Delhi District Court
State vs . : Babu Lal on 14 December, 2011
IN THE COURT OF SH. SUDHANSHU KAUSHIK:
MM:SAKET:DELHI
State Vs. : Babu Lal
FIR No. : 373/08
U/s : 61 of Excise Act
PS : Okhla Industrial Area
J U D G E M E N T
A. Sl. no. of the case 548/2/09
B. Offence complained of u/s. 61/1/14 of Excise
Act
or proved
C. Date of Offence 28.08.2008
D. Name of the complainant Ct Omkar
No. 3024/SD
PSOkhla Industrial Area,
New Delhi
E. Name of the accused Babu Lal
S/O Sh. Shambu
r/o. Jhuggi NoY/9,
Okhla,Okhla Industrial
AreaII,New Delhi
F. Plea of the accused Pleaded not guilty
G. Final order Acquitted
H. Date of Order 14.12.2011
BRIEF REASONS FOR THE DECISION
1. The case of the prosecution is that on 28.08.2008, at FIR No.373/08 1/14 around 10:00 PM, in front of Jhuggi no Y9, Okhla Industrial Area, PhaseII, New Delhi, accused Babu Lal was found in possession of Sixteen cartoons (each containing 12 bottles) of illicit liquor. He was not possessing any permit or license qua the liquor which was seized from her.
2. On the above said date, Ct. Onkar was on patrolling duty at Sanjay Colony, Okhala Industrial Area. At around 10.00 pm, during the course of his patrolling duty he reached at Jhuggi no Y9 and saw that one person was taking cartoons of illicit liquor inside the Jhuggi. He apprehended the said person who disclosed his name as Babu Lal. In the mean time, HC Randhir from Excise Department reached the spot and disclosed about a secret information regarding the recovered liquor. HC Ami Chand, who was on petrolling duty also arrived at the spot. All the cartoons were seized and the samples were drawn. The remaining bottles were kept in Four plastic kattas which were sealed with the seal of 'AC'. In the said background, FIR No. 373/08 under Section 61/1/14 of the Excise Act was registered at PS O.I.A.
3. The sealed samples were sent for chemical analysis and FIR No.373/08 2/14 on completion of the investigation, chargesheet was put to the Court. The copies of chargesheet were supplied to the accused and charge under Section 61/1/14 of Excise Act, 1961 was framed against her to which she pleaded not guilty and claimed trial.
4. The prosecution examined four witnesses.
5. PW1 Ct. Ravi Shankar (police official who deposited the samples at Excise Laboratory) has deposed that on 03.09.2008, he deposited the sealed samples at the Excise Laboratory. PW2 Ct Onkar(Recovery witness) has supported the recovery. He has mentioned that on 28.08.2008, he apprehended the accused along with the cartoons of illicit liquor. PW3 HC Randhir Singh (investigating officer) has mentioned that he reached the spot on the basis of the secret information. He stated that when he reached the spot, Ct. Onkar met him and handed over to him the accused and the recovered illicit liquor. PW4 HC Ami Chand (Investigating Officer) has deposed about the investigation part. He mentioned that the samples were drawn and the recovered cartoons were alloted serial no.1 to 16. He stated that the remaining bottles of illicit liquor were sealed with the seal of 'AC'.
FIR No.373/08 3/14
6. I have heard Ld. A.P.P. for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. A.P.P. has contended that prosecution has proved its case beyond shadow of doubt. He has argued that all the material witnesses have entered into witness box and they have fully supported the case of prosecution. He has also argued that minor contradictions are bound to appear in any criminal matter and in the case in hand, there is no material contradiction which may create any doubt about the authenticity and veracity of the prosecution case and all the documents have been duly proved.
8. Ld. Defence Counsel has assailed the case of the prosecution. It has been argued that there is no justification as to why independent witnesses were not joined in investigation despite the fact that the police was having prior information. He has also argued that there are material contradictions and discrepancies and the illicit liquor had been planted upon the accused.
9. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
FIR No.373/08 4/14
10. Two recovery witnesses have been cited viz. Constable Onkar Singh (PW2) and Head Constable Randhir Singh (PW3). Both of them have deposed on similar lines. They have mentioned that the illicit liquor was recovered from the possession of the accused. Ld. Defence Counsel has attacked the testimony of the recovery witnesses on the ground that it contains material contradictions. He has contended that no public witness was joined in the investigation and the testimony of the police officials is not reliable. Ct. Onkar has deposed that after he apprehended the accused, he was about to make a call at the PS when HC Randhir Singh from Excise Department reached the spot. He has mentioned about the arrival of HC Ami Chand stating that he also reached the spot during the course of his patrolling duty.
11. The record shows that there was ample time with the police officials to join an independent witness in the investigation. HC Ami Chand (PW4) has very casually mentioned that threefour public persons were requested to join the investigation, but they all declined and went away without revealing their names and addresses. He has stated that he did not give any notice to the public FIR No.373/08 5/14 witnesses, who refused to join the investigation. He has admitted in his cross examination that none of the neighbours of the accused were called to join the investigation. His said admission suggests that the jhuggi from where the purported recovery is stated to have been effected is surrounded by other jhuggies. The recovery was made at around 10.00 pm. Admittedly, the recovery has been made on 28.08.2008. It is matter of common knowledge that during the summer season, people remain active till late evening hours. The statement of the recovery witnesses that 45 passersby were requested to join the investigation clearly suggests the presence of public persons at the spot. The investigating officer has not joined any independent public witness despite availability. Stereo type version churned by the police officials does not inspire confidence. It casts doubt on the sincere efforts made by the investigating officer to join independent witnesses. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it has been held that such casual explanations that the public persons refused to join the proceedings are unreliable. Similarly, in Pradeep Narayan Vs. State of Maharashtra reported in AIR 1995 S.C. 1930, it was observed that FIR No.373/08 6/14 failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the accused.
12. The record shows that no public witness has been joined in the investigation. There was ample time with the police officials to join an independent witness in the investigation. It is not the prosecution's case that the police officials had no previous information about the accused. It is the prosecution's own story that a secret informer gave information to the police official that the accused would be coming to the spot along with the illicit liquor. HC Ami Chand and other recovery witnesses have very casually mentioned that public person were not willing to join the recovery proceedings. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it has been held that such casual explanations that the public persons refused to join the proceedings are unreliable. Similarly, in Pradeep Narayan Vs. State of Maharashtra reported in AIR 1995 S.C. 1930, it was observed that failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the FIR No.373/08 7/14 accused.
13. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses and more so, when they were available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating FIR No.373/08 8/14 agency did its best to persuade independent persons. HC Randhir has admitted in his cross examination that public persons were present at the spot but no written notice was issued to the public persons who refused to join the investigation. The said deposition casts doubts over the entire investigation. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under : "Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
14. Even when police come across any such offender by chance, they should not waste even a single second to call for corroboration from independent source more so when such persons FIR No.373/08 9/14 are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law.
15. The record further reveals that on the recovery memo, the FIR number has been mentioned. It is the case of the prosecution that these documents were prepared before the registration of FIR. HC Ami Chand (PW4) has categorically stated that the recovered bottles were seized vide memo Ex.PW2/A and thereafter, he FIR No.373/08 10/14 prepared the rukka Ex.PW4/A and handed it over to Ct. Onkar for registration of the FIR. Ct. Onkar (PW2) has deposed that he took the rukka to the PS and returned to the spot after getting the FIR registered. Thus, it is evident that the seizure memo Ex.PW2/A was prepared before registration of F.I.R. In case, it was prepared before the registration of the F.I.R., then how the FIR number has been mentioned therein. It has not been explained by the prosecution. In such circumstances, inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on. The said fact casts doubt over the credibility of the investigation.
16. The case property was produced during the examination of the witnesses. It was found that the plastic kattas were not carrying any seal. It is the onerous responsibility of the prosecution to establish that the case property was sealed properly and the seal remain intact. More particularly, when the possession of the case property in itself constitutes an offence.
17. The sealing of the case property is not a mere formality. It is a safeguard to ensure that the case property which was seized from the possession of the accused remains intact from the time it was FIR No.373/08 11/14 seized till the time it is produced in the court. The seal ensures that there is no possibility of tampering with the case property. The seized bottles of illicit liquor were deposited at the malkhana of the police station and the seal was also lying with the police officials. In such circumstances, the possibility of tampering can not be ruled out. In the present matter, it was found that the case property was not carrying any seal at all. The said fact is fatal for the prosecution's case. In such circumstances, it was felt that there was no point in examining the other witnesses. Even if the other witnesses would have been examined, they would have only reiterated the facts as narrated by the witnesses already examined. There was no point in proceeding ahead with a dead trial which would have ultimately resulted in acquittal. Once, it is proved on record that the seal of the seized illicit liquor has been tampered with then the prosecution can not secure a conviction.
18. In terms of deposition of HC Ami Chand (PW4), the seal after use was handed over by him to Ct. Onkar. However, no handing over memo has been prepared in this regard. The seal was kept by the police officials themselves and was not handed over to any FIR No.373/08 12/14 independent person. The prosecution has also failed to prove that the case property remained intact and was not tampered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station. No efforts were made to hand over the seal after use to independent public persons and in such cases, in view of the law laid down in the judgment titled as Saifullah Vs. State 1998 (1) CCC 497 (Delhi) and Abdul Gaffar Vs. State 1996 JCC 497 (Delhi) benefit of doubt has to be given to the accused.
19. There are number of infirmities in the version of the prosecution and missing links which creates doubt over the story of the prosecution. The material contradictions and discrepancies in the statement of the witnesses makes the version of the prosecution doubtful. The benefit of which ought to be given to accused. It is also observed that departure and arrivals of the police officials of the police station have not been proved to lend credence to the version of the prosecution.
20. In view of the above said discussion, I find it to be a fit case where accused Shanker Singh should be granted benefit of FIR No.373/08 13/14 doubt. Accordingly, accused Babu Lal is granted benefit of doubt and is acquitted of the charges under Section 61/1/14 of Excise Act, 1961.
21. Bail Bond stands cancelled. Surety stands discharged. Endorsement placed on the documents of the surety be cancelled and the same be returned to him, if retained on record. Case property be confiscated to the State and same be destroyed.
22. File be consigned to record room after necessary compliance.
Announced in open Court on this day of 14th December, 2011 (SUDHANSHU KAUSHIK) METROPOLITAN MAGISTRATE02 SOUTHEAST DISTRICT, SAKET COURTS, NEW DELHI FIR No.373/08 14/14