Delhi District Court
In Re: State vs Ram Niwas Etc on 17 February, 2010
IN THE COURT OF SHRI GAURAV RAO: METROPOLITAN
MAGISTRATE: DELHI
In Re: STATE VERSUS RAM NIWAS ETC
F.I.R. No: 824/99
U/s 61/1/14 Punjab Excise
Act
P.S. Nangloi
Date of Institution of Case : 27.04.2000
Date of Judgment Reserved for: 17.02.2010
Date of Judgment : 17.02.2010
JUDGEMENT:
(a) The serial no. of the case : 2442/2/08
(b) The date of commission of offence : 11.08.1999
(c) The name of complainant : HC Arun Kumar
(d) The name, parentage, : Ram Niwas, S/o Hukam
of accused Chand, R/o Village Bakkarwals Nangloi, Delhi 2, 2.
Surender Kumar, S/o Jagdish
Chand, R/o Village
Bakkarwala, Nangloi, Delhi.
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 : Both accused persons
acquitted
(h) The date of such order : 17.02.2010
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 11.08.1999 at about 9.05 PM at main Rohtak road ganda nala pull, DTC Deopt, Nangloi, Delhi within the jurisdiction of police station Nangloi accused Ram Niwas and Surender Kumar were found in possession of 4 plastic kattas containing 200 pouches each of illicit liquor and two peties containing 48 quarter bottles each of illicit liquor without any permit or licence, which they were carrying on Maruti car bearing no. DL-2CD-2204 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 vide order dated 06.06.2001, charge u/s 61/1/14 Punjab Excise Act was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined four witnesses, whereafter the PE in the matter was closed and the statement of accused persons u/s 313 Cr.P.C was recorded on 24.05.2006 wherein they claimed themselves to be innocent having been falsely implicated in the case.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 DO HC Jagmer Singh deposed that on 11.08.1999 at about 11.10 pm he registered the case FIR no. 824/99 as Ex. PW1/A and after registration of the case he handed over the copy of FIR and original rukka to Ct. Bhupender.
5. PW2 Ct. Ishwar Singh deposed that on 18.08.1999 on the instruction of IO, he took sample bottle duly sealed with the seal of AK, form 29 from the MHCM and deposited the same in Excise Lab vide RC no. 297/21/99. After depositing the same, receipt was handed over to the MHC(M). He further deposed that the sample was not tampered during the period it remained in his possession.
6. PW3 Ct. Bhupinder deposed that on 11.08.1999 while he was posted at PS Nangloi, he along with HC Arun Kumar were on patrolling duty near Ganda Nala, DTC Depot and they received secret information that one Maruti car bearing no. DL-2CD-2204 of white colour would be coming from the side of Bahadurgarh with heavy quantity of liquor. He further deposed that on this information, HC Arun Kumar asked 4-5 public persons to join the investigation but none agreed. HC Arun Kumar prepared the raiding party along with him and the secret informer, they held nakabandi on the puliya pull and started checking the vehicles which were coming from the side of Bahadurgarh. At about 9.05 pm one Maruti car came from the side of Bahadurgarh. On the instance of secret informer, they stopped the above said car which was being driven by Surender (correctly identified) and accused Ram Niwas was sitting on the back seat of the car. They checked the maruti car and found 4 plastic bags containing liquor pouches between the back and front seat of the car and two cartoon boxes were found on the back seat of the car. They checked the plastic katta on the puliya and found 200 pouches liquor each labeled with "Angori Desi Masaledar Sharab" in both the cartoons boxes and found 48 quarter bottles each labeled with "Champion Fine Whisky". IO separated two pouches each as sample from all four kattas and two quarter bottles each from both the paties. The pouches were kept in the plastic box and both sealed with the seal of AK and remaining liquor pouches and quarter bottles were put in their respective boxes and kattas and all sealed with the seal of AK. He filed form M-29 at the spot and seal after use was handed over to him and case property along with car were taken into possession vide seizure memo Ex.PW3/A. He deposed that IO prepared rukka and handed over to him which he took to PS and got registered the case FIR and he came back along with original rukka and copy of FIR and handed over to the IO. IO arrested both the accused persons and prepared their personal search vide memo Ex. PW 3/B and Ex.PW3/C. IO recorded his statement. Thereafter, they came back to the PS and case property was deposited in malkhana. This witness further identified the case property as Ex.P1 to P6 (collectively).
In his cross examination he stated that the secret information was received at about 8.45 pm by HC Arun Kumar but he was not aware who gave the information about the maruti car. He stated that at the time of receiving information they were standing at Ganda Nala near DTC Depot Nangloi, Delhi and only he and HC Arun Kumar were present at that time. He stated that they had put down no barricades as soon as they received the information. He stated that at the time of checking he and HC Arun Kumar along with informer were present. He stated that when they stopped the maruti car, HC Arun Kumar had checked the vehicle from inside. He stated that he had checked the goods when they were taken out from the car. He stated that there were 4 bags (kattas) and two cartoons boxes which were taken out from the car. He stated that they counted the pouches at the spot and IO sealed the case property at the spot. He stated that seizure memo was prepared by the IO before sending the rukka. He stated that accused persons failed to produce any receipt of the seized liquor. He stated that IO interrogated the accused at the spot. He stated that after completing the whole proceedings all went to PS and FIR was lodged. He stated that at the time of incident, no public witness was present only vehicles was moving due to night. He denied the suggestion that no liquor was found in maruti car bearing no. DL-2CD-2204. He further denied the suggestion that accused persons were not coming in car bearing no. DL-2CD-2204 and they were arrested on 11.08.1999 and falsely implicated in this case.
7. PW 4 HC Arun Kumar deposed on the same line as deposed by PW 3. In addition to this, he deposed that he prepared the rukka vide Ex.PW4/B and the site plan vide Ex.PW4/C. He deposed that the personal search of the accused persons were conducted vide Ex.PW3/B and Ex.PW3/C and they were released on bail vide Ex.PW4/D and Ex.PW4/E respectively. Thereafter, he sent the sample to excise office through Ct. Ishwar Singh vide RC no. 297/21 and challan was prepared and sent to the court.
In his cross examination he stated that on 11.08.1999 while he was on patrolling duty at Udhyog Nagar to Ganda Nala he received the information at about 8.55 pm. He stated that accused persons reached at the spot at about 9.05 pm and when the accused persons were arrested they were three other persons present at that time. He stated that no written notice was served to passerby who refused to join the investigation. He stated that they prepared the raiding party near ganda nala wall. He stated that accused Surender was driving the vehicle at that time. He stated that it took about 1-hour to 45 minutes in completing the written work. He stated that accused was released on bail. He stated that the car in which the liquor was found was a white colour maruti car. He stated that they reached along with the accused at PS at about 11.00 pm. He stated that at the time of recovery they did not join any public person as a witness. He stated that the spot was not crowded. He stated that Ct. Bhupinder went along with rukka at about 10.00 pm and came back at about 10.30 pm. He denied the suggestion that nothing was recovered from the accused and he has been falsely implicated in this case and he was deposing falsely.
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. 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 then the explanation furnished by the prosecution that they refused to join the investigation 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, 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. In the present case admittedly the place of alleged recovery of the illicit liquor was a populated area/public persons were present however, none from the public could be joined by the police official during the alleged raid and seizure. In fact, PWs admitted in their cross examination that IO did not ask any public person to join the raid. No action was taken/no notice was served those who refused to join the investigation and even their names were not noted down and the explanation as furnished by the police officials is unreliable. 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.
14. 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 1998 (1) CCC 497(DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused.
15. In the present case, the MHC(M) was not examined by the pro- secution. He was an important witness who could have proved the factum of deposit of case property which could have lend some credence to the prosecution story. Perusal of the register no. 19 reveals that signatures of the person who took the sample to excise office was not obtained at Sl. No.
7. All this shows the lackadaisical manner/shoddy manner in which the en- tire investigation was carried on by the police officials. The entire proced- ure of recovery, deposit of same in Malkhanna and preservation of the case property was done in such a casual manner that it showed utter dis- regard to the establish procedure of investigation and thereby rendering the trial futile. When the case property was produced in the court the seal was found to be broken. 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.
16. In the present case, HC Arun Kumar himself remain the IO and he did not call any other police official from the PS to conduct the investiga- tion. I find no justification for the same. Further, the prosecution story does not inspire confidence as it seems highly improbable that while on patrolling duty a police official would be carrying along with him seal, cloth for pullanda which otherwise are usually carried on by the IO only in his bag while on investigation.
17. 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 material 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''.
18. 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.
19. 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.
20. 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 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.
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 Ram Niwas and Surender 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.
22. File be consigned to Record Room as per rules and procedure.
Announced in the open (Gaurav Rao) Court on 17.02.2010 MM (West)/Delhi. 17.02.2010 F.I.R. No: 824/99 U/s 61/1/14 Punjab Excise Act P.S. Nangloi Pr: Ld. APP for state. Both accused are present on bail.
Final arguments heard. Put up for Judgment at 4:00 p.m. At 4:00 p.m. Vide my separate judgment the accused persons have been acquitted for the charges in the present matter.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents if any be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao) MM (W)/Delhi.
17.02.20 10