Delhi District Court
State vs Sunder on 18 January, 2012
IN THE COURT OF MS. SHUCHI LALER METROPOLITAN
MAGISTRATE - 04 : EAST: KARKARDOOMA COURT : DELHI.
FIR No.2/05
U/s 61/1/14 Punjab
Excise Act
PS Vivek Vihar
STATE Vs SUNDER
JUDGMENT:
A Sr. No. of the case 02402R0 328202005 B Date of institution 26/04/2005 C Date of commission of 01/01/2005 offence D Name of the complainant Ct. Naresh Pal E Name of the accused & Sh. Sunder S/o Late Sh. Mahender R/o H. his parentage and address No. 28/175, Kasturba Nagar, Delhi. F Offence complained of U/s 61 Punjab Excise Act G Plea of the accused Pleaded not guilty H Order Reserved on 18/01/2012 I Final order Acquitted J Date of such order 18/01/2012 BRIEF FACTS AND REASONS FOR DECISION
1) Complete set of copies was supplied to the accused and after hearing arguments, vide order dated 28.07.2006 charge for offence punishable u/s 61/1/14 Punjab Excise Act was framed against the accused by the Ld. FIR No. 02/05 PS: Vivek Vihar State Vs. Sunder Page No... 1/7 Predecessor to which the accused pleaded not guilty and claimed trial.
2) The prosecution case, in brief, is that on 01.01.2005 at about 07.20 pm at Kasturba Nagar near MCD office, Vivek Vihar, Delhi, the accused Sh. Sunder was found in possession of a plastic can containing nine litres country made liquor, without any valid permit or license. After investigation, challan was filed by the police.
3) Prosecution in support of present case examined the following four witnesses.
(i) Ct. Surat Singh appeared as PW1 who deposed that he had deposited the sample and the Excise form vide RC No. 5/21 in the Excise laboratory at ITO and handed over receipt to MHC((M).
(ii) MHC (M)/HC Jagpal appeared as PW2 who deposed that on 01.01.2005 he received one plastic can of 10 litres alongwith one half bottle and form 29 duly sealed with the seal of AK of which he made the entry in serial no. 2193. He had sent the sample alongwith the Excise form to Excise office through Ct. Suraj Singh who had handed over the receipt to him. He proved the entry Ex. PW2/A.
(iii) Ct. Naresh appeared as PW3 who deposed that on 01.01.2005 he was on patrolling duty and at about 07:20 pm when he reached near MCD office, FIR No. 02/05 PS: Vivek Vihar State Vs. Sunder Page No... 2/7 Kasturba Nagar chowk, Delhi, he saw the accused coming from the side of Shamshan Ghat, Jwala Nagar and was having one 10 litres plastic can of white colour in his right hand and on seeing PW3 he started walking speedily. On suspicion PW3 apprehended the accused and checked the can which he found to be containing countrymade liquor. PW3 informed at the police station and SI Atul Tyagi reached at the spot and PW3 handed over the accused as well as the recovered can to him. IO sealed the sample and after use, handed over the seal to PW3. PW3 proved the seizure memo Ex.PW3/A, his statement Ex.PW3/B, the arrest memo Ex. PW3/C and the personal search memo Ex.PW3/D. PW3 correctly identified the case property Ex. P1. In his cross examination, PW3 stated that he had made the departure entry but he does not remember its number. PW3 admitted that the spot where the accused was apprehended is a thickly populated area. PW3 denied the suggestion that nothing was recovered from the accused and the accused was lifted from his house.
(iv) IO/ SI Atul Tyagi appeared as PW4 who deposed that on 01.01.2005, on receiving DD No. 46B, he reached the spot where Ct. Naresh Pal met him and handed over the accused Sunder Singh alongwith recovered 10 litre white plastic can containing illicit liquor. PW4 requested 34 public FIR No. 02/05 PS: Vivek Vihar State Vs. Sunder Page No... 3/7 persons to join the investigation but none agreed and left the spot without disclosing their identity. PW3 took the measurement of recovered liquor with the help of plastic mug and bucket and it was found to be 9 litres. He had prepared the seizure memo Ex. PW3/A and had filled the form M29. PW4 recorded the statement of Ct. Naresh Ex. PW3/B and prepared the rukka Ex.PW4/A which he handed over to Ct. Naresh for registration of FIR. He prepared the Site Plan Ex. PW4/B and arrested the accused vide Memo Ex.PW3/C and conducted the personal search vide memo Ex.PW3/D. PW4 prepared the challan and filed it in the court. PW4 correctly identified the case property Ex. P1. In his cross examination, PW4 admitted that the spot is a public place and stated that he had asked the public persons to join the investigation but none agreed however, no notice was given to the persons who refused to join the investigation. PW4 denied the suggestion that nothing was recovered from the accused and all writing work was don while sitting in PS and he has falsely implicated the accused in the present case.
4) Statement of accused was recorded wherein he pleaded innocence and false implication in this case, however, he did not wish to examine any witness in support of his defence.
FIR No. 02/05 PS: Vivek Vihar State Vs. Sunder Page No... 4/7
5) I have heard the Ld. APP for State and Ld. Defence Counsel and have perused the record.
6) To prove the charge U/S 61 Punjab Excise Act, the prosecution has to prove that the accused was found in possession of plastic can containing 9 litres of country made liquor, without any valid permit or license. First of all, no public witness has been joined by the IO in the present case despite availability. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completion of formalities at the spot but none of the public witness has been joined in the investigation. The explanation given by the prosecution in this regard is that the public persons had refused to join the investigation. In Roop Chand Vs. State of Haryana, 1990(1) CLR 69, it has been observed that such explanations that the public persons refused to join the proceedings are unreliable and in Pardeep Narayan Vs. State of Maharashtra, AIR 1995 SC 1930, it has been held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused.
7) It is a settled proposition of law that Subsection 4 to Sec. 100 of Cr.P.C. is a FIR No. 02/05 PS: Vivek Vihar State Vs. Sunder Page No... 5/7 directory provision however, the explanation of nonjoining of independent witness should also be plausible. The explanation put forth by the prosecution for nonjoining of independent witness appears to be implausible for the reason that no notice whatsoever, was given to the persons refusing to join the investigation. The same creates doubt regarding the fairness of the investigation.
8) It is also noteworthy that most crucial part of the investigation has been conducted even prior to the registration of present FIR. PW4 has deposed that he took out one quarter bottle liquor from the can as sample and the sample was sealed with the seal of 'A' and prepared the seizure memo Ex. PW3/A. PW4 prepared the rukka which he handed over to PW3 Ct. Naresh for the registration of the case. The record reveals that FIR number finds mention on the seizure memo Ex. PW3/A. Admittedly, the Seizure memo was prepared before registration of FIR. When documents are prepared before registration of FIR and it contain the FIR number, the inference has to be drawn either FIR was recorded prior in time or the documents were prepared later on and in such case, benefit of doubt has to be given to the accused.
9) Further, no efforts whatsoever have been made by the prosecution to collect FIR No. 02/05 PS: Vivek Vihar State Vs. Sunder Page No... 6/7 any clue about the source from where illicit liquor was arranged for by the accused. At least, some efforts must have been made by the police to interrogate the accused and conduct the requisite investigation to know as to from where the accused arranged the illicit liquor.
10)It is also worth mentioning that as per the case of the prosecution PW3 was on patrolling duty at the time of incident. However, no DD entry in support of this fact has been placed on record. This further raises doubts about the prosecution story.
11) In view of the foregoing reasons, I am of the opinion that the prosecution has failed to prove its case against the accused, beyond reasonable doubt. Accordingly, I acquit the accused Sh. Sunder for the offence punishable U/S 61 Punjab Excise Act in FIR No. 02/05 PS Vivek Vihar. Case property be confiscated to the State, as per rules. Bail Bond of accused shall remain in force and surety of the accused shall not be discharged for a period of six months in view of section 437A Cr.P.C.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (SHUCHI LALER) TODAY ITSELF. MM/EAST/KKD/18.01.212 FIR No. 02/05 PS: Vivek Vihar State Vs. Sunder Page No... 7/7