Delhi District Court
State vs . Chote Lal on 7 April, 2010
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State Vs. Chote Lal
IN THE COURT OF MS. KAVERI BAWEJA : CHIEF
METROPOLITAN MAGISTRATE : DELHI.
FIR NO.: 13/2003
P.S.: DBG Road
U/S.: 61/1/14 Punjab Excise
Act.
State Vs. Chote Lal
JUDGMENT
a. Sl. No. of the case : 161/2008
b. Name of the complainant: HC Hawa Singh
c. Date of commission of
offence : 15.01.2003
d. Name of the accused : Chote Lal
W/o Shri Sapra Singh
R/o C-81/48, Govt.
Qr. Dev Nagar, Delhi.
e. Offence complained of : U/s 61/1/14 P.E. Act
f. Plea of accused : Pleaded not guilty
g. Arguments heard on : April 07, 2010.
h. Final order : Acquitted.
I. Date of such order : April 07, 2010
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. In brief accused Chote Lal S/o Shri Sapra Singh is facing trial for the offence punishable under section 61/1/14 of Punjab Excise Act on the allegation that on 2 State Vs. Chote Lal 15.01.2003 at about 08:00 PM at Gol Chakkar, near Lal Park, DBG Road, Delhi, within the jurisdiction of P.S. DBG Road, he was found in possession of one plastic cane containing 12 bottles of illicit liquor without any permit or license and in contravention of notification issued under Excise Act.
2. After the completion of investigation charge sheet was filed. Copies were supplied to the accused. Charge under section 61/1/14 Punjab Excise Act was framed against the accused vide order dated 07.04.2005 to which she pleaded not guilty and claimed trial.
3. In order to prove its case prosecution has examined PW 1 Head Constable Sumdev. He was the duty officer who recorded the formal FIR of the case Ex. PW 1/A. PW 2 Const. Raj Kumar deposed that on 15.01.2003, he was on patrolling duty along with HC Hawa Singh. At about 08:00 PM, when they reached near Lal Park, they met one secret informer who informed HC Hawa Singh that one person will come from the side of New Rohtak Road and will go towards the Government quarters and is having illicit liquor of cane. On this information, HC Hawa Singh requested some passerby's to join the investigation but none agreed and left the place. A raiding party was formed. At 3 State Vs. Chote Lal about 08:15 PM, accused came carrying one white color cane in his right hand. At the instance of the secret informer, accused was stopped. The cane was checked and was found containing illicit liquor. The liquor was measured and same was found containing 12 bottles. Form M-29 was filled at the spot. One quarter bottle was separated as sample. The case property was seized by the IO. HC Hawa Singh prepared the pukka and handed over the same to PW 1 for getting the case registered. He went at the P.S and came back at the spot and handed over the copy of the FIR and original rukka to HC Jaswant who reached at the spot to whom further investigation of this case was marked. HC Jaswant reached at the spot and HC Hawa Singh handed over to him the accused, case property and other documents. The witness further identify the accused and the case property before the Court.
PW 3 HC Hawa Singh was the Ist IO of the case. He deposed that on 15.01.2003, he was on patrolling duty along with Const. Raj Kumar. At about 07:00 PM, when they reached near PWD Inquiry, Const. Sanjay met them and has also accompanied in the patrolling. They met one secret informer who informed that one person will come from the side of Sarai Rohilla and will go towards Jhuggi 4 State Vs. Chote Lal Dev Nagar. On this information, IO requested some passerby;s to join the investigation but none agreed and left the place. A raiding party was formed. At about 08:00 PM, one person was seen coming, who was having cane in his hand and the secret informer also indicated towards him. On suspicion he was stopped and his cane was checked and the same was found containing country made liquor. The liquor was measured with the help of one empty bottle and bucket which were brought by Const. Sanjay. One quarter bottle was taken as sample. Recovered liquor was sealed with the seal of AS and taken into possession vide Ex PW 3/A. Form M-29 was filled at the spot. A rukka has been prepared and the same was handed over to Const. Raj Kumar for getting the case registered. Further investigation was handed over to HC Jaswant Singh. IO handed over the accused, case property and other relevant documents to HC Jaswant Singh. The witness further identify the case property and accused before the Court.
PW 4 Const. Sanjay Kumar deposed that on 15.01.2003, he was on patrolling duty. At about 07:00 PM, when they reached near PWD inquiry, they met HC Hawa Singh and Const. Rajbir who were on patrolling duty. They met one secret informer who informed HC Hawa Singh that 5 State Vs. Chote Lal one person will come from the side of New Rohtak Road and will go towards the Government quarters and is having illicit liquor of cane. On this information, HC Hawa Singh requested some passerby;s to join the investigation but none agreed and left the place. A raiding party was formed. At about 08:00 PM, accused came carrying one white color cane in his right hand. At the instance of the secret informer, accused was stopped. The cane was checked and was found containing illicit liquor. The liquor was measured and same was found containing 12 bottles. Form M-29 was filled at the spot. One quarter bottle was separated as sample. The case property was seized by the IO vide Ex PW 3/A. HC Hawa Singh prepared the rukka and handed over the same to Const. Raj Kumar for getting the case registered. He went at the P.S and came back at the spot and handed over the copy of the FIR and original rukka to HC Jaswant who reached at the spot to whom further investigation of this case was marked. HC Jaswant reached at the spot and HC Hawa Singh handed over to him the accused, case property and other documents. HC Jaswant arrested the accused vide memo ex PW 4/A and 4/B. The witness further identify the accused and the case property before the Court.
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State Vs. Chote Lal PW 5 ASI Jaswant Singh was the IInd IO. He deposed that on 15.01.2003, the further investigation of the present case was handed over to him. He reached at the spot where HC Hawa Singh met him and produced along with the case property in sealed condition and documents. He prepared the site plan Ex PW 5/A at the instance of HC Hawa Singh. He further proved the personal search memo and arrest memo of the accused as Ex PW 4/A and 4/B. He collected the report of the Excise Laboratory vide ex PW 5/B and filed the challan before the Court. The witness further identified the accused and the case property before the Court.
4. In his statement, which was recorded in accordance with section 281 Cr.P.C, accused denied the incriminating evidence. He stated that he has been falsely implicated in this case.
5. No defence evidence was lead by the accused.
6. I have heard the learned APP for the state and accused and carefully perused the record. I have considered the respective submissions.
7. Despite the fact that accused was allegedly arrested from a public place at about 15.01.2003 at about 08:00 PM at Gol Chakkar, near Lal Park, DBG Road, Delhi, no public 7 State Vs. Chote Lal witness was joined. Constable Raj Kumar, IO HC Hawa Singh and Const. Sanjay Kumar that no public witness had joined. No action was taken against the public persons, who refused to join the proceedings. The testimony of official witnesses does not find any corroboration from any independent source. In my view, the non joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for non joining of public witnesses. The relevance of non joining of public witness has been discussed in Pawan Kumar Vs. The Delhi Administration, 1989 CRLJ 0127 DEL that ''Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the 8 State Vs. Chote Lal investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.''
8. In my view, the testimony of prosecution witnesses does not inspire any confidence particularly when their testimony has not been corroborated from any independent source. MHC(M) has not been examined and therefore, link evidence could not be proved. The case property i.e cane produce in the Court was not in sealed condition. Keeping in view the law laid down in the above cited case and in the facts and circumstances of the present case in my opinion, prosecution has failed to prove its case against the accused beyond reasonable doubts. Accused is accordingly acquitted. Case property be confiscated to the State and be destroyed after expiry of period of appeal. He is on bail. 9
State Vs. Chote Lal His bail bonds cancelled. Sureties discharged. Original documents of the surety, if any be returned after cancellation of endorsement, if any.
File be consigned to Record Room, after due compliance.
(Kaveri Baweja) Chief Metropolitan Magistrate Delhi Announced in the open court on April 07, 2010.