Delhi District Court
State vs . Ravi Kumar on 5 May, 2015
IN THE COURT OF SH. PANKAJ ARORA, MM01, WEST DISTRICT, TIS HAZARI
COURT, DELHI
STATE Vs. RAVI KUMAR
FIR No. 36/10
PS: PUNJABI BAGH
U/S: 61 PUNJAB EX. ACT.
ID No. : 02401R0146852010
Date of commission of offence : 06.02.2010
Date of institution of the case : 12.03.2010
Name of the complainant : HC Mahender Singh
Name of accused and address : Ravi Kumar S/o Sh. Tilak Raj R/o B323,
Madipur, J.J. Colony, New Delhi.
Offence complained of or proved : U/s 61 Punjab Excise Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 05.05.2015.
J U D G M E N T
1 The case of the prosecution in brief is that on 06.02.2010 at about 9.30 p.m. at Ring Road TPT Centre Side before Circle of Punjabi Bagh, accused was found in possession of a Raxine Bagh containing 84 half bottles of illicit liquors without any permit or license which was in contravention of Notification issued by Delhi Administration. FIR was registered. After completion of necessary formalities, charge sheet was filed. Cognizance of the offence was taken. Accused was summoned.
State Vs. Ravi Kumar Page No. 1 of 12 2 Prima facie case U/s 61 Punjab Excise Act was found to be made out against the accused. Accordingly, charge was framed against the accused persons, to which he pleaded not guilty and claimed trial.
3 The prosecution examined 8 witnesses in support of its case, which are as follows:
1) HC Mahender Prakash was examined as PW1. He deposed that on 06.02.2010, he was posted in EIB Delhi Excise Department. He further deposed that on that day, after receiving secret information regarding transportation of illicit liquor, he reached at the spot i.e. near Punjabi Bagh flyover along with Ct. Ranbir and Ct. Om Singh at about 9.30 p.m. along with secret informer also, where they saw accused Ravi was coming from Britania Chowk side on a scooter bearing Regn. NO. DL3ST1368 and he was having a bag in the color of blue and red on the foot board of said scooter. He further deposed that then on the identification of secret informer, he overpowered accused along with scooter with the help of staff members. He fuhrer deposed that he checked said bag and recovered 72 half bottles of metro desi sharab and 12 half bottles metro desi sharab was also recovered from the dickey of said scooter during search. He further deposed that the informed to PS Punjabi Bagh regarding said recovery, telelphonically and HC Subhash and Jagir came at the spot. He further deposed that he handed over accused to HC Subhash along with recovered case property. He further deposed that he gave a written complaint to HC Subhash regarding said recovery which is Ex. PW1/A. He further deposed that then HC Head Constable Subhash took out two half bottles for the purpose of sample and rest case property put back into the said bag. He further deposed that case property and sample were sealed with the seal of SK. He further deposed that IO also prepared Form M29 at the spot. He further deposed that after use, seal was handed over to HC Jagir.
He further deposed that he took entire case property into police possession vide respective seizure memo which are Ex. PW1/B and C. He further deposed that IO prepared rukka and State Vs. Ravi Kumar Page No. 2 of 12 handed over to HC Jabir for registration of FIR who took same to PS and got FIR registered and came back at the spot along with copy of FIR and original rukka and same was handed over to IO. He further deposed that IO prepared site plan at his instance. He further deposed that IO arrested accused vide arrest memo which is Ex. PW1/D. He further deposed that IO recorded his supplementary statement and statements of other witnesses. He further deposed that accused was released on bail and case property deposited in malkhana. The witness has correctly identified the case property which are Ex. P1 & P2. During his crossexamination, he took a mobile from a passersby to inform the PS regarding apprehension of the accused. He further stated that he could not give the name of that person and his mobile number. He further stated that he could not give his approximate age who was going on foot. He further deposed that he was not joining the raiding party as he refused to be witness. He admitted the suggestion that no action was taken against him for refusing to help the police nor any notice was served on him. He further admitted the suggestion that out of seven seal impressions three are broken and illegible.
2) ASI Jabir Singh was examined as PW2. He deposed that on 06.02.2010, he was posted at PS Punjabi Bagh as a HC. He further deposed that he along with HC Subhash were on patrolling duty at Transport Centre, Punjabi Bagh. He further deposed that at about 9.30/9.40 p.m., HC Subhash received a telephone call from PS Punjabi Bagh regarding recovery of illicit liquor beneath flyover of Punjabi Bagh roundabout. He further deposed that they reached at the spot and found that HC Mahender along with two other constables had apprehended one person with illicit liquor along with a scooter bearing registration no. DL3ST1368. The witness has correctly identified the accused in the Court that day. He further deposed hat IO HC Subhash checked the scooter which was found to contain 12 half bottles of Metro Masaledar Desi Sharab in the front dickey of the said scooter and 72 half bottles in a blue color State Vs. Ravi Kumar Page No. 3 of 12 bag which was kept on the foot rest of the said scooter. He further deposed that thereafter, took out 2 half bottles as samples from said liquor and sealed with the seal of SK. He further deposed that the remaining liquor was sealed in the bag recovered from the accused with seal of SK. He further deposed that seal after use was handed over to him. He further deposed that IO prepared seizure memo of liquor as Ex. PW1/B and scooter as Ex. PW1/C. He further deposed that Form M29 and rukkas prepared and he was sent to PS for registration of FIR. He further deposed that he got the FIR registered and came back at the spot and handed over the copy of FIR and original rukka to IO. He further deposed that IO prepared site plan at the instance of HC Mahender. He further deposed that accused was interrogated and arrested vide memo Ex. PW1/D. He further deposed that accused was personally searched vide memo as Ex. PW2/A. He further deposed that accused was released on bail at the spot. The witness was crossexamined but nothing material came out in his crossexamination.
3) Ct. Om Singh was examined as PW3. He deposed that on 06.02.2010, he was posted at EIB, Delhi Excise Department. He further deposed that after receiving, secret information regarding transportation of illicit liquor. He further deposed that he reached at e spot i.e. Punjabi Bagh Flyover, along with HC Mahender Prakash and Ct. Ranbir and secret informer at about 7.30 p.m. he further deposed that after sometime, they saw a scooter bearing registration no. DL3ST1368, came from Bretania Chowk side and same was being driven by accused Ravi and he was having a bag in the color of blue and red on the foot board of said scooter. He further deposed that on the identification of secret informer,m they overpowered him along with scooter. He further deposed that they checked the scooter and recovered 72 half bottles of metro desi sharab from said bag and 12 half bottles of above said description from the dickey of the said scooter. He further deposed that HC Mahnender Praksh informed to the PS regarding the said recovery, telephonically. He further deposed that HC Subhash came at the spot along State Vs. Ravi Kumar Page No. 4 of 12 with the Ct. Jagir Singh. He further deposed that HC Mahender Prakash handed over the accused to the IO and recovered liquor and alleged scooter. He further deposed that HC Mahender Prakash also handed over the written complaint to the IO. He further deposed that IO took out two half bottles from the bag and rest case property put back into the said bag. He further deposed that case property was sealed with the seal of SK. He further deposed that IO also filled Form M29at the spot. He further deposed after use, seal was handed over to Ct. Jagir Singh. He further deposed that IO took entire case property into police possession vide seizure memo which is already Ex. PW1/B. He further deposed that IO also seized the said scooter vide seizure which is already Ex. PW1/C. He further deposed that IO prepared the rukka and handed over to Ct. Jagir Singh for registration of FIR, who took the same to the PS and got FIR registered and case back at the spot along with copy of FIR and original and handed over to IO. He further deposed that IO prepared site plan at the instance of HC Mahender Prakash. He further deposed that IO arrested the accused vide arrest memo which is Ex. PW1/D. He further deposed that IO recorded my statement. During his crossexamination, he stated that the traffic was on and people were coming and going. He further stated that none from the passerby stopped at the spot.
4) HC Bhagwan Shahi was examined as PW4 who identified the entry in register no. 19 which is Ex. PW4/A. The witness was crossexamined but nothing material came out in his crossexamination.
5) HC Subhash Kumar was examined as PW5. He deposed that On 06.02.2010, he was posted at PS Punjabi Bagh as HC. He further deposed that on that day, he received the information from PS that a person has been apprehended with illicit liquor in his possession at Ring Road at TPT Centre Side, by HC Mahender, EIB. He further deposed that he along with HC Jagir Singh went to the said spot where he met HC Mahender. He further deposed that HC State Vs. Ravi Kumar Page No. 5 of 12 Mahender handed over to him the custody of the accused. He further deposed that he had also shown to him a Bajaj twowheeler Chetak Scooter bearing registration no. DL3ST1368. He further deposed that he had also shown to him a cloth bag of red and blue color on checking which 72 halves of country made liquor with brand name Metro Masale Dar were recovered by him from the possession of the accused. He further deposed that from the dickey of the said scooter, 12 halves of country made liquor with brand name Metro Masale Dar were recovered by him from the possession of the accused.
He further deposed that HC Mahender gave written complaint which is already Ex. PW1/A and he on the basis of the same, prepared the rukka which is Ex. PW5/A. He further deposed that the illicit liquor was seized by him vide seizure memo which is already Ex. PW1/B. He further deposed that before seizure, two halves separately as sample. He further deposed that the rest of the half were put back into the cloth bag and mouth of the bag was closed with the help of cloth. He further deposed that the seal of SK was affixed on the cloth. He further deposed that seal after use was handed over by him to HC Jagir Singh. Form M29 which is Ex. PW5/B was duly filled up at the spot.
He further deposed that the scooter in question was seized by him vide seizure memo which is already Ex. PW1/C. He further deposed that the rukka was handed over to HC Jagir Singh with the direction to get the FIR registered at the PS. He further deposed that he thus, left the spot with rukka. He further deposed that in the meantime, at the instance of HC Mahender, the site plan was prepared which is Ex. PW5/C. He further deposed that HC Jagir Singh came back to the spot and handed over to him copy of FIR and original rukka.
He further deposed that interrogation was conducted from the accused. He further State Vs. Ravi Kumar Page No. 6 of 12 deposed that the accused was arrested by him vide arrest memo which is already Ex. PW1/D. He further deposed that personal search of the accused was conducted vide personal search memo which is already Ex. PW2/A. He further deposed that statement of the prosecution witness under Section 161 of Cr.P.C. was recorded by me at the spot. He further deposed that brother of the accused was called at the spot and the accused was released on the bail. He further deposed that the case property was deposited at the Mal Khana.
He further deposed that later on, the report was collected from Excise Office which is Ex. PW5/D. He further deposed that on the completion of investigation, the challan was prepared and filed in the Court on behalf of the SHO. During his crossexamination, he stated that he could not give the DD No. of his departure from PS and similar is his reply regarding his return to PS. He further stated that 45 passers were requested by him to join in investigation but they refused to join in investigation. He admitted the suggestion that no action was taken by him against them nor he recorded the gist of the inability shown by those persons to join in investigation.
6) HC Niyazuddin was examined as PW6. He deposed that on 11.02.2010, he was posted at PS Punjabi Bagh at constable. He further deposed that HC Subhash Kumar handed over to him sealed sample with the seal of SK for depositing in the excise office. He further deposed that he have obtained Road Certificate No. 12/21 in this regard from MHCM. He further deposed that he has deposited the sealed sample on the same day. He further deposed that the sample remained intact while it was in his custody. The witness was crossexamined but nothing material came out in his crossexamination.
7) HC Ranbir Singh was examined as PW7. He deposed that On 06.02.2010, he was posted as constable in excise department in Delhi and when he was patrolling at Punjabi Bagh flyover State Vs. Ravi Kumar Page No. 7 of 12 alongwith HC Mahender Singh and Ct. Om Singh, they received secret information that one person would come with the scooter. He further deposed that the secret informer was along with them at that time. He further deposed that on the pointing out of secret informer, they stopped one Bajaj Chetak scooter being driven by accused. He further deposed that one bag carried by the accused and the dickey of the Bajaj Chetak Scooter bearing reg. no. DL3 ST 1368 were checked and on checking of bag, 72 half bottles of illicit liquor bearing label of "Desi Metro" were found and on checking of dickey of scooter, 12 half bottles of illicit liquor bearing lable of "Desi Metro" were found. He further deposed that HC Mahender gave telephonic information regarding in the same to the PS. He further deposed that after about 1015 minutes, HC Jahangir came at the spot. He further deposed that illicit liquor were taken into police possession by HC Jahangir vide seizure memo Ex. PW1/C. He further deposed that the accused was arrested vide memo Ex. PW1/D. He further deposed that thereafter, rukka was prepared by HC Subhash and the same was sent through some constable to PS for registration of FIR. The witness was crossexamined but nothing material came out in his crossexamination.
8) PW8 HC Satbir Singh is the duty officer who identified & registered FIR No. 36/10 which is Ex. PW8/A & endorsement on the rukka which is Ex. PW8/B. The witness was not crossexamined despite having given the opportunity.
4 Statement of accused persons U/s 313 of Cr.P.C. was recorded, in which all the incriminating evidence were put to the accused. Accused stated that he did not commit any crime. Accused further stated that he has been falsely implicated in the present case and he was innocent. Accused opted not to lead any evidence in defence. 5 This Court has heard the arguments and perused the record.
It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of State Vs. Ravi Kumar Page No. 8 of 12 Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "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." As per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced 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 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. The relevant entries regarding the arrival and departure of the police official has not been proved on record as the DD Writer was not examined and no explanation is given as to why DD Writer is not made the witness in the present case.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s 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 reservations. 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 entries creates a reasonable doubt in the prosecution version and attributes State Vs. Ravi Kumar Page No. 9 of 12 oblique motive on the part of the prosecution."
In the present case, the above said provision appears to have not been complied with by prosecution.
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 join the 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 Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: "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 names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the 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 he witnesses from the public had refused to 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 State Vs. Ravi Kumar Page No. 10 of 12 public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
It has been held by Hon'ble High Court of Delhi in Ramesh Prakash Vs. State 1999 VI AD (DELHI) 536 that, "the number of the FIR (Ex PW3/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly, indicates that these documents were prepared at the same time. The prosecution has not received any explanation whatsoever as to under what circumstances number of the FIR (Ex. PW3/B) had appeared on the top of the aforesaid documents.
This gives rise to two inferences that either the FIR (Ex. PW3/B) was registered prior to the receipt of the secret information and alleged recovery of the contraband or number of the FIR was inserted in these document after its registration. In both the situations, is seriously reflect upon the veracity of the prosecution version given by Vijay (PW5), Inspector O.P. Sharma (PW6), SI Sehdev (PW7) and SI Brijdender (PW8) and creates a good deal of doubt aboutrecovery of the contraband in the manner alleged by the prosecution. Thus the benefit arising out of such a situation must necessarily go to the appellant".
6 It is observed that the case property was not intact when it was produced for the identification by the witness. PW1 HC Mahender Prakash admitted the suggestion that 3 seals were broken and illegible. It is clear from the record that public persons were available at the spot and police officials have not made sincere efforts to make them as witness in this case. It is apparent from the testimony of police official PW5 that 45 passersby were available at the spot. There is nothing on record if any written notice has been served to those passersby who refused to join the investigation. PW1 has also admitted that no action was taken against the passersby, from whose mobile phone information was sent to PS, for refusing to help the police. Further, it has come on record through the prosecution evidence that the IO has done State Vs. Ravi Kumar Page No. 11 of 12 the writing work at the spot. When the IO has done the writing work at the spot itself which must have taken them some time, they ought to have made some sincere efforts in joining the passersby as witnesses to the investigation which admittedly is not so in the present case. Thus, the parrot like narration of the facts by the prosecution witnesses cannot alone be said to be sufficient to arrive at the conclusion of guilt of accused. A grave doubt is also raised on the veracity of the testimony of prosecution witnesses on account of the apparent discrepancy in the documents Ex. PW1/B, Ex. PW1/C & Ex. PW5/B. Admittedly, as per the prosecution case the said documents were was prepared before registration of the FIR. When the FIR is yet to be registered, mentioning of the FIR number on the said documents without any explanation only leads to the conclusion that the said documents have not been prepared in the way and manner as asserted by the witness.
7 It is well settled that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful and the benefit of doubt certainly goes in favor of the accused. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused namely Ravi Kumar is hereby acquitted from the charges punishable U/s 61 Punjab Excise Act.
Announced in the open Court, On 5th, May, 2015.
(Pankaj Arora) MM01 (West)/Delhi 05.05.2015 State Vs. Ravi Kumar Page No. 12 of 12 FIR No. 36/10 PS: P. Bagh 05.05.2015 Present: Ld. APP for the State.
Accused namely Ravi Kumar in person.
Vide separate judgment dictated in the open court, the accused namely Ravi Kumar is hereby acquitted from the commission of offence punishable U/s 61 Punjab Excise Act.
Put up for furnishing the bail bond U/s 437A of Cr.P.C. by the accused on 11.05.2015.
(Pankaj Arora) MM01,West, THC, Delhi 05.05.2015 State Vs. Ravi Kumar Page No. 13 of 12