Delhi District Court
State vs Kavita on 28 September, 2007
-Page numbers- FIR NO : 209/99
PS : Sultan Puri, Delhi
U/s 61 of Pb .Excise Act, 1914
IN THE COURT OF DR.SHAHABUDDIN METROPOLITAN
MAGISTRATE:COURT ROOM NO.105, ROHINI COURTS DELHI
State vs Kavita
FIR NO : 209/99
PS : Sultan Puri, Delhi
U/s 61 of Pb .Excise Act, 1914
JUDGMENT
A. SL. No. of the case : 45/2000
B. Date of Institution in : 21.01.2000
the court
C. Date of commission of : 06.03.1999
offence
D. Name of the : HC Sh. Jhabar Singh
complainant
E. Name of the accused , : Smt. Kavita W/o Sh.
her parentage and Ram Avtar R/o C-1/367,
residence Sultan Puri, Delhi
F. Offence complained of : U/s 61 of Punjab Ex. Act
or proved 1914
G. Plea of accused : Pleaded not guilty
H. Final Order : Acquitted
I. Date on which : 28.09.2007 (Forenoon)
judgment reserved
J. Date of such judgment : 28.09.2007 (Afternoon)
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-Page numbers- FIR NO : 209/99
PS : Sultan Puri, Delhi
U/s 61 of Pb .Excise Act, 1914
K) BRIEF REASONS FOR THE DECISION OF THE CASE
1. The main prosecution case against the accused is that on 06.03.99 at about 6.30 PM at C-1 Block, Near DDA Park, Sultanpuri, Delhi, within the jurisdiction of PS Sultanpuri Delhi, the accused was found in possession of 10 bottles of country made liquor of quantity of 750 ML per bottle in a plastic cane without having any license / permit and in contravention of a Delhi Administration Notification in this regard. Hence, a chargesheet was filed against the accused after completion of entire investigation for the offence U/s 61 of Punjab Excise Act, 1914 ( in short called as Punjab Ex. Act hereinafter ).
2. Accused appeared in the court and she was supplied the copies of documents relied upon in the chargesheet as per mandate of section 207 of The Code of Criminal Procedure, 1973 ( in short called as Cr.P.C hereinafter).
3. On 29.09.2000, a charge was framed against the accused for the offence U/s 61 of Punjab Ex.Act to which she did not plead guilty and claimed trial.
4. From the side of prosecution, PW1 HC Ombir , PW2 HC Contd....P/Next page
-Page numbers- FIR NO : 209/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 Chand Singh, PW3 HC Jhaber Singh and PW4 HC Krishan Pal were examined and then remaining prosecution evidence (in short P/E) was closed.
5. On 16.05.2007, statement of accused was recorded U/s 313 Cr.P.C. in which she denied the allegations against her as false and incorrect but she did not want to lead defence evidence.
6. Final arguments were heard today on 28.09.2007 from Ld. APP Shri K.D. Pachori for State and from the Ld. Defence Counsel Shri Deepak Ghai on behalf of accused.
7. The main submissions of Ld.APP for State were to the effect that on the basis of entire material on record, the case stands well proved against the accused for the offence U/s 61 of Punjab Excise Act beyond reasonable doubt and that she should be punished strictly as per law.
8. On the other hand, the main submissions of the ld. Defence counsel were that accused was falsely implicated in this case; that nothing was recovered from her possession; that she was called in the police station on a false pretext and Contd....P/Next page
-Page numbers- FIR NO : 209/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 later on she was booked in this matter for ulterior motives; that no independent and reliable person of the locality was joined by investigating officer (in short I/O) during investigation at the alleged place of recovery of illicit liquor form the possession of accused; that no such reliable witness was produced for evidence during trial of this case; that only police officials have deposed in this matter and the conviction can not be held merely on the basis of testimonies of police officials alone in such like cases; that even the chemical examination report of case property has not been proved on record; that there are several material contradictions even in the depositions of the PW's examined in this case; that IO of this case HC Joginder Singh has not been produced for his evidence during trial though he happens to be a very material witness in this matter and that it is a serious lapse on the part of prosecution. On the basis of these grounds mainly, acquittal of the accused was prayed for.
9. I perused the entire judicial file minutely in view of the above mentioned rival submissions.
10. Before proceeding further on the merits of this case, I refer Contd....P/Next page
-Page numbers- FIR NO : 209/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 to the relevant provisions of section 61 of Punjab Excise Act for which the charge was framed against the accused in this matter.
11. The relevant portion of section 61 of Punjab Excise Act is to the following effect:-
"61.(1) Penalty for unlawful import, export, transport, manufacture, possession, etc. -- Whoever, in contravention of any section of this Act or of any rule, notification issued or given there-under or order made, or of any license, permit or pass granted under this Act.--
a) Imports, exports, transports, manufactures, collects or possesses any (intoxicant); or
b) constructs or works any distillery or brewery; or
c) uses keeps or has in his possession any materials still, utensil, implement or apparatus whatsoever, for the purpose o manufacturing any (intoxicant) other than tari:
shall be punishable for every such offence with imprisonment for a term which may be extend to (three years) [ and with find upto two thousand rupees and if found in possession of a working still for the manufacture of any (intoxicant) shall be punishable with the minimum sentence of six months imprisonment and fine of two hundred rupees]."
12. Now turning to the evidence on record, PW1 HC Ombir Singh happens to be simply a formal witness as he was Contd....P/Next page
-Page numbers- FIR NO : 209/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 posted as MHC(M) at PS Sultanpuri Delhi on 06.03.99 and the case property pertaining to this matter was deposited in his custody and he made entries of the same in Malkhana Register No. 19 at Serial No. 4233 of which memo is Ex. PW1/A on record.
13. PW2 HC Chand Singh also appears to be a formal type of witness as he was duty officer on 06.03.99 at PS Sultanpuri Delhi and recorded FIR in this case of which copy is on record as Ex.PW2/A.
14. PW3 HC Jhabar Singh and PW4 HC Krishan Pal respectively, have deposed regarding various steps taken during investigation of this matter. However, they have both admitted in their depositions that some persons were available at the spot but they were not joined during investigation. In my considered opinion, non joining of independent and reliable persons of the locality / place of recovery in such like cases is fatal to the prosecution side.
15. In this regard, I further find support from an important judgment of Hon'ble Punjab and Haryana High Court given in a case, namely, "Darshan Singh V/s State of Contd....P/Next page
-Page numbers- FIR NO : 209/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 Haryana" reported as 1997 (3) Crimes, Page-392. In para-6 of this judgment, the Hon'ble Punjab and Haryana High Court held as under:-
"6.The recovery had been effected at the bus stand. Large number of persons pass-through that place. There are shops nearby. It is somewhat surprising that still the explanation is forthcoming that the witnesses from the public were not available. The only conclusion that can be drawn in such a situation is that no genuine attempt or even an attempt to join the public witnesses was made. When genuine attempt has not been made to join the public witnesses, one is constrained to observe that in the facts of the present case, it is difficult to believe the official witnesses."
16. There is also an important judgment of Hon'ble Supreme Court of India on this point given in a case namely "Pardeep Narayan, etc V/s State of Maharastra reported as 1995(2) CC Cases, Page-133 (Supreme Court). The Hon'ble Apex Court also emphasised the necessity of independent and reliable persons of the locality in this case. The ratio of Darshan Singh's case (Supra) and Pardeep Narayan's Case (Supra) is found fully applicable to the case under discussion.
Contd....P/Next page
-Page numbers- FIR NO : 209/99
PS : Sultan Puri, Delhi
U/s 61 of Pb .Excise Act, 1914
17. The other main contention of Ld. Defence counsel during the course of final arguments was that even the IO HC Joginder Singh has not come to depose in support of this case as a whole and more particularly in support of various memos prepared by him during investigation of this matter despite the fact that several opportunities were given for P/E to State from time to time since the framing of charge on 29.09.2000. I find force in this contention also of Ld. Defence counsel. I further find support on this point from an important judgment of Hon'ble Punjab & Haryana High Court given in a case namely, "Thana Ram V/s State of Haryana" 1996, Cr.L.J. Page 2020, (Punjab and Haryana High Court). In para 10 of this judgment the Hon'ble Punjab and Haryana High Court held as under:-
"10. Admittedly, the IO is a material witness as he investigates the case, maintains case diary, goes to place of occurrence, gets places of occurrence and body photographed, examines witnesses and thus collects the material for the prosecution. It is he who is to explain each and every action at every stage of investigation. In case of accident, non examination of the IO cannot be lightly brushed aside by saying that the IO could not have given any more information regarding the case."
18. In my considered opinion, the ratio of Thana Ram's case (Supra) is found fully applicable to all fours of this case.
Contd....P/Next page
-Page numbers- FIR NO : 209/99
PS : Sultan Puri, Delhi
U/s 61 of Pb .Excise Act, 1914
19. The other main contention of Ld. Defence counsel was that only police officials have deposed in this matter and that the conviction can not be held merely on the basis of testimonies of police officials alone in such like cases. I find force in this contention also of the Ld. Defence counsel. On this point, there is also an important judgment of Hon'ble Supreme Court of India given in a case reported as Sanspal Singh V/s State of Delhi, 1999 CrI. L.J. 19 (Supreme Court). In this judgment, the Hon'ble Apex Court held mainly to the effect that recovery of the arms was based on evidence o police officials alone and that no public witnesses were associated to witness the recovery even though such witnesses were available and hence the conviction on the basis of the testimonies of police officials alone was not found maintainable by the Hon'ble Apex Court in that case.
20. There is yet another important judgment of Hon'ble Delhi High Court on this point given in a case namely, Jagdish Rai V/s State, 1988 CrI. L.J., 785 (Delhi High Court). In this judgment, the Hon'ble Delhi High Court held mainly to the effect that prosecution story depended exclusively on the Contd....P/Next page
-Page numbers- FIR NO : 209/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 evidence of the police officials which was held to be unworthy of credit and hence conviction of the accused was set aside in that case on this ground.
21. There is further an important judgment of Hon'ble Delhi High Court on this point given in a case namely Pawan Kumar V/s Delhi Administration 1989 CrI, L.J. 127 (Delhi High Court) . The Hon'ble Delhi High Court held in this case mainly to the effect that the I/O concerned did not make earnest efforts to join independent witnesses and in those circumstances, the recovery of the knife from accused was considered doubtful in that case by the Hon'ble Delhi High Court and hence the accused was acquitted.
22. In my considered opinion, the ratio of the judgments given in Sanspal Singh's Case (Supra), jagdish Rai's Case (Supra) and Pawan kumar's case (Supra) applies equally to the case under discussion because the IO in the present case also did not make any sincere efforts to join any public witnesses during the course of investigation.
23. In view of the above mentioned discussion and on the basis of entire oral as well as documentary evidence on record, I Contd....P/Next page
-Page numbers- FIR NO : 209/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 am of the considered opinion that prosecution side has miserably failed to prove the essential ingredients of the charge u/s 61 of Punjab Excise Act beyond reasonable doubt against the accused. Hence, accused is entitled to be acquitted. Accordingly, accused Kavita w/o Shri Ram Avtar is hereby acquitted for the offence U/s 61 of Punjab Excise Act. Her bail bond are discharged and her surety also discharged. Case property be destroyed / disposed of as per rules after expiry of period of appeal / revision, as the case may be. File be consigned to record room as per rules. ANNOUNCED AND DICTATED IN THE OPEN COURT ON 28.09.2007 ( DR. SHAHABUDDIN ) METROPOLITAN MAGISTRATE ROHINI COURTS DELHI Contd....P/Next page