Delhi District Court
State vs Shiv Shankar on 15 October, 2012
IN THE COURT OF SH. MUNEESH GARG
METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS, DELHI
FIR No. 289/05
U/s 61 Excise Act & 174A IPC
State versus Shiv Shankar
PS Geeta Colony
JUDGMENT
a. Unique ID Number of the case : R0681792005 b. Sl. No. of the case : 5/3 c. Date of commission of offence : 11.09.2005 d. Date of institution : 25.02.09 e. Name of complainant : Constable Devender f. Name & address of accused person : Shiv Shanker Mandal S/o Sh. Jwala Prasad Mandal, R/o Jhuggi No. D-57, Thokar No. 16, Shamsham Ghat, Delhi.
g. Offence complained of : U/s 61 Excise Act & Section 174A IPC h. Plea of accused : Pleaded Not Guilty i. Date when order was reserved : Not Reserved j. Final order : Acquitted U/s 61 Excise Act and Convicted U/s 174A IPC k. Date of Judgment : 15.10.2012 FIR No. 289/05 Page No. 1/13 BRIEF STATEMENT OF REASONS FOR DECISION
01. Briefly stated the story of the prosecution is that on 11.09.2005 at about 08:50 pm at Bus Stand, Shamshan Ghat, Pushta Thokar No. 16, Geeta Colony, Delhi, accused was found in possession of plastic can of 05 litre filled with country made liquor without any licence or permit and thereby committed an offence punishable u/s 61 Punjab Excise Act, 1914. Further, the accused failed to appear before the Court on 09.12.10 as required by the Proclamation published under section 82 (1) of Code of Criminal Procedure and the accused had been declared proclaimed offender under section 82 (4) Cr.P.C. vide order dated 26.03.2011 of Ld. Predecessor of the Court and thus thereby committed an offence punishable U/s 174 A IPC.
02. After filing of the police report, cognizance of offence under section 61 Punjab Excise Act, 1914 was taken by Learned Predecessor of the Court and the accused was called upon to face trial after complying with the requirement of section 207 of CrPC.
03. On 01.06.2012, after hearing the Ld. APP for the State and the accused, a formal charge was framed against the accused for having committed an offence punishable under section 61 Punjab Excise Act, 1914 and section 174 A IPC to which the accused pleaded not guilty and claimed trial.
04. It is pertinent to mention here that during the course of trial, that the accused defied the process issued by the court hence he was declared proclaimed offender by the Ld. Predecessor of the Court on 09.12.10 and a FIR No. 289/05 Page No. 2/13 supplementary charge sheet had been filed against the accused U/s 174 A IPC and additional charge U/s 174 A IPC has been framed.
05. Prosecution adduced evidence in support of its case.
06. PW 1 Constable Devender, who was posted as constable in PS Farsh Bazar on the day of incident, is a recovery witness. He deposed that on 11.09.05, he alongwith Constable Ram Kumar apprehended the accused having one plastic can of 05 litres of liquor. In the meantime, IO HC Raj Pal Singh reached at the spot. He handed over the accused alongwith case property to the IO. IO prepared seizure memo Ex. PW-1/A and sealed with the seal of RPS. Form M 29 was filled at the spot. Thereafter, IO prepared rukka on his statement Ex. PW 1/B and handed over the same to Constable Ram Kumar for registration of FIR. He went to Police Station Geeta Colony and got registered FIR and came back to spot alongwith copy of FIR and original rukka and handed over the same to IO. IO prepared site plan at his instance. Accused was arrested vide arrest memo Ex. PW 1/C and accused was personally searched vide personal search memo Ex. 1/D. Case property was deposited in Malkhana. PW 4 identified the accused in court and identified the can Ex. P1. PW 4 was cross-examined by the Legal Aid Counsel for the accused.
07. PW 2 HC Ram Kumar who on 11.09.05 was posted as constable in PS Geeta Colony is also a recovery witnesses and deposed regarding the apprehension of accused with case property, seizure of case property, arrest of the accused and personally search and depositing of case property in FIR No. 289/05 Page No. 3/13 Malkhana. PW 2 identified the accused in court and case property. PW 2 was cross-examined by Legal Aid Counsel for the accused.
08. PW3 HC Baljor Singh who was duty officer on the day of incident deposed that he registered FIR no. 126/03 Ex. PW-1/A and made endorsement on rukka Ex. PW-1/B.
09. PW 4 ASI Rajpal Singh, who was posted as Head Constable on the day of incident, is IO of the case. He deposed that on 11.09.05, while on patrolling duty he reached near Bus Stand, Shamshan Ghat, Pushta Thokar No. 16, Geeta Colony, he met with Constable Devender and Constable Ram Kumar who handed over the accused alongwith case property to him. He took one quarter as a sample out of the said plastic can. He seized the sample quarter bottle and plastic can vide seizure memo Ex. PW 1/A and sealed the same with the seal of RPS. He filled form M 29. Thereafter, He prepared rukka Ex. PW 4/A and handed over the same to Constable Ram Kumar for registration of FIR who went to PS for registration of FIR and came back to spot alongwith copy of FIR and original rukka and handed over the same to him. He prepared site plan Ex. PW 4/B at the instance of Constable Devender. Accused was arrested vide arrest memo Ex. PW 1/C and accused was personally searched vide personal search memo Ex. 1/D. case property was deposited in Malkhana. PW 4 identified the accused in court. PW 4 was cross-examined by the defence.
10. PW 5 Head Constable Ramesh Chand executed the process issued under section 82 Code of Criminal Procdure against the accused at address FIR No. 289/05 Page No. 4/13 of Jhuggi No. D-57, Thokar No. 16, Shamshan Ghan, Delhi and his detail report is Ex. CW 1/A. PW 5 was cross-examined by the Legal Aid Counsel.
11. PW-6 Head Constable Chote Lal arrested accused Shiv Shankar who was a proclaimed offender, on 25.02.12, vide arrest memo Ex. PW-6/A and personally searched vide memo Ex. PW-6/B. He filed kalandara under section 41.1 (C) Code of Criminal Procedure Ex. PW-6/C.
12. It is pertinent to mention here that during the course of trial, the accused moved an application to plead guilty for the offence punishable U/s 174 A IPC. I also examined the accused for the voluntarliness of his plea of guilt and found that the accused was making his plea of guilt for the offence U/ 174 A IPC voluntarily and without any undue influence, threat and promise.
13. After closure of prosecution evidence, the statement of the accused was recorded u/s 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused and he was questioned generally on the case. He denied all the allegations and stated that he is innocent as no illicit liquor has been recovered from his possession and stated that he has been falsely implicated in this case, however, he admitted his guilt for absconding from the court proceedings. The accused opted not to lead any defence evidence.
14. I have heard the submissions of both the parties and perused the evidence on record carefully.
FIR No. 289/05 Page No. 5/1315. As per the prosecution version there is two recovery witnesses PW 1 Constable Devender and PW 2 (HC Ram Kumar) who were on patrolling duty at the relevant time, however no document / DD entry have been shown by which it can be proved that they were on duty in the concerned area.
For knowing the importance of the DD entry of arrival and departure of the police officials from the police station, I have perused Chapter 22 Rule 49 of Punjab Police Rules, 1934 which reads 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 all 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 personally by signature or seal.
Note:The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
In the present case, the above said provision appears to have not been complied with by prosecution. As per the prosecution version at the time of the apprehension of the accused at Shamshan Ghat Pushta with illicit liquor in his possession, PW 1 and PW 2 were on patrolling duty but the DD entry vide which he had left the PS for duty has not been brought on record. The FIR No. 289/05 Page No. 6/13 number of the said DD entry made in Register No. II has not even been brought on judicial record. In my opinion, prosecution was under an obligation to prove on record, the above said DD entry vide which above said police official had left the PS for patrolling duty so as to prove the possibility of availability of PW 1 and PW 2 at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have proved the DD entry by which the above said police official had left the PS so as to inspire the confidence regarding their availability / presence at the place of apprehension of the accused.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal versus State 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that:
"if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
16. PW 1 Constable Devender deposed that on 11.09.05, accused was apprehended with one plastic can containing of 5 litre of country made liquor at Bus stand, Shamshan Ghat Pushta. From his testimony, it is clear that he did not make any attempt to join public witnesses at the time of FIR No. 289/05 Page No. 7/13 recovery of the can. According to the witness, it is only when the IO came to spot and the can was handed over to him that the IO requested passers by to join the investigation. At that time, since the recovery had already been effected, there was no requirement of joining public witnesses as there was nothing left to be witnessed. It seems that the attempt to join public witnesses was a sham.
17. IO has also not made any public witnesses of the recovery of the alleged plastic cane containing liquor despite the fact that alleged spot was a public place. In this regard, the explanation of the prosecution witnesses was that none of the public persons agreed to join the investigation. The explanation given by the prosecution witness does not seem plausible because in the police report as well as the testimony of the prosecution witnesses, the names of the public persons, who were requested to join the investigation have not been mentioned. IO has also not taken any action against such public persons who did not tender help to the public servant despite they were being under an obligation to render help on the legitimate request of the public servant.
I have also relied upon citation Sadhu Singh versus State of Punjab, (1997) 3 Crimes 55 (PH) wherein it is held that:
"there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genius attempt having been made to join public witnesses. It is further held that a stereotype FIR No. 289/05 Page No. 8/13 statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness."
Keeping in view of the citation, I am of the considered view that prosecution has failed to show a genuine effort to make a public witness in regard of alleged recovery of case property from the possession of the accused.
18. There are other inconsistencies on the record which have not been explained. According to the deposition of prosecution witnesses, the case property was first seized and then rukka was prepared for registration of FIR. Thus, according to the witnesses FIR was registered after seizure of plastic cane. However, the seizure memo bears the FIR number. At the time of the seizure, FIR number was not available and therefore, FIR no. could not have figured on the seizure memo. The existence of FIR no. on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore, ante timed. This erodes the credibility of the witness who has stated that the seizure memo was prepared on the spot and before the registration of FIR.
In Lalji Shukla Vs. State (2000) 1 AD (Cr.) DHC, M.S.A. Siddiqui, J. of Delhi High Court observed as follows:
"4.....the prosecution has not offered an explanation whatsoever as to under what circumstances number of the FIR (Ex. PW6/B) FIR No. 289/05 Page No. 9/13 has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This give rise to two inferences that either the FIR (Ex PW6/B) was recorded prior to the alleged recovery of the contraband or number of the 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. That being so, the benefit arising out of such a situation must necessarily go to the appellant."
19. Also, no efforts whatsoever have been made by the prosecution to have clue about the source from where illicit liquor was arranged for by the accused. At least, some efforts must have been made by the police to interrogate the accused and conduct the requisite investigation to know as to from where the accused arranged the illicit liquor. It could be a result of either a hasty investigation or a shoddy investigation but in either case, the benefit should go to the accused.
20. There are other contradictions which creates doubts on the story of the prosecution. PW 1 Constable Devender in his cross examination stated FIR No. 289/05 Page No. 10/13 that he returned the seal to the IO on the same day whereas PW 4 (IO) in his cross-examination stated that he got the seal from Constable Devender on the next day. Therefore, possibility of tampering with the case property can not be ruled out. PW 1 in his cross-examination stated that he finally left the spot at about 11:00 pm whereas PW 2 in his cross-examination stated that he finally left the spot at about 12:00 am.
Keeping in view of the aforesaid fact, I am of the considered view that prosecution has failed to prove the guilt of the accused beyond reasonable doubt with regard to alleged recovery of plastic can containing illicit liquor.
21. To prove the offence of section 174 A IPC, prosecution has examined PW-5 and PE-6. PW-5 deposed that to execute the process U/s 82 Cr.P.C. he went to the residence of accused and executed the process U/s 82 Cr.P.C. and his detail report is Ex. CW-1/A. PW-6 HC Chote Lal arrested the accused vide memo Ex. PW-6/A and conducted his personal search vide memo Ex. PW-6/B being proclaimed offender and filed kalandra before the Court Ex. PW-6/C. Accused have also admitted his guilt for the offence U/s 174 A IPC voluntarily during the trial. Thus, considering the admission of the accused and from the testimony of PW-5, it is proved that accused was declared proclaimed offender and thereby committed an offence U/s 174 A IPC.
22. In view of the above discussion I hold that the accused is not found guilty of the charge framed against him for offence under section 61 Excise Act and he is acquitted of the charge under section 61-1-14 Excise FIR No. 289/05 Page No. 11/13 Act framed against him. So far as, the liability of the accused for the offence punishable U/s 174 A, I convict the accused for the offence punishable U/s 174 A IPC considering his plea of guilt and considering the fact that accused has failed to prove that he was never residing at the address at which process under section 82 Code of Criminal Procedure executed. Put up for order on sentence.
ANNOUNCED IN THE OPEN (MUNEESH GARG)
COURT ON 15.10.12 METROPOLITAN MAGISTRATE
KARKARDOOMA COURTS,
DELHI
FIR No. 289/05 Page No. 12/13
ORDER ON SENTENCE
Heard on point of sentence, the counsel for the convict submits that convict has family to maintain and he is 28 years old and is in JC since 26.02.12. So, lenient view be taken.
I heard both the parties. Keeping in view, the submission of counsel for the convict especially that the convict is of young age and has family to maintain and is in JC since 26.02.12 and acquitted for the main offence of i.e. Section 61 Excise Act, the ends of justice would be met if the convict is sentenced for the imprisonment of the period already undergone. Therefore, convict is sentenced for the imprisonment of the period already undergone. Superintendent, Tihar Jail is directed to release the convict, if not required in any other case.
Documents, if any, be released to the person entitled after cancellation of endorsement, if any. Case property be confiscated to State as per rules and same be destroyed.
Copy of the judgment and order of sentence be given immediately to the accused free of cost.
File be consigned to the Record Room after due compliance.
Announced in the Open Court on dated 15.10.2012. This judgment contains 13 pages and each paper is signed by me.
(MUNEESH GARG) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI 15.10.2012 FIR No. 289/05 Page No. 13/13