Delhi District Court
State vs Tara on 31 July, 2012
IN THE COURT OF MS. SHUCHI LALER METROPOLITAN MAGISTRATE - 04 :
EAST: KARKARDOOMA COURT : DELHI.
FIR No.397/04
U/s 61 Punjab
Excise Act
PS Vivek Vihar
STATE Vs TARA
JUDGMENT:
A Sr. No. of the case 02402R0431682004 B Date of institution 30.11.2004 C Date of commission of 02.10.2004 offence D Name of the complainant Ct. Dalbir SIngh E Name of the accused & Smt.Tara, w/o Late Sh. Shailender Singh, r/o his parentage and address H. No. 201, Gali No. 4, Jwala Nagar, Shadara. F Offence complained of U/S 61 Punjab Excise Act G Plea of the accused Pleaded not guilty H Order Reserved on 31.07.2012 I Final order Acquitted J Date of such order 31.07.2012 BRIEF FACTS AND REASONS FOR DECISION
1) The prosecution case, in brief, is that on 02.10.2004 at about 09.20 at Kasturba Nagar Chowk, Shahdara, Delhi the accused Smt. Tara was found in possession of a plastic cane containing 10 litres of country made liquor, without any valid permit or license. After investigation, challan was filed by the police.
FIR No-397/04 St. Vs. Tara Pages 1 of 7
2) Complete set of copies was supplied to the accused and after hearing arguments, vide order dated 25.01.2007 charge for offence punishable u/s 61 Punjab Excise Act was framed against the accused by the Ld. Predecessor to which the accused pleaded not guilty and claimed trial.
3) Prosecution in support of present case examined the following five witnesses.
(i) PW1 HC Dalbir Singh deposed at on 02.10.2004, he was on petrolling duty alongwith Ct. Sanjay and at about 9:20 p.m, when they reached at Kasturba Nagar, Chowk, Delhi, unsuspicion, they apprehend the accused and checked the cane from which smell of liquor was coming. PW1 informed at the PS and IO ASI Inderpal Yadav alingwith lady Ct. Vinita reached at the spot and he handed over the accused alongiwth the recovered cane to the IO. PW1 has prove the seizure memo ExPW1/A , his statement ExPW1/B, arrest memo ExPW1/C and personal search memo ExPW1/D. He correctly identified the case property i.e the cane ExP1.
(ii) PW2 Ct. Subhash Chand deposed that on 29.10.2004 he took the sample from Malkhana PS Vivek Vihar vide RC No228/21 and deposited the same Excise Labotary, ITO. PW3 Lady Ct. Vinita deposed that on 02.10.2004, she alongwith ASI Inderpal reached at the spot where Ct. Dalvir made them and handed over the accused alongwith 10 Ltr. Plastic cane to the IO. PW3 has proved the seizure memo ExPW1/A, arrest memo ExPW1/C and on the FIR No-397/04 St. Vs. Tara Pages 2 of 7 instructions of the IO she conducted the personal search of the accused vide memo ExPW1/D.
(iii) PW3 DO SI Inder Pal deposed that on the basis of the rukka brought by Ct. Dalbir he registered the present FIR ExPW4/A and make endorsement on the rukka ExPW4/B. SI Inderpal Yadav deposed on receiving DD No32 A he alongwith, lady Ct. Vinita reached at the spot where Ct. Dalvir made them and handed over the accused alongwith the recovered cane to him. PW5 measured the liquour which came to be nine literes and he separated one quarter bottle as sample and the sample quarter bottle and cane were seal with the seal of IPY. He prepared the seizure memo ExPW1/A and recorded the statement of Ct. Dalbir ExPW1/B and prepared the rukka which he handed over to Ct. Dalbir for registration of the case. PW5 arrested the accused vide memo ExPw1/C and got conducted her personal search through lady Ct. Vinita vide memo ExPW1/D. He recorded the statement of the witnesses prepared the challan and filed it court.
(iv) Retd. SI Inderpal appeared as PW4 who proved the present FIR Ex. PW4/A and he had made the endorsement on the rukka Ex. PW4/B.
(v) HC Dayanand appeared as PW5 who deposed that on 07.06.2005, on receiving of DD No. 19 A, he reached alongwith L/Ct. Vinita at the spot, where Ct. Sanjay met them and handed over the accused along with recovered can to him. Thereafter, PW5 requested 34 FIR No-397/04 St. Vs. Tara Pages 3 of 7 public persons to join the proceedings, but none agreed. PW5 took out one quarter bottle liquor as sample and can and sample were sealed with the seal of DN which was taken into possession vide Seizure memo Ex. PW5/A and form M29 was filled by him and after use, the seal was handed over to Ct. Sanjay. PW5 recorded the statement of Ct. Sanjay Ex. PW2/A. PW5 proved the seizure memo Ex. PW5/A, rukka Ex. PW5/B, site plan Ex. PW5/C, arrest memo Ex. PW1/C and the personal search memo Ex. PW1/B and also proved the case property Ex. P1. PW5 correctly identified the accused. In his cross examination, PW5 stated that the spot is a public place and he asked the public persons to join the investigation, but none agreed and no notice was given to them. He further stated that all the writing work was done in street light at the spot while sitting at Patri. PW5 denied the suggestion that nothing was recovered from the possession of the accused and all the proceedings were done while sitting at PS and the accused has been falsely implicated in the present case.
4) Statement of accused was recorded wherein she pleaded innocence and false implication in this case, however, she did not wish to examine any witness in support of her defence.
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 10 litres of country made liquor, without FIR No-397/04 St. Vs. Tara Pages 4 of 7 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 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. PW5 has deposed that he took out one quarter FIR No-397/04 St. Vs. Tara Pages 5 of 7 bottle liquor from the can as sample and the sample was sealed with the seal of DN and prepared the seizure memo Ex. PW1/A. PW5 prepared the rukka which he handed over to PW1 Ct. Dalbir for the registration of the case. The record reveals that FIR number finds mention on the seizure memo Ex. PW1/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 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 PW1 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 Smt. Tara for the offence punishable U/S 61 Punjab Excise Act in FIR No. 397/04 FIR No-397/04 St. Vs. Tara Pages 6 of 7 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/DELHI FIR No-397/04 St. Vs. Tara Pages 7 of 7