Delhi District Court
State vs . Santosh on 6 April, 2011
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IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Santosh
FIR No. 94/02
PS: Keshav Puram
U/s 61/1/14 Ex. Act
Case ID No. 24004RO515492002
JUDGEMENT
A) Sl. No. of the case : 22/03
B) The date of commission : 21.03.02
of offence
C) The name of the complainant : Ct. Rajnish Kumar
PS Keshav Puram, Delhi
D) The name & address of accused : Smt. Santosh
w/o Late Madan
r/o Jhuggi No. N86/192, Indl.Area
Railway Line, Lawrence Road,
Delhi.
E) Offence complained of : U/s 61 of Punjab Excise
Act, 1914
F) The plea of accused : Pleaded not guilty
G) Final order : Acquitted
H) The date of such order : 06.04.2011
FIR No. 94/02 Page No.1/10
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Date of Institution : 07.06.2002
Judgment reserved on : 06.04.2011
Judgment announced on: 06.04.2011
THE BRIEF REASONS FOR THE JUDGEMENT:
1. Briefly stated the case of the prosecution is that on 21.03.2002 at about 5.58 pm at Railway Line, Opposite Jhuggi No. N86/101, Lawrence Road, Industrial Area, Delhi, accused Santosh was found in possession of 47 pouches of country made liquor without any permit or license & in contravention of Delhi Administration notification and thus she thereby committed an offence punishable U/s 61/1/14 Excise Act.
2. After completion of investigation, charge sheet U/s 61/1/14 of Punjab Excise Act was prepared against the accused and filed in the Court.
3. After complying with the provisions of Sec. 207 Cr.P.C., arguments on charge were heard and vide order dated 29.07.06, charge was framed U/s 61/1/14 of EX. Act against the accused to which she pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has examined one witness i.e PW1 HC Rajneesh till 06.04.2011.
5. The seal on the plastic cane and plastic katta which are the case property when FIR No. 94/02 Page No.2/10 3 produced before the Court today, are found broken and said plastic katta was found containing empty pouches of Sofi Sikander country made liquor. Although, MHC(M) has produced copy of DD No. 17B dt. 06.04.11 in this regard but it is not clear as to under what circumstances and how, the seal on the said plastic cane got broken and how the contents of the said cane got leaked. Hence, no useful purpose would have been served in examining other witnesses by continuing with the further trial as doubt has already been created in the prosecution story benefit of which must go to the accused. Consequently, PE has been closed.
6. Since there was no incriminating evidence against the accused, her statement under section 313 r/w section 281 Cr.P.C has been dispensed with.
7. I have heard the arguments of Ld. A.P.P for state and accused in person. I have also perused the record carefully.
8. PW1 HC Rajneesh deposed that he was on patrolling duty on 21.03.02 and when he reached near Railway Phatak, Lawrence Road, at about 5.55 pm, he saw one lady was sitting on a cot near Jhuggi No. N86, one plastic katta was also kept near her. On seeing him she stood up and started moving with plastic katta. On suspicion, she was apprehended. The plastic katta was checked adn it was containing pouches of liquor. He gave information to PS Keshav Puram. After sometime, HC Ajay Pal Singh reached at the spot and checked the plastic katta. He requested 34 passers by to join the investigation but all of them refused to join the investigation. He counted the pouches of liquor. There were 47 pouches of Sofi Sikandar country made liquor. On the direction of IO, he arranged one plastic cane, one bottle FIR No. 94/02 Page No.3/10 4 and one bucket from scrap dealer. The liquor of pouches were poured into bucket and then into the cane. One bottle was taken as sample. Empty pouches were kept in the same plastic katta. IO filled up form M29 at the spot. Lid of sample bottle, plastic katta containing empty pouches and cane were sealed with the seal of APS. The said articles were taken into police possession vide memo Ex.PW1/A. This statement was recorded by IO vide Ex.PW1/B. Thereafter IO prepared the rukka and the FIR was got registered through him. After registration of FIR, he returned back at the spot alongwith lady Ct. Mamta and handed over copy of FIR and original rukka to IO. IO prepared site plan at his instance. Accused was arrested and her personal search was conducted by Lady Ct. Mamta. In his cross examination, witness has deposed that he made departure entry at 5.00 pm. He was patrolling on foot on that day. He admitted that Jhuggi No. N86 is near the railway line and there were about 100150 jhuggies situated in that area. He also admitted that public persons were present at the time of recovery. He further deposed that he had brought the articles for measuring the liquor from scrap dealer. IO did not serve any notice upon those public persons who refused to join the investigation.
9. As per story of prosecution, after the alleged recovery of "plastic katta" containing pouches of liquor, IO HC Ajay Pal Singh had asked 34 passersby to join the investigation but none agreed and left the spot without telling their names and addresses. At least in the facts and circumstances of the case, in my opinion, IO HC Ajay Pal Singh could very well have served the passersby with notice in writing to join the police proceedings as there was no possibility of accused escaping his arrest or crime going undetected because by the said time, accused stood already apprehended. The above referred mechanical excuse given by FIR No. 94/02 Page No.4/10 5 the prosecution for not joining the public witnesses in the police proceedings/ investigation creates a reasonable doubt in the prosecution version. It is pertinent to note that IO HC Ajay Pal Singh has not made a note of the excuses given by the above said passersby for not joining the police proceedings. Also there is no explanation from the side of IO as to why he did not record the excuses given by the passersby who were requested to join the police proceedings. At this juncture, it would be pertinent to refer to some case laws.
In a case law reported as Anoop Joshi v/s State,1992 (2) C.C. Cases 314(HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to joint he raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
In a case law reported as Roop Chand v/s The State of Haryana, FIR No. 94/02 Page No.5/10 6 1999(1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:
3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the petitioner witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the name and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the FIR No. 94/02 Page No.6/10 7 public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
In case law reported as Sadhu Singh v/s State of Punjab, 1997(3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:
5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution FIR No. 94/02 Page No.7/10 8 version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version.
As such it could be said that IO did not make sincere efforts to join public witnesses before starting initial investigation of the present case and this failure on the part of the IO in view of above said case laws creates a very serious doubt in the prosecution version.
10. The case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence tampering with the case property cannot be ruled out as the seal remained all along with the police officials.
11. The police official who searched and allegedly recovered the case property from the accused did not offer his search to be conducted prior to search of the accused. In the FIR No. 94/02 Page No.8/10 9 present case, before taking the formal /personal search of the accused, IO HC Ajay Pal Singh had made no efforts whatsoever to ensure that search of the accused by him is witnessed by an independent public witness, although the same was very much available at the place of apprehension of the accused as the facts of this case suggest.
12. Relevant notification which may have shown as to what was the permissible quantity for possession of liquor at relevant point of time, has not been produced by prosecution. Even it is not clear as to by what quantity possession of liquor with accused exceeded permissible limits.
Further in a case law reported as State of Himachal Pradesh v/s Dharam Dass, 1992(1) C.L.R, it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
In Thakorbhi Viribhai Vasava & others v/s The State of Gujrat Crime, Vol (1) 1987/37 Gujrat High Court (D.B), it has been ruled down that in criminal trials even a slightest doubt raised in favour of accused ordinarily entitle the accused to get acquittal.
13. As per the case of the prosecution, the case property was sealed with the seal of APS belonging to IO HC Ajay Pal Singh. However, admittedly, neither any handing over memo nor returning memo of the seal was prepared by I.O. Thus, tampering may not be ruled out as FIR No. 94/02 Page No.9/10 10 sealed case property and accused were with the police officials till the time case property was deposited in Malkhana. Moreover, the case property when produced before the Court during testimony of PW1 was found to be unsealed condition and cane was empty for which no plausible explanation has been furnished by the prosecution.
14. In this case, the police has not complied with the provisions of standing order no. 82 regarding the time frame within which the charge sheet must have been filed by the concerned SHO. Accused was arrested on 21.03.02 and charge sheet was filed on 07.06.02. As per the standing order no. 82, it is the responsibility of the SHO concerned to see that in case like the present one since investigation was completed within 24 hours. Therefore the charge sheet should have been submitted immediately thereafter. In this case there is inordinate delay in filing the charge sheet.
15. The chain of evidence against accused is not complete.
16. In view of aforesaid discussion, accused Santosh is acquitted of the charge U/s 61/1/14 Excise Act giving her benefit of doubt. Her bail bonds if any stands cancelled. Case property be confiscated to the State. File be consigned to record room.
Announced in open Court (VIDYA PRAKASH) Dated: 06.04.11. Addl. Chief Metropolitan Magistrate1 Rohini, Delhi.
FIR No. 94/02 Page No.10/10