Delhi District Court
In Re: State vs Bhawar Singh on 3 February, 2012
IN THE COURT GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS BHAWAR SINGH
F.I.R. No: 188/2000
U/s 61/1/14 Excise Act
P.S. Defence Colony
Date of Institution of Case : 14.02.2001
Date of Judgment Reserved for : 03.02.2012
Date of Judgment : 03.02.2012
JUDGMENT:
(a) The serial no. of the case : 3/3/2001
(b) The date of commission of offence : 17.03.2000
(c) The name of complainant : ASI Avdesh Oaron
(d) The name, parentage, : Bhanwar Singh S/o Sh. Sohan
Lal, r/o Jhuggi No. E381, J.J.
Camp, Gautam Nagar, New
Delhi.
Present Address : As above
(e) The offence complained of : U/s 61 of Punjab Excise Act
1914
FIR No.188/2000 State Vs. Bhawar Singh 1/11
(f)The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 03.02.2012
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on the intervening night of 16/17.03.2000 at about 1:00 AM at Gautam Nagar, near Sudharshan Cinema, New Delhi within the jurisdiction of police station Defence Colony, accused Bhanwar Singh was found in possession of one plastic cane containing illicit liquor equivalent to 20 bottles of 750 ml. without any permit or license and thereby the accused committed offence u/s 61 of Punjab Excise Act 1914.
2. Charge sheet filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide order dated 04.02.2002, charge u/s 61/1/14 Punjab Excise Act was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined five witnesses, where after the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case.
FIR No.188/2000 State Vs. Bhawar Singh 2/11 A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Ct. Hunkar Chand deposed that on 07.04.2000 he was posted at PP Gulmohar Park at PS Defence Colony and on that day he took the sample bottle sealed with the seal of AO from MHCR and deposited the same at Vikas Bhawan Lab in duly sealed condition. He deposed that nobody tempered with it till it remained in his custody.
5. During his cross examination he stated that his statement was not recorded by the IO. He stated that on 07.04.2000 he made his departure entry at PS but he does not remember the DD number and time. He stated that he only took one sample bottle. He stated that he does not know the name and designation of the official of the Excise Lab to whom he handed over the sample. He denied the suggestion that he had not gone to Excise Lab with sample. He denied the suggestion that seal of the sample was not intact. He denied the suggestion that he was deposing falsely at the instance of the IO.
6. PW2 HC Jagat Singh deposed that on 17.03.2000 he was posted at PP Gulmohar Park PS Defence Colony and on that day upon investigation of the present FIR, he reached at near Sudharshan Cinema, Gautam Nagar at about 2.30 am where ASI Avdesh Oaron met him and produced the accused (correctly identified) along with documents. He deposed that he arrested the accused in FIR No.188/2000 State Vs. Bhawar Singh 3/11 presence of Ct. Rakesh Kumar and conducted the personal search of accused vide Ex. PW2/A. He deposed that he prepared site plan vide Ex. PW2/B. He deposed that during investigation he recorded statements of witnesses, sent the sample to Excise Lab on 07.04.2000 though Ct. Onkar Chand. He deposed that he recorded the statement of witnesses and on his transfer he handed over the case file to MHCR.
7. PW3 ASI Avdesh Oaron deposed that 16/17.03.2000 he was posted at PP G.M. Park, PS Defence Colony and on that night, he along with Ct. Rakesh Kumar were on patrolling duty and at about 1.00 am when they reached near Sudharshan Cinema, Gautam Nagar, they saw the accused (correctly identified) coming towards Sudharshan Cinema from Yusuf Sarai carrying a black plastic can on his left shoulder. He deposed that on seeing them, he started going towards gali. He deposed that on suspicion, he was apprehended and on checking, the can was found containing liquor. He deposed that he sent Ct. Rakesh to bring bucket and bottle. He deposed that he brought the same and on measuring with the help of empty bottle, the can of the accused was found containing liquor equivalent to 20 bottles of 750 ml illicit liquor. He deposed that liquor in one bottle was sealed separately as sample and remaining liquor was sealed in the same can. He deposed that sample bottle and plastic can were sealed with the seal of AO. Seal after use was handed over to Ct. Rakesh. IO prepared the seizure memo of the same vide Ex. PW3/A. He deposed that he FIR No.188/2000 State Vs. Bhawar Singh 4/11 prepared the rukka vide Ex. PW3/B and sent Ct. Rakesh to PS for registration of FIR. He deposed that after registration of FIR he along with HC Jagat Singh came to the spot along with copy of FIR and original rukka. He deposed that he handed over the accused along with documents to HC Jagat Singh who arrested the accused and prepared site plan and conducted further proceedings.
This witness has further correctly identified the case property i.e. Ex. P1.
8. PW4 HC Satya Narain deposed that on the intervening night of 16/17.03.2000 he was posted as DO at PS Defence Colony and on that day at about 1.50 am on receipt of rukka through Ct. Rakesh Kumar sent by ASI Avdesh he recorded the case FIR No.188/00 vide Ex. Pw4/A and made endorsement on the rukka vide Ex. PW4/B.
9. PW5 HC Rakesh Kumar deposed on the same lines as deposed by PW3 ASI Avdesh Oaron.
10. During his cross examination he stated that DD entry for departure was done at the PS but he does not remember the DD entry number. He stated that they left for patrolling from PS at about 12.00 night. He stated that no public person was present at the spot. He stated that he picked up the iron bucket from near the spot where the construction was carried out. He stated that he also picked one bottle from the above said place where the construction was carried FIR No.188/2000 State Vs. Bhawar Singh 5/11 out in which they filled the liquor. He denied the suggestion that he was deposing falsely or that the recovery was planted upon the accused. He denied the suggestion that he was deposing falsely at the instance of the IO. He denied the suggestion that as the liquor was planted upon the accused at the PS no public person could be joined in the investigation.
11. I have heard the arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
12. The learned defence counsel has very vehemently argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there is no independent corroboration thereof. It was further argued that the recovered liquor was planted upon the accused. It was also argued that a careful scrutiny of the testimony of the prosecution witnesses would reveal that they contradicted each other on material particulars. On the other hand, the Ld. APP argued that there is no requirement of law that independent witness be joined during investigation or raid or that the testimony of police official is unreliable in the absence of any independent corroboration.
13. I have heard the rival submissions. No doubt that Police officials/official FIR No.188/2000 State Vs. Bhawar Singh 6/11 witnesses are as good as any other witness however, when public persons were available and still they have not been joined in the investigation and no notice has been served upon them in case of refusal the prosecution case/their testimony has to be scrutinized stringently.
14. In '' 1990 CCC 3 '', titled as '' Roop Chand V/s State of Haryana '' it was observed as under :
''When some witness from the public was available the explanation furnished by the prosecution that they refused to join the investigation, the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.
15. In '' 1990 CCC 20 '' titled as '' Maluk Singh V/s State of Punjab '' , it was further held that:
''Joining of witnesses in the case of excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency it is always desirable that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation''.
16. Further reliance can be placed upon "Hem Raj v. State of Haryana AIR FIR No.188/2000 State Vs. Bhawar Singh 7/11 2005 SC 2110, Sahib Singh v. State of Punjab AIR 1997 SC 2417, D.V. Shanmugham v. State of A.P., AIR 1997 SC 2583 and Pawan Kumar v. The Delhi Administration, 1989 Cr.L.J 127 Delhi wherein it has been observed that in the absence of public witness/nonjoining of public/independent witnesses the prosecution story has to be approached with caution more so when the investigation officer failed to take action against those who refused to join the alleged raid.
17. As is evident from the deposition of the prosecution witnesses, the place of alleged recovery was a very busy place/ought to be a very busy place as it was opposite the AIIMS hospital with a cinema hall and a jhuggi cluster situated nearby. However, none from the public could be joined by the police official during the alleged raid and seizure. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable. In the case of PREM SINGH VS. STATE 1996 CRI. L. J. 3604 (DELHI) and in the case of PAWAN KUMAR VS. DELHI ADMN. 1989 CRI. L.J. 127 it was observed that in case of failure to join independent witness benefit of doubt must be given to the accused.
18. In the present case, no efforts were made to hand over the seal after use to independent public persons and it remained with the officials of the Police Station only. In such cases in view of the case titled as SAIFULLA VS. STATE FIR No.188/2000 State Vs. Bhawar Singh 8/11 1998 (1) CCC 497(DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused. Till the time case property is not dispatched to the FSL the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of the seal, contraband and the samples being tempered with cannot be ruled out (Tara Singh v. State of Punjab (P&H) 2004 (1) R.C.R. (Criminal) 623).
19. Apart from the non joining of independent witness the prosecution story suffers from various loop holes. Admittedly, no signatures of the person depositing the case property in the Malkhanna were taken in register no. 19 by MHC (M) and neither the signatures of the person who took the sample to FSL were taken. These circumstances especially when the seal was not handed over to independent persons and remained with the police officials of the same police station where the property was lying benefit of doubt must be given to the accused as observed in AJIT SINGH VS. STATE OF PUNJAB 1984 (2) RECENT CRIMINAL REPORTS 95.
20. Neither the road certificate via which the sample was allegedly sent to Laboratory could be proved by the prosecution. In the absence of both these ma terial documents/missing link in the prosecution story benefit has to be given to the accused. Reliance can be placed upon 1994 Drugs cases page 154'', titled as '' Ghanshyam V/s State '' and '' 72(1999) DLT 435 '' , titled as '' Sunil V/s State '' .
FIR No.188/2000 State Vs. Bhawar Singh 9/11
21. Even the departure and arrival of the police officials to the police station have not been proved by the prosecution to lend credence to the version of the prosecution.
22. The testimony of PW1 Ct. Hunkar Chand failed to inspire confidence as neither could he prove the DD entry vide which he left the PS with the seal sample bottle nor could he give the name of the official with whom he deposited the sample in the Excise Lab. If he could remember the date when he took the sample to the Excise Lab as well as the initials of the seal on the sample he could very well remember the DD entry as well as the name of the official at Excise Lab. His failure to divulge the said facts casts serious doubts upon his claim. Similarly, the claims of PW5 that he brought the bucket and bottle for measuring the liquor from a nearby construction site also did not inspire confidence and seems to be only and after thought.
23. Lastly I may reiterate the observations made in Raghbir Singh and another v. The State of Haryana, 1990(1) Chandigarh Law Reporter 695; State of Punjab v. Gurmej Singh, 1991(2) Recent Criminal Reports 361; State of Punjab v. Gurnam Singh, 1991(3) Recent Criminal Reports 4122 and Gurvel Singh v. The State of Punjab, 1992(1) Recent Criminal Reports 114 where it has been held that failure of the Investigating Officer to join independent FIR No.188/2000 State Vs. Bhawar Singh 10/11 witnesses of the locality in investigation sounds the death knell of the prosecution case set up against accused and the accused is entitled to secure an acquittal on this score.
24. In view of the above discussion, I am of the considered opinion that the prosecution has not been able to prove the charges against the accused beyond the shadow of doubt. Accused is accordingly entitled for acquittal.
25. I order accordingly.
Announced in the open (Gaurav Rao) Court on 03.02.2012 MM (SD)/Delhi. FIR No.188/2000 State Vs. Bhawar Singh 11/11 F.I.R. No: 188/2000 U/s 61/1/14 Excise Act P.S. Defence Colony 03.02.2012 Pr: Ld. APP for state.
Accused is present on bail along with his counsel.
PW HC Rakesh Kumar is present. He has been examined, cross examined as PW5 and discharged.
Statement u/s 313 Cr.P.C. of the accused has been recorded. Accused has submitted that he does not lead any evidence in his defence.
Ld. Defence Counsel has submitted that he is ready with the final arguments.
Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao) MM (SD)/Delhi.
03.02.2012.
FIR No.188/2000 State Vs. Bhawar Singh 12/11