Delhi District Court
State vs . : Ram Singh on 22 February, 2013
IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS NEW DELHI State Vs. : Ram Singh FIR No. : 304/11 U/s : 33 of Delhi Excise Act PS : Okhla Industrial Area Date of Institution: 31.01.2012 Date of Judgment reserved for: 22.02.2013 Date of Judgment: 22.02.2013 Brief details of the case A. Sl. no. of the case 79/2/12 B. Offence complained of u/s. 33 of Delhi Excise Act or proved C. Date of Offence 06.10.2011 D. Name of the complainant SI Shabbir Ahmed No2529 PSOkhla Industrial Area, New Delhi E. Name of the accused Ram Singh S/o Jagdish R/o Jhuggi No. B105,Indra Kalyan Vihar, OIA, New Delhi.
F. Plea of the accused Pleaded not guilty
G. Final order Acquitted
H. Date of Order 22.02.2013
Judgment
The case of the prosecution is that on 16.10.2011, at around 6.50 P.M, at the street in front of Jhuggi no. B165, Indra Kalyan Vihar, State Vs Ram Singh FIR No. 304/11 1/12 OIA PhaseI New Delhi, within the jurisdiction of PSOkhla Industrial Area, accused Ram Singh was found in possession of 30 cartoons containing 1476 quarter bottles of illicit liquor. He was not possessing any permit or licence for possessing liquor which was recovered from him.
Brief facts as unfolded during the trial
2. On the above said date, ASI Bijender Singh (PW1) was on patrolling duty in the area of Division III, OIA. During the course of patrolling duty, at around 6.30 pm, a secret informer met him near the main gate of Primary School, Indra kalyan Vihar, OIA, PhaseI and informed him that large quantity of illicit liquor is about to be unloaded in front of Jhuggi No.B105 near Shiv Mandir, Indra Kalyan vihar camp. ASI Bijender Singh summoned HC Lala Ram (PW2) and Ct. Ombir and formed a raiding party. 34 passers by were requested to join the investigation but they did not agree and left the spot without disclosing their names and addresses. In the meantime Ct. Ramesh and Ct. Anil (PW4) from Excise Department also arrived at the spot and disclosed them that they are also possessing the same information. These police officials also joined the raiding party and all of them started proceeding towards pre disclosed spot. On reaching the jhuggi no. B105, the police officials saw that a person was shifting cartoons inside his jhuggi. On the pointing of secret informer, the police officials arrested that person who State Vs Ram Singh FIR No. 304/11 2/12 disclosed his name as Ram Singh S/o Jagdish. The other 29 cartoons which were hidden near his jhuggi beneath a bedsheet were also recovered. The recovered cartoons were awarded serial no. from 1 30 and samples were drawn. The remaining cartoons were sealed in the same plastic bag with the seal of 'BS'. Requisite documentation was done at the spot and the present FIR No 304/11 under Section 33 of Delhi Excise Act was registered at PS O.I.A.
3. The prosecution's case proceeds further that after registration of FIR, Ct. Ombir Singh returned to the spot alongwith SI Shabbir Ahmed (PW6), who carried out further investigation. The sealed samples were sent for chemical analysis through Ct. Mahesh Pal (PW5) and on completion of the investigation, chargesheet was put to the Court. The copies of chargesheet were supplied to the accused and charge under Section 33 of Delhi Excise Act, 1961 was framed against him to which he pleaded not guilty and claimed trial.
Witnesses examined
4. The prosecution examined six witnesses.
Recovery witnesses PW1 ASI Bijender Singh supported recovery. He mentioned that the accused was trying to shift cartoons of illicit lilquor inside his jhuggi. He stated in his crossexamination that although public persons were requested to join investigation but written notice was not served State Vs Ram Singh FIR No. 304/11 3/12 upon them. He mentioned that seal after use was handed over to Ct Lala Ram who returned it to him on the same day but neither handing over nor return memo of the seal was prepared. He mentioned that seizure memo was prepared before sending rukka to police station.
PW2 HC Lala Ram also supported recovery. He stated in his crossexamination that IO did summon any one from nearby jhuggis to join investigation. He mentioned that spot was located at a distance of around 200 mtrs from the police station.
PW4 Ct. Anil from Excise Department also mentioned that other jhuggi dwellers were not summoned to join investigation. He stated that seizure memo was prepared by the IO before sending rukka to the PS. Formal witnesses PW3 ASI Rajinder Singh (Duty Officer) mentioned about the registration of FIR. The copy of FIR is Ex PW3/A. PW5 Ct. Mahesh Pal (police official who deposited samples at Excise Lab).
Investigating Officer PW4 SI Shabbir Ahmed justified the investigation carried out by him. He stated in his crossexamination that no public person was joined in investigation. He mentioned that he did not make any inquiry about the ownership of the jhuggi from the neighbourers. State Vs Ram Singh FIR No. 304/11 4/12
5. Accused in his statement under Section 313 of the Cr.P.C., 1973, pleaded innocence and claimed that he has been falsely implicated.
Arguments
6. I have heard Ld. APP for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. APP has contended that prosecution has proved its case beyond shadow of doubt. He has argued that all the material witnesses have entered into witness box and they have fully supported the case of prosecution. He has also argued that minor contradictions are bound to appear in any criminal matter and in the case in hand, there is no material contradiction which may create any doubt about the authenticity and veracity of the prosecution case and all the documents have been duly proved.
8. Ld. Defence Counsel has assailed the case of the prosecution. It has been argued that there is no justification as to why independent witnesses were not joined in investigation despite the fact that the police was having prior information. He has also argued that there are material contradictions and discrepancies and it becomes evident that illicit liquor had been planted upon the accused.
9. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on State Vs Ram Singh FIR No. 304/11 5/12 record.
Brief reasons for the decision
10. Let us peruse the testimony of recovery witnesses. Both the recovery witnesses have supported recovery. The prosecution's case has been challenged on the ground that no sincere efforts were made to join public witness in investigation. Admittedly, no public witness has been joined in investigation. ASI Bijender Singh (PW1) and HC Lala Ram (PW5) have mentioned that passersby were passing from the spot but none of them joined recovery proceedings. IO SI Shabbir Ahmed (PW6) has also admitted the presence of public witnesses. He mentioned that he did not request any public persons to join investigation. On appreciation of testimony of police witnesses, it is evident that they have not joined any independent public witness despite availability. Stereo typed version churned by them does not inspire confidence. The record shows that no sincere efforts were made by the investigating officer to join independent witnesses. The police officials could have at least noted down the names of the persons who refused to join the investigation or they should have made efforts to join some independent witness from the locality. They have very casually mentioned that passersby were requested to join the investigation but they refused. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it has been held that such casual explanations that the public persons refused to join the proceedings are State Vs Ram Singh FIR No. 304/11 6/12 unreliable. Similarly, in Pradeep Narayan Vs. State of Maharashtra reported in AIR 1995 S.C. 1930, it was observed that failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the accused.
11. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. It puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses and more so, when they were available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to State Vs Ram Singh FIR No. 304/11 7/12 persuade independent persons. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been observed and held; "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 accused".
12. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and State Vs Ram Singh FIR No. 304/11 8/12 creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law. There is nothing on record to demonstrate that any genuine effort was made by the police officials to join an independent witness.
13. The record shows that there was ample time with the police officials to join an independent witness in the investigation. The recovery was made in the evening at around 6.50 pm. It is not the prosecution's case that no public witness was available at the spot. All the spot witnesses have categorically admitted that public persons were passing from the spot. Admittedly, the accused was apprehended from a public place. The police witnesses have admitted the said fact during their cross examination. Inspite of the said fact, no efforts were made by the police officials to join an independent person in the investigation. The investigating officer has not joined any independent public witness despite availability. The safeguard provided under section 100 (4) Cr PC State Vs Ram Singh FIR No. 304/11 9/12 is not a mere formality. It is meant to ensure that credibility can be attached to the recovery proceedings. Failure to comply with the said provisions despite the fact that public persons were easily available at the spot is fatal for the prosecution's case.
14. The record reveals that Preparation of the documents at the spot is doubtful. On the recovery memo, FIR number has been mentioned. ASI Bijender Singh (PW1) as well as Ct. Anil (PW4) have mentioned that seizure memo was prepared before sending rukka to police station. In the rukka itself, it has also been mentioned that recovered liquor was seized and sealed before sending the rukka. HC Lala Ram (PW2) has also given similar version. It is observed that FIR number has been mentioned on the seizure memo. No explanation has come on record as to how the FIR number was mentioned on the seizure memo which was prepared before registration of FIR. In such circumstances, inference has to be drawn that either FIR was recorded prior in time or the seizure memo was prepared later on. The said fact casts doubt over the credibility of investigation. The benefit of doubt ought to be given to the accused.
15. I am of the considered opinion that there are number of infirmities in the version of the prosecution and missing links which creates doubt over the story of the prosecution. No public witness has been joined in investigation. How these 30 cartoons were brought to the State Vs Ram Singh FIR No. 304/11 10/12 place where they were found ? In case these cartoons were unloaded from some vehicle then the neighbourers must have noticed it but none of the neighbourers have been joined in investigation. Police officials have not even made efforts to ascertain the ownership of jhuggi where the accused was purportedly found. All these shortcomings makes the prosecution's version doubtful. The benefit of which ought to be given to the accused. It is also observed that departure and arrivals of the police officials of the police station have not been proved to lend credence to the version of the prosecution.
16. In view of the above said discussion, I find it to be a fit case where the accused should be granted benefit of doubt. Accordingly, accused Ram Singh is granted benefit of doubt and stands acquitted of the charges under Section 33 of Delhi Excise Act.
17. Bail Bond stands cancelled. Surety stands discharged. Endorsement placed on the documents of the surety be cancelled and same be returned to him, if retained on record. Case property be confiscated to the state and same be destroyed.
18. File be consigned to record room after necessary compliance.
Announced in open Court (Sudhanshu Kaushik)
on this day of 22.02.2013 Metropolitan Magistrate
Saket Courts, Delhi
State Vs Ram Singh
FIR No. 304/11 11/12
State Vs Ram Singh
FIR No. 304/11 12/12