Delhi District Court
State vs . Saidar Ali on 19 July, 2011
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IN THE COURT OF SHRI PURSHOTAM PATHAK
METROPOLITAN MAGISTRATE : DELHI
Case ID No. 02401R6134932004
State Vs. Saidar Ali
FIR No. 458/03
PS : Patel Nagar
U/s 61/1/14 Excise Act
JUDGMENT
(a) Sr. No. of the case : 89/03
(b) Date of commission of offence : 30.09.2003
(c) Name of Complainant : Ct. Baljeet Singh
(d) Name of the accused : Saidar Ali
S/o Mohd. Suleman,
R/o B126, Shakar Pur,
Delhi.
(e) Offence complained of : 61/1/14 Excise Act
(f) Plea of accused : Pleaded not guilty
(g) Final Order : Acquitted
Date of Institution of Case : 16.02.2004
Judgment Reserved for : 19.07.2011
Date of Judgment : 19.07.2011
State Vs. Saidar Ali Page No. 1/6
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JUDGMENT
1. The brief facts of the case are that on 30.09.2003, the police official while patrolling duty saw accused Saidar Ali having one filled plastic bag on his head carrying illicit liquor without any permit or license and thus committed an offence U/S 61/1/14 of Excise Act .
2. After completion of investigation, chargesheet was filed. Accused was summoned and provision of section 207 Criminal Procedure Code was complied with.
3. The particulars of offence were explained to the accused in Hindi language and a charge for offence punishable U/s 61/114 Excise Act was framed against accused to which he pleaded not guilty and claimed trial and accordingly the case was fixed for prosecution evidence.
4. During the course of trial prosecution examined following three witnesses in support of its case.
5. PW 1 Ct. Baljeet Singh deposed that on 30.09.2003 while he was on patrolling duty, at about 10.30 AM, he saw accused Saidar Ali coming with one filled plastic bag on his head. On suspicion, he stopped him and on checking the said plastic bag, three gatta patties of liquor carrying quarter bottles were found. He asked 45 State Vs. Saidar Ali Page No. 2/6 -:3:- passersby to join the investigation but none joined by telling their genuine reasons. Form M29 was prepared. Case property was seized. Rukka was prepared and rukka was handed over to him for registration of FIR.
In his cross examination, he deposed that he did not personally ask any public person to join the investigation.
6. PW 2 Ct. Balwan Singh deposed that on 28.10.2003, HC Gobind handed over to him one sample to be deposited at Excise Laboratory, Vikas Bhawan. He deposited the same at Excise Laboratory. He stated that seal on the sample remained intact during his possession.
7. PW 3 HC Rajender Singh deposed that on 30.09.2003, on receiving DD No. 17B, he reached at the spot, where Ct. Baljeet met him and he handed over to him accused alongwith plastic katta containing illicit liquor. He asked 45 passersby to join the investigation but none joined by telling genuine reasons and without telling their names and addresses. Form M29 was filled. Case property was seized. Rukka was prepared and handed over to Ct. Baljeet for registration of FIR.
In his crossexamination, he admitted that place of occurrence was a busy place and public persons were coming and State Vs. Saidar Ali Page No. 3/6 -:4:- going from there and no notice in writing was given to public persons who refused to join the investigation.
8. Thereafter, prosecution evidence was closed and statement of accused was recorded. In his statement under Section 313 Criminal Procedure Code, the accused denied all incriminating evidence submitting that nothing was recovered from his possession. Despite opportunity, he did not opt to lead Defence Evidence.
9. I have heard Ld. APP for the State as well as Ld. Counsel for accused and have also gone through the file.
10. Final arguments heard.
11. Public witnesses were not joined in investigation though available. PW1 and PW3, both deposed in their examination that no public witnesses were joined in the investigation though available. And no legal action taken against those persons who refused to join the investigation. The testimony of official witnesses does not find any corroboration from any independent source. In my view the non joining of public witnesses is fatal to prosecution case particularly when no reasonable explanation has been given by prosecution for not joining public witnesses. In case titled as Roop Chand Vs. State of Haryana State Vs. Saidar Ali Page No. 4/6 -:5:- reported as CC cases 3(HC) it was held as that where police has failed to join independent witnesses in investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by police the explanation for police for not joining independent witness is an after thought and liable to be rejected.
In case of Hem Raj Vs. State of Haryana AIR 2005 SC 2110 it has been observed that :
The fact that no independent witness though available was examined and not even an explanation was sought to be given for not examining such witness is a serious informity in prosecution case amongst the independent witnesses one who was very much in number of things from beginning was not examined by prosecution. Non examination of independent witnesses by itself may not give rise to adverse inference against prosecution. However, when evidence of alleged eye witnesses raise serious doubts on the point of their presence at time of actual occurrence. The unexplained omission to examine the independent witnesses would assume significance.
12. There are other inconsistence on record which have not been explained. According to deposition of prosecution witnesses the case State Vs. Saidar Ali Page No. 5/6 -:6:- property was first seized and then rukka was prepared for registration of FIR. As HC Rajender Singh (PW 3) states that before preparing rukka, he prepared Form M29 and Seizure Memo.
13. Thus according to witnesses FIR was registered after preparation of Form M29 and seizure of illicit liquor. However, the Form M29 and seizure memo bears the FIR no. although at the time of preparation of Form M29 and Seizure memo, FIR no. was not available and therefore FIR no. could not have been on seizure memo. The existence of FIR no. on seizure memo suggest that seizure memo was prepared after the registration of FIR and is therefore anti timed. This erodes the credibility of witnesses who has stated that seizure memo was prepared on spot and before registration of FIR.
14. Thus, in view of the facts and circumstances and the discussion made hereinabove, I am of the considered view that prosecution has failed to prove its case against the accused beyond reasonable doubts. Hence, the accused is hereby acquitted in the present case.
Announced in the Open court (Purshotam Pathak)
th
on 19 Day of July 2011 MM07, Central, Delhi
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State Vs. Saidar Ali Page No. 7/6