Delhi District Court
State vs Krishan on 18 February, 2015
FIR No.148/07
P.S. Narela
U/s. 61/1/14 of Punjab Excise Act, 1914.
State Vs Krishan
IN THE COURT OF SANDEEP GUPTA: METROPOLITAN
MAGISTRATE:ROHINI COURTS:DELHI
FIR No. 148/07
P.S. Narela
U/s. 61/1/14 of Punjab Excise Act
State Vs. Krishan
Date of Institution of case:-25.09.07
Date of Judgment reserved:-19.09.14
Date on which Judgment pronounced:- 18.02.15
JUDGMENT
Unique ID no. : 02404R0534072007
Date of Commission of offence : 15.03.07
Name of the complainant : Ct. Bani Singh, No.1790/NW, PS
Narela, Delhi.
Name and address of the accused : Krishan S/o Sh. Parbhu, R/o H.No.
862, Gali No.4, Balmiki Mohalla,
Village Bankner, Narela, Delhi-40.
Offence complained of : 61/1/14 of Punjab Excise Act
Plea of accused : Not guilty
Date of order : 18.02.2015
Final Order : Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:
Accused Krishan S/o Sh. Parbhu has been sent up for the trial for the offence U/s. 61/1/14 of Punjab Excise Act for the reason that on 15.03.07 at about 6:45 p.m. at near Railway Phatak Bankner, Narela, Delhi he was found in possession of one plastic bag containing 36 half bottles of Murthal no.1 Masaledar desi sharab which he was carrying without any permit or licence and on the basis of the said allegations, the present FIR bearing no.148/07 was FIR No.148/07, P.S. Narela Page 1 of 8 State Vs. Krishan FIR No.148/07 P.S. Narela U/s. 61/1/14 of Punjab Excise Act, 1914.
State Vs Krishan registered at Police Station Narela and the accused has been charged with the offence under Section 61/1/14 of Punjab Excise Act.
2. After investigation, charge-sheet was filed against the accused and after supplying the copies to him in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C), a charge U/s. 61/1/14 of Punjab Excise Act was framed against the accused on 20.04.2009, to which accused pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined three witnesses.
4. PW1 is HC Begraj, No.1040, Security E Block, Security Line, Delhi. He was the MHC(M) in the present case. He deposed that on 15.03.07, HC Ramesh Chand had deposited the case property i.e. one plastic katta containing half bottles of liquor, sample half bottles duly sealed with the seal of RC and excise form in which respect he made entry at serial no. 172/07 in register no.19. He further deposed that on 22.03.07 the aforesaid sample alongwith excise form was sent to excise laboratory through Ct. Bani Singh vide RC no. 86/21/07. He further deposed that the case property were not tampered as long as it remained in his possession. He had brought the original register no. 19 and the same is Ex.PW1/A. During his cross-examination he denied the suggestion that no case property was deposited by IO.
5. PW2 is HC Bani Singh, No. 797/T, Patel Nagar Circle, Delhi. He is the witness of initial recovery in the present case. He deposed that on 15.03.07 when he was on patrolling duty at Village Bankner, at about 6:45 p.m. he saw one person coming from railway station side, who was carrying one plastic katta on his right shoulder. He further deposed that on suspicion, he stopped him and checked the plastic katta which was found containing illicit liquor. On interrogation, he revealed his name as Krishan S/o Sh. Prabhu. Thereafter, he gave this information to PS upon which IO HC Ramesh Chand came at the spot FIR No.148/07, P.S. Narela Page 2 of 8 State Vs. Krishan FIR No.148/07 P.S. Narela U/s. 61/1/14 of Punjab Excise Act, 1914.
State Vs Krishan and he handed over accused and case property i.e. one plastic katta containing illicit liquor to him. Thereafter, IO recorded his statement Ex.PW2/A. Thereafter, IO requested 4-5 passerby to join the investigation but none agreed. Thereafter, IO opened the plastic katta and counted the case property, which was found to be containing 36 half bottles of Murthal no.1, out of which IO separated one half bottle as a sample and put the remaining case property in the same plastic katta and put the remaining case property in the same plastic katta and sealed both sample and remaining case property with the seal of RC. Thereafter, IO filled form M-29 and seal after use was handed over to him. Thereafter, IO seized the case property vide seizure memo Ex.PW2/B bearing his signature at point A. Thereafter, IO prepared the rukka and handed over to him for registration of FIR. After getting the case registered he returned at the spot with original rukka and copy of FIR and handed over the same to IO. Thereafter, IO prepared the site plan at his instance. Thereafter, IO arrested the accused vide arrest memo Ex.PW2/C and conducted his personal search vide memo Ex.PW2/D. Thereafter, the accused was released on bail on producing surety and the case property was deposited in malkhana. He further deposed that on 22.03.07, on the instructions of IO, he took the sample bottle and excise form to excise lab, ITO vide RC No. 86/21/07 and deposited the same there. Thereafter, he obtained the receipt which was deposited by him with MHC(M). This witness correctly identified the accused.
MHC(M) had produced one plastic katta with broken seal. Same was opened and found containing half bottles of Murthal no. 1 out of which, around 7-8 half bottles were empty. Witness correctly identified the case property as recovered from the possession of the accused. The plastic Katta alongwith half bottles of liquor were Ex.P1 collectively.
During his cross-examination by Ld. defence counsel, he deposed that he had not made his departure DD entry. He further deposed that public FIR No.148/07, P.S. Narela Page 3 of 8 State Vs. Krishan FIR No.148/07 P.S. Narela U/s. 61/1/14 of Punjab Excise Act, 1914.
State Vs Krishan persons were not passing through the spot. He admitted that spot was a residential area and IO asked the residents of locality to join the investigation but none agreed. No notice was given to the residents of locality who refused to join the investigation. He admitted that he had already opened the plastic katta before IO came at the spot. He denied the suggestion that case property was planted by him. He admitted that all the documents were prepared while sitting at the spot under a street light. He also admitted that said street light was not shown in the site plan. He also admitted that when he signed seizure memo Ex.PW2/B it was completely filled from top to bottom. He denied the suggestion that case property has been planted upon the accused and that he had deposed falsely.
6. PW3 is ASI Ramesh Chand, No.5822/PCR, PS Narela, Delhi. He is the investigating officer in the present case. has also deposed on the similar lines as that of PW2 HC Bani Singh. Therefore, his testimony is not repeated herein for the sake of brevity and to avoid verbosity/repetition. In addition to this, he prepared the rukka Ex.PW3/A and site plan Ex.PW3/B. He also correctly identified the accused.
During his cross-examination by Ld. defence counsel he deposed that public persons were passing through the spot. He admitted that spot was a residential area and IO asked the residents of locality to join the investigation but none agreed. No notice was given to the residents of locality who refused to join the investigation. He admitted that Ct. Bani Singh had already opened the plastic katta before he came at the spot. He denied the suggestion that case property was planted upon the accused. He admitted that all the documents were prepared while sitting at the spot under a street light. He also admitted that said street light was not shown in the site plan. He denied the suggestion that case property has been planted upon the accused and that he had deposed falsely.
FIR No.148/07, P.S. Narela Page 4 of 8 State Vs. Krishan FIR No.148/07 P.S. Narela U/s. 61/1/14 of Punjab Excise Act, 1914.
7. As far as, Excise report is concerned, I take judicial notice of the same.
8. It is a matter of record that after examination of all the material witnesses on 29.01.2014 prosecution evidence was closed.
9. Subsequent to the recording of statement of witnesses, statement of accused was recorded and all the incriminating evidence having came on record were put to the accused, in which he submitted that he is innocent and has been falsely implicated in the present case. He has further submitted that he does not wish to lead any evidence and final arguments were heard.
10. I have heard both the parties and perused the record.
11. In the present matter, the accused has been charged U/s. 61/1/14 of Punjab Excise Act and to convict the accused, the prosecution has to prove that the accused was found in possession of one plastic bag containing 36 half bottles of Murthal no.1 Masaledar desi sharab which he was carrying without any permit or licence.
12. In the present case, the deposition of PW2 and PW3 shows that public persons were requested to join the proceedings but none agreed. In these circumstances, like the present one, if public person were asked to join but have refused to assist the member of police party, they could have served the said public witness with a notice in writing to join police proceedings but perusal of the record shows that nothing sort of this was done in the present case. Even non examination or non joining of any public witness cast doubts on the case.
FIR No.148/07, P.S. Narela Page 5 of 8 State Vs. Krishan FIR No.148/07 P.S. Narela U/s. 61/1/14 of Punjab Excise Act, 1914.
13. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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".
14. In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner".
"4. 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 FIR No.148/07, P.S. Narela Page 6 of 8 State Vs. Krishan FIR No.148/07 P.S. Narela U/s. 61/1/14 of Punjab Excise Act, 1914.
State Vs Krishan 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 the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
Hence, it creates doubt in the story of prosecution.
15. The another material thing, which is required to discuss about the case of the prosecution is that on 15.03.07, PW2 was on patrolling duty and present at village Bankner, Delhi meaning thereby that at the relevant time he was not in the PS and it seems that he was outside the PS, then as per Punjab Rules, he being on duty was required to enter his departure & arrival to & from the PS Narela in the DD Register of the said PS.
16. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No. II-The following matters shall, amongst others, be entered.:-
(c) The hour of arrival and the 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.
17. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW1. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the presence FIR No.148/07, P.S. Narela Page 7 of 8 State Vs. Krishan FIR No.148/07 P.S. Narela U/s. 61/1/14 of Punjab Excise Act, 1914.
State Vs Krishan of PW1 and other staff at the spot. Hence, it creates doubt in the prosecution story.
18. Further, in the present case, no efforts were made to hand over the seal after use in the presence of independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out. Further, it is also seen that the case property when first time produced before the court i.e. one plastic katta with broken seal. Same was opened and found containing half bottles of Murthal no. 1 out of which, around 7-8 half bottles were empty. These things create severe doubt over the story of prosecution.
19. In view of the above said discussion, I am of the considered view that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubts. Accordingly, accused Krishan is hereby acquitted from the charges U/s. 61/1/14 of Punjab Excise Act.
20. File be consigned to Record Room after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini Court,Delhi ANNOUNCED IN THE OPEN COURT TODAY i.e. 18th February, 2015.
FIR No.148/07, P.S. Narela Page 8 of 8 State Vs. Krishan FIR No.148/07 P.S. Narela U/s. 61/1/14 of Punjab Excise Act, 1914.
State Vs Krishan FIR No. 148/07 P.S. Narela U/s. 61/1/14 of Punjab Excise Act State Vs. Krishan 18.02.2015 Present: Ld. APP for the State.
Ld. counsel for the accused with accused on bail. I have heard the arguments and perused the record. Vide separate judgment dictated to the steno in the open court, accused Krishan is acquitted of the said offence U/s. 61/1/14 of Punjab Excise Act.m At request, previous bail bond of accused is extended in terms of Section 437 A of Cr.P.C.
File be consigned to Record Room, after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini/Delhi FIR No.148/07, P.S. Narela Page 9 of 8 State Vs. Krishan