Delhi District Court
State vs Dinesh on 15 February, 2016
FIR No. 414/13
PS: Vijay Vihar
U/s 33 Delhi Excise Act
State Vs Dinesh
IN THE COURT OF SH. VIPLAV DABAS MM-04(NORTH WEST)
ROHINI COURTS DELHI
Case ID No. 02404R0338732013
FIR No. 414/13
PS: Vijay Vihar
U/s 33 Delhi Excise Act
State Vs Dinesh
Date of Institution of case : 19.11.2013
Date of Judgment : 15.02.2016
JUDGMENT:
a) Date of offence : 26.08.2013 b) Offence complained of : U/s 33 Delhi Excise Act c) Name of Accused, his : Dinesh parentage & residence S/o Sh.Prabhati R/o T-8, Sharma Colony Budh Vihar, Phase-II Delhi d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted Page No.1/12 FIR No. 414/13 PS: Vijay Vihar U/s 33 Delhi Excise Act State Vs Dinesh BRIEF FACTS AND REASONS FOR DECISION:-
1. In the present case, accused Dinesh was put to the trial for the offence punishable U/Sec 33 Delhi Excise Act on the allegations that on 26.08.2013 at about 8.20 p.m. at H.No. T-8, Sharma Colony, Budh Vihar, Phase-1, Delhi within the jurisdiction of PS Vijay Vihar accused Dinesh was found in possession of one plastic kattas containing 58 quarter bottles of Besto Whiskey without any permit or valid license and in contravention of provisions of Delhi Excise Act. Thus the accused committed an offence punishable u/s 33 of Delhi Excise Act. After the usual investigation, the charge sheet for the offence punishable U/Sec 33 Delhi Excise Act was prepared against the accused. The aforesaid charge sheet was filed before the court on 19.11.2013, whereupon the cognizance of the offence was taken against the accused. Thereafter, the provision of section 207 Cr. P.C. was complied with.
2. After hearing the arguments, the accused was charged for the alleged commission of the offence punishable U/Sec 33 Delhi Excise Act to which the accused pleaded "Not Guilty" and claimed trial. Accordingly, the case was fixed for prosecution evidence.
3. During the course of the trial prosecution has examined three witnesses i.e. PW 1 Ct.Ashok, PW 2 HC Subhash and PW 3 Ct.Virender to substantiate the accusation.
4. The case of the prosecution is that on 26.08.2013 PW 3 Ct.
Page No.2/12 FIR No. 414/13PS: Vijay Vihar U/s 33 Delhi Excise Act State Vs Dinesh Virender was posted at PS Vijay Vihar. On that day he alongwith PW-1 Ct. Ashok were on area patrolling duty. While patrolling at about 8.20 p.m. they reached infront of Shamshanghat road, T-Block, H.No. T-8, Sharma Colony,Delhi where they saw that accused Dinesh was sitting on the cot. On seeing them accused suddenly started laying on the cot. On suspicion they checked the plastic katta kept under the above said cot. On checking the plastic katta same was found containing quarter bottles of illicit liquor. Thereafter, PW 3 Ct. Virender gave the information to PS upon which PW-2 HC Subhash came at the spot to whom they handed over the custody of accused and case property. IO PW 2 HC Subhash checked the katta which was found containing 58 quarter bottles of Besto Whiskey and IO separated two quarter bottles as sample and remaining were kept in same plastic katta and same were sealed with the seal of GS. IO PW 2 HC Subhash filled M-29 form and seal after use was handed over to PW 3 Ct. Virender. IO HC Subhash seized the case property vide seizure memo Ex.PW 1/A. Thereafter, IO PW 2 HC Subhash recorded the statement of PW 3 Ct. Virender ExPW/2A and IO prepared the tehrir and handed over to PW 3 Ct. Virender for the registration of case at PS. After sometime, PW 3 Ct.Virender came back at the spot after getting the case registered and handed over the copy of FIR and original tehrir to the IO. IO prepared the site plan at the instance of PW 3 Ct. Virender. Thereafter, IO PW 2 HC Subhash interrogated the accused and recorded disclosure statement of accused Ex. PW1/B and arrested the accused vide arrest memo and personal search memo Ex. PW1/C and Ex. PW1/D. IO PW 2 HC Subhash recorded the statement of PW 3 Ct. Virender. Thereafter they took the accused and case property to the PS Page No.3/12 FIR No. 414/13 PS: Vijay Vihar U/s 33 Delhi Excise Act State Vs Dinesh and case property was deposited in the malkhana.
The witness correctly identified the accused and case property Ex.P-1.
5. In the present case, prosecution has produced and examined three witnesses. The testimony of PW 1 Ct.Ashok, PW 2 HC Subhash and PW 3 Constable Virender are material one being the witnesses in whose presence entire proceedings were conducted at the spot.
During cross examination PW-1 Constable Ashok, PW 2 HC Subhash and PW 3 Constable Virender stated that IO requested the public persons to join the raiding party but no public person joined the investigation and that no notice was served upon the public persons who refused to join the investigation. The witness denied the suggestion that nothing has been recovered from the possession of accused. The witness denied the suggestion that accused has been falsely implicated in the present case by planting the case property against him or he has deposed falsely.
6. On 04.02.2016, vide a separate statement accused admitted the factum of preparation of FIR which is marked as Mark A in the present case without admitting his presence at the spot and accordingly, the prosecution witness qua the aforesaid witness was dropped.
7. Thereafter, Prosecution Evidence was closed as all the material witnesses were examined and statement of the accused was recorded wherein all the incriminating circumstances appearing in evidence were Page No.4/12 FIR No. 414/13 PS: Vijay Vihar U/s 33 Delhi Excise Act State Vs Dinesh put to the accused who stated that nothing was recovered from his possession at the relevant time and he has been falsely implicated in the present case by the police officials by planting the case property upon him. The accused chose not to lead defence evidence.
8. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused that he has been falsely implicated in the present case which is evident from the non joinder of the public witnesses, that nothing was recovered from his possession and that the alleged recovery has been planted upon the accused at the police station.
9. I have heard the Ld. APP for the state as well the defence counsel.
10. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant / State and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed as follows:-
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11. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. Record shows that PW-1, PW 2 and PW 3 have deposed that public persons were asked to join the investigating but none agreed and that no notice was served by him upon those public persons which implies that spot was a public area. It is evident from the testimony of PW-1, PW-2 and PW-3 and record that accused was apprehended alongwith the alleged illicit liquor at public place and that public persons were asked to join the investigation who did not agree still police officials neither served any notice upon them to initiate prosecution for refusal nor recorded their names or addresses to show that the police officials made bonafide efforts to persuade the public persons to join the investigation. It is apparent from the perusal of testimony of PW-3 Ct. Virender that seal after the use was handed over to him by IO HC Subhash who both are police officials and were posted in the same police station and not to any independent witness which makes it highly probable that the entire proceeding were conducted at the police station, that the case property was tampered with and that the alleged recovery was planted upon the accused at the police station.
12. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) Page No.6/12 FIR No. 414/13 PS: Vijay Vihar U/s 33 Delhi Excise Act State Vs Dinesh 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 case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been Page No.7/12 FIR No. 414/13 PS: Vijay Vihar U/s 33 Delhi Excise Act State Vs Dinesh produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
13. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
14. It is also pertinent to mention that prosecution witnesses have failed to produce any documentary evidence or the DD entries to show their movement from the police station for patrolling.
Regarding the value of making DD entry it is worth mentioning that 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 Page No.8/12 FIR No. 414/13 PS: Vijay Vihar U/s 33 Delhi Excise Act State Vs Dinesh 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. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 19872 (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 court 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 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. These omissions on the part of the prosecution create doubt on the version that the accused was apprehended with the alleged illicit liquor at the spot by the said PWs.
15. Furthermore, the testimony of PW-1, PW 2 and PW-3, record and the perusal of rukka shows that the seizure memo Ex. PW-1/A and Form Page No.9/12 FIR No. 414/13 PS: Vijay Vihar U/s 33 Delhi Excise Act State Vs Dinesh M-29 were prepared prior to the dispatch of the Rukka and registration of the FIR. However, perusal of the said documents clearly shows that the FIR number and other particulars of the present case are mentioned on the said documents. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those documents which were prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
16. Being guided by above said case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged country made liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the Page No.10/12 FIR No. 414/13 PS: Vijay Vihar U/s 33 Delhi Excise Act State Vs Dinesh police station and not on the spot.
17. In the present facts and circumstances, it is pertinent to mention the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
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18. In view of the aforesaid discussion, in my opinion accused has been able to raise a probable defence creating doubt about the existence or veracity of the prosecution version which renders the same untrustworthy. Accordingly, accused Dinesh S/o Sh. Prabhati is acquitted of the charge leveled against him. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Case property be confiscated to State and be destroyed after expiry of period of appeal. Fresh bail bond and surety bond furnished and accepted in compliance of Section 437 A Cr.P.C.
File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABAS)
today i.e on 15.02.2016 MM/NORTH WEST-04):DELHI
15.02.2016
Page No.12/12