Delhi District Court
3.Title State vs . Anju on 15 December, 2012
THE COURT OF SH. SUNIL KUMAR SHARMA
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 36/08
2.Unique Case ID No. 02401R0056442009
3.Title State Vs. Anju
3(A).Name of complainant Ct. Rajender Singh, 1857/W, PS Khyala
3(B).Name of accused Anju w/o Sanjay r/o H.no. 79 (154 yards)
58 C Block, Raghubir Nagar, Delhi
4.Date of commission of offence 18.11.2008
5.Date of institution the challan 30.01.2009
6. Date of Reserving the judgment Pronounced on the same day
7.Date of hearing the final arguments 15.12.2012
8.Date of pronouncement 15.12.2012
9. Offence complained of Under Section 61 Punjab Excise Act, 1914
10. Offence charged with Under Section 61 Punjab Excise Act, 1914
11. Plea of the accused Pleaded not guilty
12. Final order Accused Acquitted U/s 61 Punjab Excise
Act,1914.
13. Date of receiving of judicial file in 25.09.2010 this court FIR no. 36/08 State v. Anju Page no. 1 of 7 BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The matrix of the prosecution case in a narrow compass is that on 18.11.2008 at about 5.25 PM from in front of H.no. 79, in a Gali S & J Block, Raghubir Nagar, New Delhi, within the jurisdiction of PS Khyala, the accused was found in possession of 22 card boxes containing 12 bottles each of 750 ml of Masti Malta Masaledar Sharab for sale in Haryana only without permit or license and thereby committed an offence punishable U/sec 61 of Punjab Excise Act, 1914.
2. Accordingly, the charge sheet was filed, before this Court, and copies of the same along with relevant documents were supplied to the accused in compliance of section 207 Cr. PC and on the basis of the material on record, charge u/s 61 Excise Act was framed against the accused on 17.09.2010, to which the accused pleaded not guilty and claimed the trial.
3. Prosecution in order to prove its case against the accused in total examined as many as six witnesses namely :
1. PW1 Ct. Shailesh Kumar, Investigating witness.
2. PW2 Ct. Rajender, Investigating witness.
3. PW3 HC Netra Pal, MHC(M).
4. PW4 HC Jawahar Lal, Investigating Officer.
5. PW5 Retd. SI Layak Ram, Duty Officer.
6. PW6 Ct. Anil, Sample witness.
4. No other Prosecution Witness was examined. Prosecution Evidence was closed and statement of the accused was recorded on 15.12.2012 wherein the accused stated that she has been falsely implicated and that nothing incriminating was recovered FIR no. 36/08 State v. Anju Page no. 2 of 7 from her possession. However, accused declined to lead evidence in her defence.
5. I have heard the Ld. APP for the state, Ld. counsel for the accused and perused the entire material available on record.
6. It is a cardinal principle of the criminal law that "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".
7. As per the case of the prosecution the seizure memo Ex. PW1/A was prepared prior to the preparation of rukka / tehrir. However, a bare perusal of the same would show that the same has contained the FIR number. The prosecution has failed to explain as to how the FIR no. is mentioned on the said document despite its preparation prior to the registration of the FIR.
8. PW2 Ct. Rajender the witness of the investigation has admitted in his cross examination that the seizure memo was prepared from top to bottom by the IO at one time and in one go. The same shows the serious infirmity in the prosecution case as the number of the FIR was known to the IO prior to its registration. The same creates a reasonable doubt in the story of the prosecution. The reliance is placed on the judgments of Giriraj v. State 83 (2000) DLT 2001, Mohd. Hasi v. State 2000 Cri.L.J. 1510, Pawan Kumar v. Delhi Administration 1987 CCC 585 and Mewa Ram v. State 2000 Cri.L.J. 114.
9. The prosecution case shows that the seal after use was handed over to Ct. Rajender and the case property was seized vide seizure memo Ex. PW1/A. The same was not given to any independent public person. In the course of the deposition of the FIR no. 36/08 State v. Anju Page no. 3 of 7 PW1 it is observed by the court that the seal of some of the sacks is not legible and few sacks found containing one or two empty bottle each. The same also creates reasonable doubt in the story of the prosecution. The reliance is placed on the judgment of Ramji Singh v. State of Haryana 2007 (3) RCR (Criminal 452) , Rajesh Jagdamba Avasthi v. State of Goa (2005) 9SCC 773.
10. Here I would like to refer to chapter 22 Rule 49 of Punjab Police Rules, 1934 which provides 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 the 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 personality by signature or seal. Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
11. In the present case, the above said provision has not been complied with by prosecution as no DD entry of PW1 Ct. Sailesh and PW2 Ct. Rajender have been produced or proved as required under the law. In my opinion prosecution was under
an obligation to prove on record, the above said DDs entry vide which police officials have left the PS for giving their duty so as to inspire the confidence regarding availability of PW1 Ct. Sailesh and PW2 Ct. Rajender at the place of recovery of illicit liquor from possession of the accused.
FIR no. 36/08 State v. Anju Page no. 4 of 7 At this juncture, it would be also appropriate to refer a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has 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 reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with, then it can at least be said that it was so done with an oblique motive. The failure of the prosecution to bring on record the relevant DD entry , as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of of the police officials.
12. Further no independent public witness has been joined either during raid or during investigation despite opportunity. As per the case of the prosecution case the accused Anju was found in possession of 22 card boxes containing 12 bottles each of 750 ml each of the ilicit liquor in front of H.no. 79 in a Gali S & J Block, Raghubir Nagar, Delhi. The same is admittedly a public place having various residential houses and commercial shops in the vicinity. The PW2 Ct. Rajender in his cross examination had admitted that no written notice was given to the public persons for joining the investigation even the names and addresses of the requested persons were not recorded by them. The explanation given that certain public persons were requested but they refused does not appeal to common sense and does not appear plausible as even names and addresses of those requested have not been mentioned. It does not appeal to common sense that police officials even could not obtain the names and addresses of the persons requested. Admittedly no legal action has been taken against any of the persons who refused to join the raid. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In FIR no. 36/08 State v. Anju Page no. 5 of 7 ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
13. 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 CRLJ 0127 DEL wherein the court observed as under: ''Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the FIR no. 36/08 State v. Anju Page no. 6 of 7 accused.''
14. In view of the aforesaid findings, since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts, the only plausible findings which can be given against the accused is that of not guilty.
15. Accordingly, the accused Anju stands Acquitted for the offence punishable u/sec 61 Punjab Excise Act, 1914 in the present case.
16. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
17. File be consigned to records after due compliance.
Announced in the open (Sunil Kumar Sharma)
court on 15.12.2012 Metropolitan Magistrate
Delhi
It is certified that this judgment contains 7 (Seven) pages and each page bears my signature.
(Sunil Kumar Sharma)
Metropolitan Magistrate
THC, Delhi
FIR no. 36/08 State v. Anju Page no. 7 of 7
FIR 36/08
PS Khyala
U/sec 61 Punjab Excise Act
15.12.2012
Present : Ld. APP for the State
Accused in person with Ld. Counsel.
Statement of the accused recorded separately wherein it is submitted by the accused that she does not want to lead any evidence in her defence.
Final arguments heard today.
Vide separate judgment dictated and announced in the open court today, accused Anju stands acquitted for the offence punishable U/sec 61 Punjab Excise Act.
Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
File be consigned to records after due compliance.
(SUNIL KUMAR SHARMA) Metropolitan Magistrate/Delhi.
15.12.2012
FIR no. 36/08 State v. Anju Page no. 8 of 7