Delhi District Court
State vs . Krishan And Others on 12 March, 2012
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE,
OUTER 05, ROHINI COURTS, DELHI
State Vs. Krishan and others
FIR No. : 209/2005
P.S. : Kanjhawala
U/s.: 78/61114 Punjab Excise Act
Unique ID no. 02404R0354562010
Date of institution of the case : 25.01.2006
Date of reserving judgment: 29.02.2012
Date of Judgment: 12.03.2012
JUDGMENT
1. S. No. of the Case : 92/3/06
2. Date of Commission of Offence : 19.08.2005
3. Date of institution of the case : 25.01.2006
4. Name of the complainant : Ct Devender
5. Name of the accused, parentage & address : 1. Krishan S/o Sh. Sube Singh
R/o Village Gandhra, PS & Tehsil Sapla,
District Rohtak, Haryana
2. Vinod @ Kala S/o Godhu Ram
R/o Village, PS & PO Kalanaur, District
Rohtak, Haryana.
6. Offence complained or proved : U/s 78/61114 Punjab Excise Act
7. Plea of Accused : "Not Guilty"
8. Final Order : Acquitted
9. Date of Final Order : 12.03.2012
FIR No. 209/2005 PS Kanjhawala
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BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Succinctly, the facts of the present case are that both the accused Krishan and Vinod have been sent up to face trial for the offence U/s 78/61114 Punjab Excise Act with the allegations that the accused persons on 19.08.2005 at about 10.30 pm at main Rani Khera road, near Meer Vihar, Mubarakpur More, Delhi, was found in possession of twenty nine cartons each containing 48 quarter bottles of illicit liquor which they were carrying in Santro car no. DL2C AD 1703 without any permit or licence.
2. The investigation was completed and the charge sheet was filed in context of the present FIR against the accused u/s 78/61114 Punjab Excise Act.
3. The cognizance was taken and provisions of Sec. 207 Cr. P.C. were complied with.
4. After hearing arguments, the accused persons were charged U/s 78/61114 Punjab Excise Act on 17.09.2007 to which the said accused pleaded "Not Guilty" and instead claimed trial.
5 To substantiate the prosecution case, 6 witnesses were examined by the prosecution.
PW 1 HC Kamlesh Narain deposed that he was posted at PS Kanjhawala as duty officer and registered the FIR Ex. PW 1/A. PW 2 HC Devinder Kumar deposed that on 19.8.05, he as on vehicle checking duty alongwith Ct. Satender and they apprehended the accused persons alongwith the liquor in car No. DL 2CAD 1703 and upon information given by them, IO reached the spot and they handed over the accused persons alongwith the car and the liquor to IO. He proved his statement as Ex PW 1/A, the seizure memo of liquor and the car as Ex. PW 2/B and 2/C respectively, arrest memos as Ex. PW 2/C and PW 2/D, personal search memos as Ex. PW 2/E and 2/F, the case property as Ex. P1 to P13 and proved the car as Ex. P 14.
PW 3 Ct. Satender Kumar deposed on the same lines as PW2 but the cross examination FIR No. 209/2005 PS Kanjhawala 2 was deferred and as such his testimony is not complete and cannot be read in evidence.
PW 4 SI Puran Pant is the IO in the present case, who deposed that on the day of recovery, he on receipt of DD No. 14A, Ex. PW 4/A reached the spot where Ct. Devinder and Ct. Satinder handed over both of accused persons alongwith the case property and the car to him. He recorded the statement of Ct. Devender Kumar. He sealed the plastic kattas with the seal of PP, filled form M 29, Ex. PW 4/B, prepared rukka Ex. PW 4/C and got the FIR registered through Ct. Devender, prepared site plan Ex. PW 4/D, arrested and conducted personal search of accused persons vide memos Ex. PW 2/C to Ex. PW 2/F respectively. He further deposed that on 18.10.2005 he deposited the samples at excise office through Ct. Dinesh and proved the excise result as Ex. PW 4/E. He proved the case property Ex. P1 to P13 and proved the car Ex. P14.
PW 5 SI Dilbagh Singh deposed that on 19.8.05 he was posted as MHC(M) at PS Kanjhawala and on that day IO SI Puran Pant deposited the case property and the car in question in the malkhana.
PW 6 HC Dinesh Kumar deposed that on 16.10.05 he deposited the samples in the excise office, ITO for chemical examination.
6. Prosecution evidence was closed vide order dated 10.12.2010 and the examination of accused u/s 313 Cr.PC was conducted on 06.12.2012 where the accused pleaded false implication. He chose not to lead defence evidence. At that stage an application was moved by Ld APP seeking recall of PW 3 for his cross examination but was turned down.
7. This court has heard the rival final arguments from both sides and has perused the judicial record.
8. In the present case, it is the case of the prosecution that the accused was found in possession of country made liquor without any licence or permission on the fateful day. To FIR No. 209/2005 PS Kanjhawala 3 substantiate the case, the prosecution was required to prove beyond reasonable doubts that the accused was found in possession of illicit liquor and that too without any permit or licence on the fateful day by leading cogent and reliable evidence.
9. Evidently, no public witness to the recovery of the liquor has been cited in the list of witnesses. The place of recovery was at Main Rani Khera Road, near Meer Vihar, Mubarakpur more, Delhi which is a public area and not a deserted area and the time of arrest was around 10.30 pm. It is not the case of the prosecution that no public was present at or near the spot of recovery and arrest. No names of the public witness who were requested to join the proceedings are available on record. No public witness were given notice to join the proceedings. The police officer is entrusted with ample power under the provisions of Cr.PC to initiate proceedings u/s 187 IPC if any person does not cooperate with him despite giving notice. No efforts by the IO are seen on the file for joining the public witnesses. It is well settled proposition that non joining of public witness shrouds doubt over the fairness of the investigation by police. Even Section 100 (4) casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under :
"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 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 FIR No. 209/2005 PS Kanjhawala 4 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."
The Ld APP for state has argued that mere non joining of public witnesses is not fatal for the prosecution case and has relied upon the judgment of Appabhai and another v State of Gujrat, AIR 1988 SC 696, wherein it was held that the prosecution case cannot be thrown out or doubted on the sole ground of non production of public witnesses, as the public witnesses keep themselves away from the court unless it is inevitable. The contention of ld APP is acceptable to that extent the mere non joining of public witness is not sufficient for acquitting the accused. However, every case has to be dealt with in accordance with the material available on record. In the present case, it is not only the absence of public witnesses which only raises doubt on the prosecution but there are other circumstances also which are discussed in the later part of the dicta, which raises suspicion over the prosecution version and it is well settled dogma that every accused is presumed to be innocent and is entitled to benefit of any doubt in prosecution story. Ld APP has also argued that no notice can be given by the police officials to the public witnesses u/s 187 IPC as it only relates to Section 37 Cr.P.C, where only the persons specified are bound to assist the police. This court does not agree with the said contention of Ld APP, the police official can ask any public person to assist him and can give notice to him and on unreasonable omission, the person can be prosecuted. There is no bar that such notice cannot be given by police officials to the public persons. S. 187 IPC provides for punishment of persons who are bound by law to assist public servant, intentionally omits to do so. The contention of Ld APP is that only persons u/s 37 Cr.P.C are bound by law to assist police FIR No. 209/2005 PS Kanjhawala 5 officials and no other. This contention is in my view totally meritless. All public persons are bound to assist police officials in discharge of their duties. S. 65 of Delhi Police Act, 1978 reads as follows:
"65.Persons bound to comply with the reasonable directions of police officer. (1) All persons shall be bound to comply with the reasonable directions given by a police officer in the discharge of his duties under this Act.
(2) Where any person resists, refuses or fails to comply with any direction referred to in sub section (1), a police officer may, without prejudice to any other action that he may take under any other provision of this Act or any other law for the time being in force remove such person and either produce him before a Metropolitan Magistrate or, in trivial cases, release him when the occasion which necessitated the removal has ceased to exist: Provided that the person so removed shall in all cases be produced before the Metropolitan Magistrate or released, as the case may be, within a period of twentyfour hours of such removal."
The contravention of Section 65 also entails a punishment as prescribed for in S. 119 of Delhi Police Act, 1978. Thus, this court is unable to accept that the ambit of S.187 is limited to S.37 Cr.P.C and no more.
10. The present case totally rests upon the alleged recovery of the case property from the possession of the accused at the relevant time. The arrival and departure entries of the police officials who apprehended the accused with case property is a vital piece of evidence. Conspicuously, no departure or arrival entries in the daily diary register, of PW 2 Ct Devinder and PW 3 Ct Satinder Kumar who allegedly apprehended the accused in possession of illicit liquor is not furnished and proved on record. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per the PPR rules. It FIR No. 209/2005 PS Kanjhawala 6 is apposite at this juncture to reproduce Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:
"22.49 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 personality by signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
Ld. APP has asserted that the ld. counsel of the accused has not asked any questions relating to the non production of arrival and departure entries and as such the prosecution is not obliged to prove the said entries. In the present case, admittedly, no public witness has joined the investigation and thus it becomes more important and incumbent in the present case that the arrival and departure entries be proved to corroborate the fact of presence of the police personnel on the spot. More specifically, proving of the arrival and departure entry of police personnel who apprehended the accused persons with case property appears indispensable, as the instant case rests completely on the alleged recovery.
11. It is also pertinent to observe that the case property was allegedly sealed by the IO with the seal of PP and the said seal was handed over to Ct. Devender after use. It was not handed over to any independent witness nor it was deposited in Malkhana to assail the possibility of its misuse. To add, when the case property was produced before the court for the first time during examination of PW 2, one of the katta (plastic bag) was without any seal and one was with FIR No. 209/2005 PS Kanjhawala 7 illegible seal. No explanation is rendered for such production and leads to only one inference that the case property may have been tampered and its false implication on accused cannot be discarded.
12. Most importantly in the present case, PW 4 SI Puran Pant deposed that he seized the illicit liquor vide seizure memo Ex. PW 2/B and thereafter FIR was got registered. Interestingly, Ex. PW 2/B i.e bears the FIR number and case details in the same ink in which the documents are prepared which indicates that the FIR number was inserted while preparing the documents. The FIR is admittedly registered later after the preparation of seizure memo Ex. PW 2/B. No explanation has been furnished on record as to how the FIR registration number has appeared on this document. It leads to only one inference either the document was prepared later or the FIR has been registered earlier in point of time. Both the situations create dents and leave unexplained holes in the prosecution story, the benefit of which must accrue to the accused. This court finds force from the following judgments on the same point of law:
Zofar v. State, 2000 II AD (DELHI) 137 Prithvi Pal Singh @ Munna v. State 2000 [1] JCC [Delhi] 274 Md. Hashim v. State 1999 VI AD (Delhi) 569 Ashok Kumar v. State 2000 I AD (Delhi) 10 Kailash @ Kuddu v. State of Delhi 2000 [1] JCC [Delhi] 162 It would be appropriate to reproduce the relevant extract from the judgment titled as Zofar v. State, 2000 II AD (DELHI) 137, as follows:
"Surprisingly, the secret information (Ex. P.W.7/B), the notice under Section 50 of the Act (Ex. P.W. 4/A) and the Seizure Memo (Ex. P.W. 4/C) bear the number of FIR No. 209/2005 PS Kanjhawala 8 the FIR (Ex. P.W.1/B). The number of the FIR (Ex. P.W.1/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation whatsoever as to under what circumstances number of FIR (Ex. P.W.1/B) has appeared on the top of the aforesaid documents, which are allegedly prepared on the spot before the registration of the FIR. This gives rise to two inferences that either the FIR (Ex. P.W.1/B) was recorded prior to the alleged recovery of contraband or number of the said FIR was inserted in these documents after its registration. In both the situations it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
13. It is dogmatic in criminal jurisprudence that the prosecution is under the obligation to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is well settled legal proposition that the benefit of doubt goes in favour of the accused. The accused cannot be convicted on the presumptions, assumptions or mere probabilities.
14. Considering the facts that no independent witness was cited or examined, arrival and departure entries not proved, appearance of FIR number on the seizure memo and production of case property without seal, when kept in juxtaposition to each other, shrouds clouds of suspicion over the prosecution version. The possibility of planting the recovery on the accused cannot be discarded in these facts and circumstances.
15. Thus, this court is of the considered view that the benefit of doubt in the present case be FIR No. 209/2005 PS Kanjhawala 9 given to the accused and he entitled to be exonerated on the charges against him in the present case. The accused Krishan and Vinod are hereby acquitted for the offence U/s 78/61 of Punjab Excise Act. Bail bonds are cancelled. Case property be confiscated to State as per Rules. Surety is discharged. Documents, if any be returned after cancellation of endorsement on the same.
16. File after necessary compliance be consigned to record room.
Announced in the open court ( Sushil Anuj Tyagi )
on 12th day of March, 2012. Metropolitan Magistrate,
Rohini Courts: Delhi
FIR No. 209/2005 PS Kanjhawala
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