and also on the cloth and even mad number was not mentioned on the can. He denied the suggest that nothing was recovered from the possession of accused and he was deposing falsely.
6. PW2 SI Bandhna Oraon deposed that on 06.05.05, he sent the sample vide seal of DKT to the Excise Laboratory vide RC No. 22-21-05. It was sent through HC, Durvesh Kumar. He deposed that he did not make any alteration in the sample until it was in his possession. He also deposed that IO recorded his statement.
7. PW3 HC Durvesh Kumar deposed that on 12.04.2005, after receiving DD No. 23, he went to the spot i.e. Captain Gaur Marg near Khatta (dustbin), DTC Bus Stop, Garhi where he met with Ct. Jitender, who handed over the accused, and the recovered plastic can containing illicit liquor to him. He sent Ct. Jitender to PS to get the bucket and bottle for measuring the illicit liquor. Ct. Jitender brought the bucket and a bottle of 750 Ml, with the help of which the illicit liquor was measured and it was found 8bottles of 750 FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 3/11 ml in number. Thereafter, he took out one bottle for the purpose of sample and put the remaining illicit liquor in the can. He put the sample bottle in a white cloth pulanda and sealed it with the seal of DKT. He also sealed the said can by tying the mouth of it with a white cloth and sealed it with the seal of DKT. Seal after use was handed over to Ct. Jitender. He seized the case property vide seizure memo Ex.PW1/A, bearing his signatures at point D. Thereafter, He prepared the site plan at the instance of Ct. Jitender vide Ex. PW1/D, bearing his signatures at point A. He also filled the Form M-29. He recorded the statement of Ct. Jitender vide Ex. PW1/B and endorsed rukka Ex. PW1/C, bearing his signatures at point A and handed over the same to Ct. Jitender for registration of case. Ct. Jitender got the FIR registered and came back at the spot and handed over the original rukka and copy of FIR to him. He arrested the accused and conducted his personal search vide memos Ex.PW1/E and F, bearing his signatures at points B. He also recorded the statement concerned witnesses U/s. 161 CrPC. Case property was deposited in Malkhana. He sent the sample bottle to excise laboratory and obtained the report from excise laboratory. After the completion of investigation, he prepared the charge sheet and filed the same before the Court. He also identified the accused and case property Ex.P1.
8. During cross examination he admitted that no particulars of this case are mentioned on the case property and also on the cloth. He admitted that even mud number was not mentioned on the can. He deposed that he started from the PS at 7.35 PM and reached at the spot at about 7.40 pm. He admitted that except Ct. and accused no other person was present near the spot. He also admitted that public persons were coming and going in their cars but he did not try to stop any vehicle to join the proceedings. He deposed that they remained at the spot for about 3 hours and he sent the rukka for registration of the case after one hour of apprehending of the accused. He admitted that he prepared the seizure memo and filled the Form-29 and except this he did not conduct any proceeding. He admitted that he prepared the site plan and arrest memo when the Ct. came back from FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 4/11 the PS and recorded the statement of constable. He deposed that first the liquor was poured into the bottle and transfered it into the can. He admitted that he measured the case property. He also admitted that he reached at the PS at about 11-11.15 PM and recorded his return in the PS, but he did not annex the same with the judicial file. He denied the suggestion that nothing was recovered from the possession of accused and he was falsely implicated in the present case.
9. During the trial accused did not dispute the genuineness of FIR, Entires of Register No. 19, Chemical examination report and D.D. No.23, dated 12.04.2005. Hence,examination of Duty Officer, MH(C)M, P.S. Lajpat Nagar, Chemical Examiner and D.D. Writer was dispensed with. No other witness was left to be examined. Hence PE was closed. Thereafter statement of accused U/s 313 Cr.P.C. was recorded wherein entire incriminating circumstances appearing on record were put, to which he denied as false & incorrect. Accused stated that he was falsely implicated in this case however he did not lead evidence in his defence.
10. The main arguments of Defence are:-
(1) Non-joinder of public witnesses despite availability casts a serious doubt over the truthfulness of prosecution story. Witnesses have admitted that no legal notice was served upon public persons who refused to join the investigation.
(2) Major contradictions can be seen in the testimonies of prosecution witnesses regarding the manner of measurement of recovered illicit liquor, timings of proceedings and hence their testimonies can not be relied upon.
(3) Seal after use remained with the police officials. (4) Admittedly, all the documents were prepared before sending the rukka (5) Identity of case property has remained doubtful.
11. The main arguments of Prosecution are :-
FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 5/11 (1) Public persons do not want to get themselves entangled in police cases.
(2) There are sufficient materials available on record to prove the guilt of accused.
(3) Contradictions appearing in the testimonies of witnesses are minor in nature and do not go to the root of prosecution case.
12. The court has heard the submissions of both sides and has also gone through the entire record including the testimonies of witnesses. It is the cardinal principle of criminal jurisprudence that an accused is presumed to be innocent until he is proved guilty and, therefore, the burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond reasonable doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
13. After going through the entire record, the court has no hesitation in holding that the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused on account of the following grounds:-
14. No independent/public witness joined the investigation to witness the recovery, search or other proceedings despite their availability. Admittedly no written notice was served upon persons who refused to join the investigation. The failure on the part of the prosecution to join public witnesses especially when they are available also casts a doubt on the prosecution story. It is true that the testimonies of police witnesses can not be discarded completely however, no plausible explanation has come either on behalf of the prosecution for non joining of independent witnesses. Reference may be made to the judgment titled as PREM SINGH VS. STATE, 1996 Crl. L.J. 3604, PAWAN KUMAR VS. DELHI ADMN 1989 Crl. L.J. 127 FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 6/11 (Delhi HC), NANAK CHAND VS. STATE OF DELHI, 1992 Crl. LJ 55 (Delhi HC).
15. The next defence is that the public witness are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. Not even a single public witness has been examined by the prosecution not joined in the investigation and no reason has been put forward by the prosecution witnesses that for what reason they are unable to gather support from public or independent witnesses to establish the guilt of the accused. Although, it can be said that it was a chance recovery but the incident had occurred from in a busy locality and therefore, it cannot be said that no public person would have been available at the spot and even if the prosecution has not the public witnesses. It was incumbent upon the prosecution to at least put forward the reasons for not doing so. The failure on the pat of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" 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 shop keepers 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 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 FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 7/11 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 Vs. The State of Haryana 1999 (1) C.L.R, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. 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 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 the witnesses from the public had refused 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 FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 8/11 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. In "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court observed that "all the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
18. Since all the witnesses are police personnels and the necessary safeguards in the investigation has not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police.
19. No efforts were made to handover the seal to independent public persons after its use. The seal remained with the police officials only. The handing over of the seal to public witness has not been proved hence it cannot be ruled out that the opportunity to tamper with the case property was very much there as the seal remained within the possession of police officials. 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.
20. Further, as per the case of the prosecution it is not clear that to whom the seal after the use was handed over and when the seal was returned to the IO. No memo has been prepared and proved on the record. The prosecution was bound to prove on the record as to when the seal was returned to the IO to remove the element of the tempering with the case FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 9/11 property. Not only this there is an unexplained delay in sending the sample to the excise laboratory. The incident is of 12.04.2005 and the sample was sent to the Excise Laboratory on 06.05.2005. There is no evidence that the sample remained intact till deliver to the office of chemical examiner. Till that time the sample remained in police possession. It was the duty of the police to send the samples to the laboratory without any unexplained delay which could rule out any tempering with the case property which was not done in the present case and the case property remained in the police station for a period of around two months at the disposal of the police. Considering the empty can the amount of recovery is also doubtful.
21. There is nothing on record to show at what time the police personnel proceeded for patrolling duty. Strangely none of the witness could tell as to what time they proceeded for such patrolling. No DD entries have been placed on record to establish the departure and arrival of the said police officials on patrolling. Reference may be made to the judgment titled as Pappu alias Irfan Vs State of UP,2005[1] JCC [Narcotics]31). As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal."
Note:-The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
22. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no. II, they were patrolling in the particular area. In the present case also this provision has FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 10/11 not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi Hgih Court held that;
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
23. Major contradictions can be seen in the testimonies of prosecution witnesses as shown by the Legal Aid Counsel and the same in the opinion of court are making the entire case of prosecution doubtful. It is also seen the identity of case property has not been established by the prosecution. Witnesses have admitted that no particulars of the present case are mentioned on the container and cloth of case property and even mud number is not mentioned on the cane.
24. In view of foregoing discussions, the court is of the view that the prosecution has failed to prove its case against accused beyond reasonable doubt, hence,accused is acquitted from the charge framed U/s. 61 of Punjab Excise Act.
Announced in the open court (MONA TARDI KERKETTA)
on 29.03.2012 Metropolitan Magistrate-08 (SE)
Saket Courts, New Delhi
FIR No. 319/05 PS Lajpat Nagar State Vs. Sarphool 11/11