Delhi District Court
In Re: State vs Arvind Huda Etc. on 13 April, 2010
IN THE COURT OF SHRI GAURAV RAO: METROPOLITAN MAGISTRATE:
DELHI
In Re: STATE VERSUS ARVIND HUDA ETC.
F.I.R. No: 640/97
U/s 61/1/14 Punjab Excise Act
P.S. Nangloi
Date of Institution of Case : 19.09.1997
Date of Judgment Reserved for : 13.04.2010
Date of Judgment : 13.04.2010
JUDGEMENT:
(a) The serial no. of the case : 2045/2/08 (b) The date of commission of offence : 14.08.1997 (c) The name of complainant : ASI Jai Kishan (d) The name, parentage, : 1) Arvind Hooda s/o Ram Rattan
of accused Hooda, R/o H. No. 11/679, Arya Nagar, Bahadurgarh, Haryana.
2) Chintamani s/o Mahender Singh R/o VPO Small, Rohtak Haryana.
3). Hawa Singh s/o Raghubir Singh, r/o VPO Small, Rohtak.
4). Avtar Singh s/o Late Sh. Hawa Singh, r/o H. No. 11/407, Friends Colony, Bahadurgarh, Haryana.
Present Address : As above (e) The offence complained of : U/s 61 of Punjab Excise Act 1914 (f) The plea of accused : Pleaded not guilty
(g) The final order : Accused Arvind Hooda, Chintamani, Hawa Singh and Avtar Singh are acquitted.
FIR No. 640/97 1/1 2Accused Ravinder and Joginder have already expired as reflected in order sheet dated 25.08.2007.
(h) The date of such order : 13.04.2010 Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 14.08.1997 at about 10.50 PM at godown near Gian Builder in front of Tikri Payau, Tikri Kalan Delhi within the jurisdiction of police station Nangloi accused Arvind Huda was found in possession of 305 peties of Pure Gold Whisky containing 12 bottles each, one katta containing 36 bottles of Dr. Special Whisky, one bori containing 48 bottles of Custom liquor and 34 peties containing 12 bottles each of Dr. Special Whisky which was lying in a godown under his possession, accused Joginder along with co-accused Ravinder (since deceased) was found in possession of 15 peties of Pure Gold Whisky containing 12 bottles each which was lying in car bearing registration no. DL-3CA-2617 and accused Chintamani was found in possession of 20 peties of Pure Gold Whisky containing 12 bottles each which was lying in car bearing registration no. DL-8C-3173 and accused Hawa Singh and Avtar Singh were found in possession of 21 peties of Pure Gold Whisky containing 12 bottles each which was lying in car bearing registration no. HR-07-0222 without any permit or licence and thereby the accused persons committed offence u/s 61 of Punjab Excise Act 1914.
2. Charge sheet was filed in the court and in compliance of section 207 Cr.P.C. documents were supplied to the accused persons and thereafter, vide order dated 31.08.2002, charge u/s 61/1/14 Punjab Excise Act were framed against accused persons to which they pleaded not guilty and claimed trial.
FIR No. 640/97 2/1 23. In order to prove the charges against the accused, prosecution so far examined four witnesses. Today vide my separate order, PE has been closed and S.A dispensed with.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 DO/HC Ram Mehar deposed that on 15.08.1997 he was posted at PS Nangloi and on that day at about 7.55 am he received a rukka sent by ASI Jai Kishan through Ct. Naresh on the basis of which he registered case FIR as Ex. PW1/ A. In his cross examination he denied the suggestion that the FIR was registered while sitting in the PS at the instance of the IO.
5. PW 2 HC Bhagwati Prasad deposed that on 15.08.1997 he was posted at PS Nangloi as MHC(M) and on that day IO ASI Jai Kishan handed over him 402 peties, 3 cars, jamatalashi articles and form M-29 which he deposited the same in malkhana vide entry no. 2449 in register no. 19 as Ex.PW2/A. The three cars had been released on superdari by the Court orders. He further deposed that on 28.08.1997 on the instruction of the IO, he sent the sample to excise office through Ct. Prahlad vide RC no. 290/21/97 and the Constable handed over him the receipt of the same. He further deposed that case property was not tampered by him or any other person during it remained in his possession.
During his cross examination he denied the suggestion that he was deposing falsely and the said entry has been fabricated.
FIR No. 640/97 3/1 26. PW 3 SI Susheel Kumar deposed that on 14.08.1997 he was posted at Special staff West District as ASI and on that day he prepared a raiding party along with SI Hari Bhushan, ASI Rakesh Kumar, HC Naresh Kumar and other staff members and left the PS along with the secret informer in a Govt. car bearing no. DBL-6725 and a private car reached at Tikri village. At about 10.45 pm they reached near Gian Property and at about 10.50 pm raided the godown of the said property at the instance of the secret informer and found huge quantity of liquor peties lying in the godown. They apprehended the accused Arvind Kumar who was present in the said godown and present in the Court. He deposed that one white colour Maruti car bearing no. DL-8C-3173 was standing in the godown and in which one person who was sitting on the driver seat was aslo apprehended by them and who disclosed his name as Chintamani present in the Court and the other white colour car bearing no. DL-3CF-2617 was also lying in the godown in which Ravinder was sitting in the driver seat and accused Joginder was also sitting in the car (both present and correctly identified). He deposed that one other white colour Maruti car bearing no. HR-07-0222 was parked in the godown and accused Hawa Singh was sitting on the driver seat and besides him Avtar Singh was sitting (both correctly identified). Both of them were apprehended and around 305 peties of liquor containing 12 bottles labeled with Pure Gold Whisky, one katta containing 36 bottles of Dr. Special Whisky, one bori containing 48 bottles and 34 peties containing 12 bottles each labeled with Dr. Special Whisky were recovered from accused Arvind. He further deposed that on checking car bearing no. DL-8C-3173 it was found containing 20 peties of Pure Gold Whisky containing 12 bottles each. He further deposed that on checking car bearing no. DL-3CF-2617 it was found containing 15 peties of Pure Gold Whisky containing 12 bottles each. He further deposed that on checking car bearing no. HR-07-0222 it was found containing 21 peties of Cox Whisky containing 12 bottles each. He deposed that one peti of Pure Gold Whisky and one peti of Dr. Special Whisky along with one peti of Cox Whisky FIR No. 640/97 4/1 2 were taken out as sample along with two peties from each of the three cars and the remaining liquor was sealed with the seal of JK after tying them with a rope. FSL form was filled and seal after use was handed over to him and the entire liquor along with the sample and the cars were taken into possession vide Ex.PW3/A, IO prepared the rukka which HC Naresh Kumar took to PS for registration of the case. IO prepared the site plan Ex.PW3/B and HC Naresh Kumar after sometime came back at the spot along with copy of the FIR and all the accused persons were arrested and their personal search were conducted vide Ex.PW3/C and H respectively.
This witness identified the case property as Ex.P1 to P7 collectively. In his cross examination this witness admitted that 100 peties out of the case property did not have any seal and the rope used for tying them was also damaged. He further admitted that 20 boxes containing was damaged.
7. PW 4 Suresh Kumar deposed that he is the resident of Tikri village and have an agriculture land there and about 13 years back at about 8.00 pm, he went to his agricultural land/khet and was carrying mud from there when 4-5 police persons came there and asked him what he was doing. On this, he told them that he is the owner/farmer of that field and carrying mud. He deposed that he does not know anything else about this case or why he had been called repeatedly in the Court. He deposed that he does not remember whether he signed any document or not. He deposed that probably his signatures were obtained on certain papers by the police officials. He deposed that he does not know anything.
This witness was cross examined by the Ld. APP and in his cross examination he admitted that on 15.08.1997 he went to his office in the name of Ghyan Builder in Tikri village. He further admitted that police personnel met him there and they inquired from him. He denied the suggestion that there was a FIR No. 640/97 5/1 2 godown near his said office nearby police was present who joined him in the investigation. He voluntarily stated that police was present but there was no godown. He denied the suggestion that police had apprehended six persons i.e. Arvind Huda, Chintamani, Ravinder, Joginder, Hawa Singh and Avtar Singh there along with huge quantity of liquor of various brands and with three Maruti cars. He further denied the suggestion that the above said six persons were arrested and their personal search was carried out in his presence and he signed the respective memos. He voluntarily stated that no persons were arrested by the police and no recovery of liquor was made in his presence however, police took his signatures on blank papers. He admitted that memo already Ex.PW3/C, Ex.PW3/D, Ex.PW3/E, Ex.PW3/F, Ex.PW3/G and Ex.PW3/H bears his signature at point X but nothing was written on the said documents when he signed the same and he was not aware as to what was written on the same later on. He denied the suggestion that he was deposing falsely out of fear or favour as he had been won over by the accused persons. He stated that he cannot identify any liquor, case property/car as nothing was recovered in his presence. He further stated that he cannot identify any of the accused persons as nobody was arrested in his presence and he was seeing them for the first time.
8. This is all as far as prosecution evidence in the matter is concerned.
9. 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.
10. 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. The only public witness turned hostile and apart from the said witness no independent witness from the vicinity was joined.
FIR No. 640/97 6/1 2During the course of arguments reliance was placed upon case titled as 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 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. It was further argued that the recovered liquor planted upon the accused. 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.
11. No doubt that Police officials/official 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.
12. 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''.
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, FIR No. 640/97 7/1 2 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''.
13. Further reliance can be placed upon "Hem Raj v. State of Haryana AIR 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/non-joining of public/independent witnesses the prosecution story has to be approached with caution more so when the investigation office failed to take action against those who refused to join the alleged raid.
14. The only public witness as examined by the prosecution who allegedly joined the raid turned hostile and did not support the prosecution story on any count. He denied having any knowledge about the present case/FIR and stated that he does not know why he was summoned in the Court. He was cross examined by the Ld. APP however his cross examination failed to serve any fruitful purpose for the prosecution. In his cross examination, he stated that "it is incorrect to suggest that there was a godown nearby my said office nearby police was present to join the investigation. ............ It is wrong to suggest that police had apprehended six persons (Arvind Hooda, Chintamani, Ravinder, Joginder, Hawa Singh and Avtar Singh) there along with huge quantity of liquor of various brands and three Maruti cars.......... I cannot identify any liquor, case property/car as nothing was recovered in my presence. I cannot identify any of the accused persons as nobody was arrested in my presence. Therefore, this witness did not support the prosecution story and the same came crashing down. He denied being part of FIR No. 640/97 8/1 2 the alleged raid/seizure of liquor and subsequent arrest of accused persons and instead stated that his signatures were obtained on blank papers. His turning hostile thus proved fatal for the prosecution case.
15. Apart from this, 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 (it remained with PW 3 as he so stated in his chief). This further casts doubts on the prosecution story as if the IO in fact/in reality joined Suresh Kumar in the raid he should have handed over the seal to him, which he failed to do. In such cases in view of the case titled as SAIFULLA VS. STATE 1998 (1) CCC 497(DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused.
16. In the present case, when the case property was produced in the Court during trial ie. on 05.05.2003 it was observed that the bulk of the case property did not have any seal i.e was without seal and most of it was damaged and bottles were broken and empty. This shows that neither the case property was preserved during the trial and the fact it was not bearing any seal casts serious doubts regarding the entire seizure proceedings because if the case property was seized and sealed at the spot as claimed by PW 3 the same ought to have been bearing the seal of JK but such was not the case. In Ramji Singh v. State of Haryana (P&H) 2007(3) R.C.R. (Criminal) 452 the accused was acquitted as when the case property was produced in the Court, the seal was broken and in- decipherable. Similarly, in Channa Ram @ Maiya v. State of Haryana, (P&H) 2004(4) R.C.R. (Criminal) 440 and Didar Singh v. State of Punjab, (P&H) 1989(2) R.C.R. (Criminal) 195 the accused was acquitted by the Hon'ble High Court as when the case property was produced in the Court it was found that the same was not sealed. Regarding the broken bottles/case property as observed by the Court it itself shows the manner with which the same was dealt by the FIR No. 640/97 9/1 2 SHO/IO during the time it remained in possession of police official in malkhana. Under Rule 22.15 it is responsibility of Office Incharge of Police Station to exam- ine the property twice a month. Under Rule 27.17 it is his duty to maintain case property till such time the final orders are passed. Once the case property is found to be broken/damaged import link in the prosecution story goes missing and the accused becomes entitled to acquittal. Reliance can be placed upon case titled as Singara Singh v. State of Haryana (P&H) 1997(2) R.C.R (Criminal) 783. Further in State of H.P. v. Chhinda @ Surinder (H.P.) 1990(1) R.C.R. (Criminal) 408 it was observed that deposit and unkeep of property in malkhana is fundamental importance. Further reliance can be placed upon case titled as "Dattu Ram v. State 1996 1 AD (Delhi) 52 as well as "Dhanpat V. State of Punjab 2000 (1) CC cases HC 52".
17. Ld. APP argued that such huge quantity could not have been planted upon the accused persons and the liquor was in fact recovered from the accused persons on 14.08.1997. However, I do not agree with the contentions as raised by the Ld. APP. The only public witness turned hostile, case property did not bear any seal, was damaged. The law is well settled that mere heavy recovery is no ground to conclude that whatever has been stated by the police is a gospel truth. Reliance can be placed upon Dinesh Kumar v. State (Delhi) 1993(2) R.C.R (Criminal) 153. In the present case, when the public witness/independent witness turned hostile, conviction cannot be based upon the testimony of the police officials only (Ramswaroop Jaiswal v. State of Rajasthan, (Rajasthan) (Jaipur) 2007 Cri.L.J 1566).
18. No signatures of the person depositing the case property in the Malkhanna were taken in register no. 19 and neither the signatures of the person who took the sample to FSL were taken as is evident from Ex.PW2/A. These circum- stances especially when the seal was not handed over to independent persons FIR No. 640/97 10/ 12 and remained with the police officials of the same police station where the prop- erty 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.
19. One of the most glaring aspect of the present case is that the prosecution alleged storage of such huge quantity of liquor at a godown as shown in Ex.PW3/B however, the prosecution failed to come up with any records regarding the said godown i.e who was the owner of the same and how come the liquor as alleged by the prosecution was lying there/how the accused persons used the said godown for storage of said liquor i.e. whether the same belonged to the ac- cused persons or someone else. No documentary evidence i.e. proof of owner- ship etc was collected by the IO during the investigation as nothing is available on record in this regard.
20. In this case the FIR number is mentioned on the recovery memo/seizure memo. Same is written in the same ink/pen/flow as the other particulars on the said documents. Admittedly this document was prepared before registration of F.I.R. In the case of MOHD. HASHIM VS. STATE 1999 (6) A.D. (DELHI) 569 it was observed that when documents are prepared before registration of F.I.R. and it contains the F.I.R. No. then inference has to be drawn that either F.I.R. was recorded prior in time or the documents were prepared later on and in such cases benefit of doubt is to be given to the accused.
21. 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 persons beyond the shadow of doubt. Accused persons are accordingly entitled for acquittal. I order accordingly. Surety bonds cancelled, sureties discharged. Endorsements, if any on the documents of surety be cancelled forthwith. No further orders are required to be passed in the matter.
FIR No. 640/97 11/ 12
22. File be consigned to Record Room as per rules and procedure.
Announced in the open (Gaurav Rao) Court on 13.04.2010 MM (West)/Delhi. FIR No. 640/97 12/ 12 13.04.2010 FIR No. 640/97 PS Nangloi Pr: Ld. APP for state. Accused is present on bail.
PW 4 is present. He is examined, cross examined and discharged. No other PW is present.
I have gone through the deposition of PW 4 who turned hostile as well as the Court observations made during the deposition of PW 3. No purpose shall be served in further continuation of trial.
Ld. APP has requested for one more opportunity to lead evidence however, looking at the fact that matter is 13 years old and enough opportunities have already been granted to the prosecution and further looking into my above said observations, PE stands closed and as no worthy incriminating material has been brought forward against the accused persons, S.A is dispensed with.
Vide my separate judgment announced today in the open court, accused persons have 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 (w)/Delhi/13.04.2010
FIR No. 640/97 13/
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