Delhi District Court
State vs . Sanjay on 11 January, 2013
IN THE COURT OF SH. SACHIN GUPTA
METROPOLITAN MAGISTRATE8(OUTER), ROHINI COURTS,DELHI
State Vs. Sanjay
FIR No. 68/04
PS. Bawana
U/s. 61/1/14 Punjab Excise Act
Case ID No. 02401R5428502004
JUDGMENT
1) SI No. of the case : 166/A/12
2) The date of commission : 18.02.04
of offence
3) The name of the complainant : Ct. Raj Kumar
4) The name & address of accused : Sanjay
S/o Sh. Roshan
R/o A5, Amar Jyoti Colony,
Shahbad Daulatpur, Delhi.
5) Offence complained of : U/s 61 of Punjab Excise Act,
1914
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
8) The date of such order : 11.01.2013
FIR No. 68/04 1/14
Date of Institution : 02.07.2004
Judgment reserved on : 11.01.2013
Judgment announced on : 11.01.2013
THE BRIEF REASONS FOR THE JUDGMENT:
1. Case of the prosecution in brief is that on 18.02.04 at about 8:45 pm at in front of Engineering College, Near Shahbad Daulatpur Village, Main Bawana Road, Delhi within the jurisdiction of PS. Bawana, accused Sanjay was found in possession of one plastic cane containing 9 bottles of 750 ml each of illicit liquor, without any permit or licence and thus, he thereby committed an offence punishable u/s. 61/1/14 Punjab Excise Act.
2. After completion of investigation, charge sheet against the accused for offence u/s. 61/1/14 of Punjab Excise Act was filed in the court and after complying with the provisions of Sec. 207 Cr. P.C., arguments on charge were heard. Vide order dated 04.02.2005, charge was framed u/s. 61/1/14 of Excise Act against the accused to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined four witnesses i.e., PW1 HC Champa Toppo, PW2 Ct. Raj Kumar, PW3 D.K. Punj and PW4 HC Surender Kumar.
4. Statement of accused recorded under section 281 Cr.P.C in which the stand of the accused is of general denial. Accused has stated that he is innocent and has been falsely implicated in this case by the police officials. However, the accused has chosen not to lead any DE.
FIR No. 68/04 2/14
5. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
6. In the present case, PW1 HC Champa Toppo stated that on 18.02.04, he was posted at PS. Bawana as HC and was working as Duty Officer from 4:00 pm to 12:00 midnight. He further stated that on that day at about 11:10 pm, he received a rukka through Ct. Raj Kumar which was sent by HC Surender and on the basis of the same, he registered the FIR. He further stated that after registration of the case, carbon copy of FIR and original rukka were handed over to Ct. Raj Kumar to hand over to HC Surender for further investigation. He further stated that carbon copy of FIR is Ex. PW1/A. He further stated that he also made endorsement on the rukka which is Ex. PW1/B.
7. PW2 HC Ct. Raj Kumar stated that on 18.02.04, he was posted at PP Shahbad Dairy, PS Bawana as constable. He further stated that on that day, he was on patrolling duty and while patrolling at about 8:45 pm, he reached on main Bawana Road near Engineering College, Shahbad Daulatpur Village where he noticed a young boy coming from the side of Shahbad Daulatpur village having a white plastic cane in his right hand who on seeing him in police uniform suddenly turned back and started walking hastily. He further stated that on suspicion, he apprehended him after chasing 3035 paces. He further stated that he checked the plastic cane and smell of liquor was coming from the plastic cane. He further stated that accused disclosed his name Sanjay. He further stated that he made a telephone call to police post from a nearby shop regarding the incident and after FIR No. 68/04 3/14 sometime, HC Surender Singh from PP Shahbad Dairy came to the spot. He further stated that thereafter, he handed over the accused with plastic cane filled with liquor to IO HC Surender Kumar. He further stated that IO recorded his statement. He further stated that IO brought an empty bucket and empty bottle from a nearby shop and poured the liquor contained in the plastic cane into empty bucket and measured it with the help of empty bottle and it came out to be 9 bottles. He further stated that IO filled one quarter bottle from the bucket for sample and remaining liquor was put back in the plastic cane and sample quarter bottle were sealed separately with the seal of SK. He further stated that form M29 was filled at the spot. He further stated that seal after use was handed over to him, case property was seized. He further stated that IO prepared the rukka and handed over to him. He further stated that he went to the police station and got the case registered and came back at the spot with copy of FIR and original rukka and handed over the same to IO. He further stated that IO prepared the site plan at his instance. He further stated that accused was arrested vide arrest memo Ex. PW2/C and his personal search was conducted vide personal search memo Ex. PW2/D. During cross examination, PW2 stated that lid of the cane can be removed without disturbing the seal. He further stated that the shop from where the telephone call was made to PS was at a distance of 5/10 steps. He further stated that the site plan was made by the IO. He further stated that he did not remember whether telephone shop was shown in the site plan. He further stated that all the writing work was done by the IO in his own handwriting. He denied to the FIR No. 68/04 4/14 suggestion that the handwriting on seizure memo and rukka are different. He further stated that he went to PS for registration of FIR on public bus and came back on a private vehicle and he could not tell whether it was tempo, two wheeler scooter etc. He further denied to the suggestion that he was not present on the spot or that nothing was recovered from the accused.
8. PW3 D.K. Punj stated that on 26.02.04, he was posted at Excise Control Laboratory, Excise Department, L Block, Vikas Bhawan, New Delhi as Deputy Chemical Examiner. He further stated that on that day, one sample bottle of 180 ml capacity duly sealed with the seal of SK under FIR No. 68/04 from PS. Bawana was received in the office along with Form M29. He further stated that the sample was analysed by Sh. Anil Kumar under his supervision. He further stated that he had submitted his report vide SZD No. 20457 on 19.03.04.
9. PW4 HC Surender Kumar stated that on 18.02.04, he was posted at PP Shahbad Dairy, PS. Bawana as HC and on that day, DD No. 36PP was handed over to him and thereafter, he reached at Shahbad Daulatpur, near Engineering College, Delhi where Ct. Raj Kumar met him and handed over the accused Sanjay with one plastic cane containing illicit liquor. He further stated that he recorded the statement of Ct. Raj Kumar. He further stated that he asked Ct. Raj Kumar to bring an empty bucket and an empty bottle of 750 ml capacity and he brought the same from a nearby shop. He further stated that he poured the liquor contained in the plastic cane into an empty bucket and measured it with the help of 750 ml bottle FIR No. 68/04 5/14 and it came out to be 9 bottles. He further stated that one quarter bottle of 180 ml was filled from the bucket and separated for sample and remaining liquor was put back in the same plastic cane. He further stated that sample quarter bottle and plastic cane were sealed with the seal of SK. He further stated that Form M29 was filled, case property was seized and seal after use was handed over to Ct. Raj Kumar. He further stated that he prepared a rukka Ex. PW4/B and handed over the same to Ct. Raj Kumar who went to the PS and got the case registered and came back to the spot with copy of FIR and original rukka and handed over the same to him. He further stated that he prepared the site plan at the instance of Ct. Raj Kumar. He further stated that accused was arrested and his personal search was conducted. He further stated that he recorded the statement of witnesses. He further stated that thereafter, they came back to the PS with accused and case property.
During cross examination, PW4 stated that seal after use was handed over to Ct. Raj Kumar and he returned the seal on next day. He further stated that the bucket and bottle was brought by Ct. Raj Kumar. He further stated that he could not tell who had brought the same. He further stated that shopkeeper from where the above articles were brought was not asked to become a witness in his presence. He further stated that the shopkeeper from where the Ct. Raj Kumar made a telephone call was also not asked to join the investigation. He further stated that 24 pubic persons were asked to join the investigation but none agreed. He further stated that the college gatekeeper was not asked to join the FIR No. 68/04 6/14 investigation. He further stated that he took only one quarter as sample. He denied to the suggestion that nothing was recovered from the possession of the accused. He further denied to the suggestion that case property has been planted upon the accused.
10. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
11. In the present case, from the testimonies of prosecution witnesses, it is crystal clear that there was complete lack of any genuine and sincere effort on part of police officials to join public witness to the proceedings despite the fact that admittedly place of alleged incident was a public place. PW2 constable Rajpal He further stated that IO brought an empty bucket and empty bottle from a nearby shop and poured the liquor contained in the plastic cane into empty bucket and measured it with the help of empty bottle and it came out to be 9 bottles. While contradicting the stand of PW2, PW4 IO/HC Surender Singh stated in his cross examination that the bucket and bottle was brought by Ct. Raj Kumar. PW4 further stated that shopkeeper from where the above articles were brought was not asked to become a witness in his presence. He further stated that the shopkeeper from where the Ct. Raj Kumar made a telephone call was also not asked to join the investigation. PW4 stated that 24 pubic persons were asked to join the FIR No. 68/04 7/14 investigation but none agreed. He further stated that the college gatekeeper was not asked to join the investigation. In the facts and circumstances of the present case, at least junk dealer from whom the empty bucket and bottle was allegedly arranged or shopkeeper of telephone booth, could have been made witness to the proceedings which was admittedly, not even done by the police officials for the reasons best known to them. It is well settled that the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype 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. At least in the facts and circumstances of the case, in my opinion, IO could very well have served the passersby with notice in writing to join the police proceedings. The above referred mechanical excuse given by the prosecution for not joining the public witnesses in the police proceedings/investigation creates a reasonable doubt in the prosecution version. It is pertinent to note that IO has not even made a note of the excuses given by the above said passersby for not joining the proceedings. Also there is no explanation from the side of IO as to why he did not record the excuses given by the passersby who were requested to join the police proceedings. At this juncture, it would be pertinent to refer to some case laws.
12. In a case law reported as "Anoop Joshi Vs. 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 FIR No. 68/04 8/14 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 he 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 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.
13. In a case law reported as "Roop Chand Vs. The State of Haryana", 1999(1) C.L.R 69, the Hon'ble 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 petitioner witnesses that some witnesses from 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.
FIR No. 68/04 9/14
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 name 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 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."
14. In case law reported as "Sadhu Singh Vs. State of Punjab", FIR No. 68/04 10/14 1997(3) Crimes 55 of the Hon'ble Punjab & Haryana High Court observed as under:
5.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 accused.
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. 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 stereotype statement of nonavailability 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.
FIR No. 68/04 11/14
15. In the facts and circumstances and settled preposition of law as discussed herein before, it is crystal clear that there was complete lack of any sincere and genuine efforts to join any public witnesses before starting initial investigation of the present case and it creates a very serious doubt over the prosecution version.
16. Moreover, as per the version of the prosecution, accused was in possession of liquor without any licence/permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where the case property was arranged by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same.
17. Not only this, the case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence tampering with the case property cannot be ruled out as the seal remained all along with the police officials. As per the case of the prosecution, the case property was sealed with the seal of SK. However neither any handing over memo nor returning memo of the seal was prepared by IO. During cross examination, PW2 stated that lid of the cane can be removed without disturbing the seal. Thus, tampering may not be ruled out as sealed case property and accused were with the police officials till the time case property was deposited in Malkhana. Hence, Prosecution has completely failed to prove that the case property remained intact and was not tampered 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. This FIR No. 68/04 12/14 again creates sufficient doubt over the prosecution story, benefit of which must go to the accused.
18. Further, it is an admitted fact that seizure memo was prepared before the registration of the FIR. But the perusal of seizure memo shows that FIR number is mentioned at the top of it. It is a surprising fact that how the FIR number finds the mention at the top of seizure memo when the FIR was not registered at that time even as per the version of prosecution itself. No explanation of any kind whatsoever has been given on this point. These facts casts a very serious doubt in the prosecution story and in such cases, benefit of doubt is to be given to the accused.
19. In a case titled "State of Himachal Pradesh v/s Dharam Dass", 1992(1) C.L.R, it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
20. In "Thakorbhi Viribhai Vasava & others V/s The State of Gujrat" Crime, Vol (1) 1987/37 Gujrat High Court (D.B), it has been ruled down that in criminal trials even a slightest doubt raised in favour of accused ordinarily entitle the accused to get acquittal.
21. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. In the facts FIR No. 68/04 13/14 and circumstances of the present case, it is clear that the chain of evidence against the accused is not complete.
22. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Sanjay for the offence u/s 61 of Punjab Excise Act. Case property be confiscated to the State. File be consigned to record room after due compliance.
Announced in open court (SACHIN GUPTA)
on 11th day of January, 2013 MM8(OUTER):ROHINI COURTS
DELHI, 11.01.2013
FIR No. 68/04 14/14