Delhi District Court
Fir No. 416/05 State vs . Shekhar & Ors. Unique Id ... on 19 September, 2015
FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006
IN THE COURT OF MS. DEEPIKA SINGH
METROPOLITAN MAGISTRATE, DELHI
FIR No.416/05
PS : Uttam Nagar
u/s 61/1/14 Excise Act.
State Vs. Shekhar & Ors.
JUDGMENT :
a. Sl. No. of the case : U-185/3/05 b. Date of Commission of offence : 14.05.2005 c. Name of complainant : Ct. Rambir Singh,
d. Name of the accused, his/her parentage : 1. Sh. Shekhar S/o Sh. Durg singh R/o 36-G, Vikas Enclave, Kachhi Colony, Shiv Vihar, Uttam Nagar, New Delhi.
and
2. Sh. Om Babu, S/o Sh. Durg Singh, R/o 36 G, Block-A, Shiv Vihar, Vikash Nagar,Delhi.
e. Offence complained of or proved : 61/1/14 Excise Act f. Plea of the accused : Pleaded not guilty. g. Final Order : Acquitted h. Date of such order : 19.09.2015 Page 1 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006
Brief statement of the reasons for the decision
1. Briefly stated the case of the prosecution is that on 14.05.05, at about 03:10 PM, at main road, S-Block, in front of gali no. 16, Vikas Nagar, Uttam Nagar, Delhi, Ct. Rambir Singh apprehended the accused persons with two cartons containing 96 quarter bottles of illicit liquor on motorcycle no. DL-4S-AH-7714 without any license or permit in contravention of Delhi Administration notification and thereby committed an offence punishable u/s 61/1/14 Excise Act. Accused persons were charge sheeted accordingly.
2. Charge u/s 61/1/14 Punjab Excise Act was framed against the accused persons on dated 29.03.2007 to which they pleaded not guilty and claimed to be tried.
3. Prosecution in support of its case examined four witnesses.
4. PW-1 ASI Bal Kishan deposed that he was the duty officer on 14.05.2005 and had registered the FIR on the basis of rukka received from Ct. Rambir Singh prepared by HC Ombir Singh and proved the same as Ex. PW-1/A.
5. PW-2 Ct. Rambir, who was the recovery witness deposed that he was posted at PS Uttam Nagar as Ct. On that day, he was on patrolling duty at Main Road, S-block, in front of Gali No. 16, Delhi at about 03:15 pm, he saw two person on a motor cycle coming from the side of Page 2 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006 Ranhola Road. After seeing him both the accused persons tried to turn back on suspicion. He stopped them and checked the said motorcycle and found two petties of illicit liquor. He inquired about the said paitty, it was found containing 48 quarter bottles in each petty. He informed above said incident to PS Uttam Nagar. Thereafter, HC Ombir Singh came at the spot and he narrated above said incident and handed over both the accused persons with said petty. Thereafter IO requested 4-5 passers to join the investigation but none agreed and left the spot without disclosing their name and address. Thereafter, IO also checked the said petty and found total 96 quarter bottles in both petties and one bottle was taken out for sample purpose. Thereafter, IO sealed case property as well as sample bottle with the seal of OS. IO took the possession of case property as well as above said motorcycle. The case property seized with the seal of OS vide seizure memo which is Ex. PW 2/A & Ex. PW 2/B bearing his signature at point A. IO recorded a tehrir on his statement and gave to him to send to PS for getting registration of FIR. After registration of FIR he came at the spot and handed over original rukka and carbon copy of FIR to IO. IO prepared site plan at the instance of him. Thereafter, IO arrested the accused Sh. Om Babu vide arrest memo which is Ex. PW 2/D bearing his signature at point-A and conducted personal search of accused which is Ex. PW 2/E bearing his signature at point-A. The case property as well as sample was deposited in the malkhana. He also deposited sample in excise office, ITO, Delhi vide RC No. 156/21 dated 14.06.05.
Thereafter, MHCM had produced the case property i.e. white colour plastic katta containing torn two petties along with 95 quarter Page 3 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006 bottles of illicit liquor. Most of the bottles were full with illicit liquor and some bottles were empty. Case property beared Mud No. 3538/05. Same was shown to the witness, who correctly identified the same as recovered from the possession of accused. Case property is Ex. P-1.
In his cross-examination, he deposed that he left PS at about 9:30 pm on foot. He did not remember the departure entry as well as arrival entry. It was correct that area from where the accused was arrested was of redy khokhas. The accused was coming without helmet. He called at PS by the STD booth which is near about spot. He did not ask any person to join the investigation personally. IO reached at the spot by the motorcycle. He did not remember how many papers were prepared by the IO before sending of rukka. IO handed over the seal to him after use. After two days seal was returned by him to IO. He started from spot to PS for the registration of the case at about 05:00 pm and came back on the spot withing 1-1 ½ hour. IO obtained all the signature before the sending the rukka. It was correct that the case property was unsealed and that the katta did not bear the FIR No. He could not tell at what time he left the spot but it was dark by then. It was wrong to suggest that accused was called from his house at PS and falsely implicated in the present case. It was further wrong to suggest that nothing was recovered from the possession of the accused. It was wrong to suggest that he was deposing falsely being police official at the instance of the investigation officer.
6. PW-3 HC Banwari Lal, deposed that on 14.05.05, he was posted as MHC(M) PS Uttam Nagar. On that day IO HC Om Bir produced one Page 4 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006 plastic katta sealed with the seal of OS, sealed samples of 1 quarter of 180 ml. , sealed form No. M29 and one motorcycle no. DL-SH-7714 was deposited. Seal was of OS and was in intact condition. He deposited abovesaid case property vide mud no. 3538 in the register no. 19. Copy of the said entry (OSR) is Ex. PW3/A bearing his signature at point A and taken on record. The said copy was compared with original register no. 19 which had been produced that day and found to be same and correct.
On 14.06.2005, on the request of HC Om Bir abovesaid sealed sample along with M-29 Form was handed over to Ct. Ram Bir vide RC No. 156/21/05 and he returned back copy of the RC after depositing the sample in the Excise Ofiice at ITO. So long as abovesaid case property was under his custody he did not temper with it nor did he allow any other person to temper with it.
7. PW-4 HC Ombir, deposed that on 14.05.05 he was posted at PS Uttam Nagar as HC. On that day, DD No. 27D was assigned to him. He went to Main Road, S-block, in front of Gali No. 16, Vikash Nagar, Uttam Nagar, Delhi, in response to said DD, where he met Ct. Rambir Singh who handed over the accused Om Babu present in court that day and correctly identified by the witness to him along with one motorcycle. He also handed over to him two cartons containing quarter bottles and stated that accused Om Babu along with one another companion was transporting liquor. He recorded his statement which is already Ex. PW2/C. Thereafter he requested 4-5 passers to join the investigation but none agreed and left the spot without disclosing their name and address. Thereafter, he also checked the said petty and Page 5 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006 found total 96 quarter bottles in both cartons. One quarter bottle was separated out of the same for sample purposes. Thereafter, he sealed case property as well as sample bottle and with the seal of OS. He took the possession of case property as well as above said motorcycle. The case property seized with the seal of OS and was seized, vide seizure memo is already Ex. PW2/A & Ex. PW2/B. Thereafter, he prepared a tehrir Ex. PW4/A and gave it to Ct. Rambir with directions for getting FIR registered. After registration of FIR he came at the spot and handed over original rukka and carbon copy of FIR to him. He prepared site plan which is Ex. PW4/B at the instance of Ct. Rambir. Thereafter, he arrested the accused vide arrest memo which is already Ex. PW2/D and conducted personal search already Ex. PW2/E. The case property as well as sample was deposited in the malkhana. He was directed to deposit sample in excise office, ITO, Delhi, which he complied vide RC No. 156/21 on 14.06.2005.
On 21.10.05, accused Shekhar present in the court that day and correctly identified by the witness that time, had surrendered in the court of Ld. MM. He was arrested vide memo Ex. PW4/C. The result from Excise Lab was obtained which is Ex. PW4/D. In his cross examination he deposed that he reached at the spot at about 03:40 on motorcycle. It was correct that public persons were coming and going from the spot. Ct. Rambir went to PS with the rukka at about 5:00 pm for registration of the FIR and came back at the spot at about 06:30 pm. The seal was returned to him by Ct. Rambir after about two days in the PS. No memo was prepared by him regarding return of the seal. He obtained the signatures of Ct. Rambir on four or five documents. Case property was brought to PS through them on the Page 6 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006 rickshaw and recovered motorcycle was driven by him. Finally they left the spot at about 09:00 pm. It was wrong to suggest that accused was called from his house at PS and falsely implicated in the present case. It was further wrong to suggest that nothing was recovered from the possession of the accused. It is wrong to suggest that he was deposing falsely being police official.
8. After prosecution evidence, statement of accused persons under section 313 Cr.P.C was recorded. All the incriminating evidence was put to the accused persons. Accused persons denied all the allegations stating that they have been falsely implicated in this case. Accused persons did not want to lead any evidence in their defence.
9. Arguments advanced by Ld. APP for the State and Ld. Defence counsel were heard. Record perused. Ld. defence counsel has argued that the case of prosecution is entirely based upon the testimony of police witnesses and is not independently corroborated. On the other hand, Ld. APP has submitted that the prosecution has been able to prove its case.
10. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
Page 7 of 12FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006
11. After going through the complete evidence and records of this case, I am of the view that accused persons namely Sh. Shekhar and Sh. Om Babu deserves acquittal in this case on the following grounds :-
12. Firstly, if the police personnel who has apprehended the accused with the illicit liquor was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
As per the chapter 22 Rule 49 of the Punjab Police Rules, which is reproduced as under:
"Chapter 22 Rule 49 Matter to be entered in Register no.11. The following matters shall amongst others, be entered :
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at a 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.11 is maintained.
13. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in register no.11, they were patrolling in the particular area. In the present case also, this provision has not been complied with by prosecution witnesses. The relevant entries Page 8 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006 regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble High Court held that :
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts 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".
14. Secondly, the prosecution has examined four witnesses, however no independent witness has been examined even though recovery witness has deposed that the accused was apprehended near residential area and IO had requested 4-5 passerby to join the investigation. It is not clear as to why no legal action was taken against such persons who had refused to be a witness. In the case of Hemraj vs State of Haryana (AIR 2005 SC 2110) it was observed that "the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case".
15. In Roop Chand Vs. The State of Haryana 1999 (12) C.L.R, the Punjab and Haryana High Court held as under:-
"It is well settled principle of the law that investigating Agency should join independent witness at the time of recovery of contraband Page 9 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006 articles, if they were 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 to join the investigation and on refusal by a person from the public the police 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".
16. Since all the witnesses are police personnels and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the view that charges of false implication cannot be ruled out at the instance of the police.
17. Further as per the case of the prosecution, it is not clear to whom the seal after use was handed over and when the seal was returned to the Page 10 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006 IO. No memo has been prepared and proved on the record. The prosecution was bound to prove on the record as to when the seal was returned to the IO to remove the element of the tampering with the case property. Not only this, there is an unexplained delay in sending the sample to the excise laboratory. The incident is of 14.05.2005 and the sample was sent to the Excise laboratory on 14.06.2005. There is no evidence that the sample remained intact till delivery to the office of chemical examiner. Till that time, the sample remained in police possession. It was the duty of the police to send the samples to the laboratory without any unexplained delay which could rule out any tampering with the case property which was not done in the present case and the case property remained in the police station at the disposal of the police.
18. Furthermore, there are couple of inconsistencies in the prosecution version. Case property when examined in the court, it was found that it did not bear FIR no. of the case, hence, recovery of illicit liquor from the accused as alleged by the prosecution is doubtful. No source of light has been shown in the site plan. It is not clear as to on what suspicion the accused was apprehended. Further the departure and arrival entries of the official witnesses have not been proved. The testimony of the official witnesses in the present case is not strong enough to base the conviction of the accused persons. In the criminal law, the prosecution has to prove the guilt of the accused beyond reasonable doubt, however, in the present case prosecution has miserably failed to do so.
Page 11 of 12FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006
19. In view of above mentioned facts and circumstances, I hold that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Accordingly, accused Mr. Shekhar and Mr. Om Babu stands acquitted of the offence u/s 61 of the Punjab Excise Act. However, they shall furnish a fresh bail bond, which shall remain in force for a period of six months from today U/s 437A Cr. P. C. Documents if any be returned after cancellation of endorsement. The case property be confiscated and be destroyed after expiry of period of appeal.
Announced in open court on 19.09.2015. (Deepika Singh) MM-06(West) THC, Delhi.
Page 12 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006 FIR No.1005/06 PS Uttam Nagar 08.04.15 Present: Ld. APP for the State. Accused in person.
Vide my separate judgment of even date, accused stands acquitted in this case. Bail bond canceled. Accused is directed to furnish a fresh surety of Rs.10,000/- on 11.05.2015 for the purpose of 437 A CrPC.
Documents, if any, be returned after cancellation of endorsement.
(Aditi Garg) MM-06(West) 08.04.2015 Page 13 of 12 FIR NO. 416/05 State Vs. Shekhar & Ors. Unique ID No.02401R1346312006 FIR No.795/06 PS Uttam Nagar 22.04.2015 Present : Ld. APP for the State.
Accused in person with Ld. Counsel.
Fresh bail bond furnished and accepted. Surety stands discharged. Documents, if any be returned after cancellation of endorsement.
Case property be confiscated to state and be destroyed after expiry of period of appeal.
File be consigned to record room after due compliance.
(Aditi Garg) MM-06/W/Delhi 22.04.2015 Page 14 of 12