Delhi District Court
State vs Smt. Sadhna on 25 January, 2007
IN THE COURT OF DR.SHAHABUDDIN:
METROPOLITAN MAGISTRATE: KARKARDOOMA
COURTS: DELHI
State V/s Smt. Sadhna
FIR No. 54/02
U/s 61 of Punjab Excise Act, 1914
PS: Dilshad Garden, Delhi
a) Sl. No. of the case : 56/2
b) Date of the commission : 28/02/02
of offence
c) Name of the complainant : Ct Sh. Gavinder Kumar
d) Name of the accused, her : (1) Smt. Sadhna, W/o
parentage and residence Sh. Sunil Kumar, R/o
A-B, Gali No. 1,
Jagatpuri Extension,
Delhi
e) Offence complained of or : Sec 61 of Punjab
proved Excise Act, 1914
f) Plea of the accused : Pleaded not guilty.
g) Final order : Acquitted
a) Sl. No. of the case : 56/2
h) Date of such order : 25/01/07
i) BRIEF STATEMENT OF THE REASONS FOR DECISION
1. The main facts of the prosecution case against
the accused are to the effect that on 28/02/02 at
about 12:05 p.m, at 30 Foot Road, near Gali No.1,
Jagatpuri Extension, Delhi, the accused was found in
possession of 30 pouches of country made liquor
without any licnece/permit and in contravention of
Notification of Delhi Administration. Hence, a charge-
sheet was filed against the accused for the offence U/s
61 of Punjab Excise Act, 1914 (in short called as
Punjab Excise Act hereinafter) after completion of the
entire investigation.
2. Accused appeared in the court and she was
supplied copies of documents in compliance to the
provisions of Sec. 207 of The Code of Criminal
Procedure, 1973 ( in short Cr.PC).
3. On 17/10/2003, a charge was framed against
the accused for the offence U/s 61 of Punjab Excise
Act to which she did not plead guilty and claimed
trial.
4. From the side of prosecution, PW1, Ct Sh.
Gavinder, PW2 W/HC Ms. Chameli, PW3 Ct Sh.
Kishan Sahay, PW4 HC Sh. Dimag Singh, PW5 Ct Sh.
Vijay Pal Singh and PW6 HC Sh. Subhash Chand were
examined and then remaining Prosecution Evidence
(in short referred to as P/E hereinafter) was closed.
5. Statement of accused was recorded on
23/01/07 U/s 313 Cr.P.C in which she denied the
allegations against her as false and incorrect and did
not want to lead Defence Evidence (in short D/E).
6. Oral final arguments were heard from Ld. APP
for state and from Ld. Defence Counsel, Sh. K.N.
Sharma on behalf of accused today itself i.e on
25/01/07.
7. The main submission of Ld. APP for state was
to the effect that on the basis of entire material on
record, the case stands well proved beyond reasonable
doubt against the accused for the offence for which
charge was framed against her and that she should be
punished strictly as per law.
8. On the other hand, the main submissions of
Ld. Defence Counsel, Sh. K.N. Sharma were to the
effect that no independent and reliable person was
joined by the Investigating Officer (in short called as
IO hereinafter) during investigation of this case nor
produced for evidence during trial; that there are
several material contradictions in the statements of
PWs examined in this case; that all the PWs examined
in this case are police officials and the conviction
cannot be held merely on the testimonies of police
officials alone in such like cases; that case property
was produced in tampered condition before this court
at the time of trial; that accused was falsely implicated
in this case; that nothing was recovered from the
possession of the accused; that she was lifted from her
house and later on false recovery of illicit liquor was
planted upon her in the P/S itself; that the case does
not stand proved at all against the accused for the
alleged offence. The Ld. Defence Counsel also relied
upon the following judgments namely:-
(i) 1987 C.C Cases (Delhi High Court) 585, titled as
''Pawan Kumar V/s Delhi Administration''.
(ii) 2000 (1) C.C Cases (Delhi High Court) 46, titled as
''Deshraj V/s State''
9. On the basis of above submissions and the
above cited judgments relied upon by Ld. Defence
Counsel, acquittal of the accused was prayed for.
10. I perused the entire judicial file minutely in
view of the above mentioned rival submissions.
11. Before proceeding further on merits of this
case, I consider it essential to refer to the provisions
of law for which charge was framed against the
accused in this matter.
12. Section 61 of Excise Act provides as under:-
''
61. Penalty for unlawful import, export,
transport, manufacture, possession, etc.
(1) Whosoever, in contravention of any Section of
this Act or of any rule, notification issued or given
thereunder or order made, or of any, license,
permit or pass granted under this Act.
(a) imports, exports, transports,
manufactures, collects or possesses any 1
(intoxicant); or
(b) constructs or works any distillery or
brewery; or
(c) uses, keeps, or has in his possession any
material, still, utensil, implement or apparatus
whatever, for the purpose of manufacturing any
(intoxicant) other than tari: shall be punishable for
every such offence with imprisonment for a term
which may extend to 2 (three years) 3 [and with fine
upto two thousand rupees and if found in
possession of a working still for the manufacture of
any 1 (intoxicant) shall be punishable with the
minimum sentence of six months imprisonment
and fine of two hundred rupees]''.
13. Now turning to the evidence on record, PW1 Ct
Sh. Gavinder admitted in his cross-examination that
IO did not put any serial number or mark of
identification on alleged pouches recovered from the
possession of the accused; that the IO had not put
any case particulars on the plastic bag containing
alleged case property in his presence; that he was not
in a position to identify the case property if mixed up
with similar type of pouches; that he could not tell the
name of the STD booth from where he made telephone
call regarding this case to the police station; that all
the writing work was done while sitting on the bench
but he could not tell the name of the owner of the said
'rehdiwala' from where the table/bench was taken;
that IO called public persons, who were coming and
going to join the investigation but they did not join the
same; that plastic bag containing the case property
did not bear the particulars of the case property. In
this way, the case does not stand proved at all against
the accused on the basis of testimony of this witness.
14. PW2 lady Ct Ms. Chameli and PW3 Ct Sh.
Kishan Sahay deposed almost on the same lines as
that of the deposition of PW1 and the case does not
stand proved at all on the basis of their testimonies
also for the alleged offence against the accused.
15. PW4 HC Sh. Dimag Singh happens to be the
IO of this case. In his examination-in-chief, he
deposed regarding various steps taken by him during
investigation of this matter. In his cross-examination
conducted by Ld. Defence Counsel, he admitted that
he had not put any signatures or serial number or
any mark of identification on the alleged pouches
recovered from the possession of the accused; that it
was impossible to identify the case property if mixed
up with the similar type of pouches; that particulars
of FIR number, etc were not put on the bag containing
the case property produced on the date of his
deposition before this court on 25/04/05; that he
could not tell as to when the seal was returned to him
by the Constable; that he had not taken sample
pulanda from MHC(M) for giving the same to be
deposited in the excise laboratory, Delhi; that he
reached at the spot after about 2-2½ hours. In his
examination-in-chief, he himself admitted that he
requested 2/3 public persons to join investigation but
they did not join and went away telling their personal
difficulties. In this way, the testimony of this witness
is also not sufficient to connect the accused herein
with the commission of crime beyond reasonable
doubt. He himself admitted that independent and
reliable persons were present at the spot but they did
not join the investigation. No satisfactory explanation
had been given by him as to why no legal action had
been taken against these persons, who refused to join
the investigation despite being asked to join the same.
16. One of the main contentions of Ld. Defence
Counsel during the course of oral final arguments was
that no independent and reliable persons of the spot
were joined by the IO concerned during investigation
of this case despite their presence at the spot and that
such public persons were also not produced for their
depositions during trial of this case. I find force in this
contention of Ld. Defence Counsel. This fact has been
admitted by the IO himself as well as by other PWs. In
this regard, I further find support from an
important judgment of Hon'blePunjab and Haryana
High Court given in a case, namely, ''
Darshan Singh
reported as 1997 (3) Crimes,
V/S State of Haryana''
Page-392. In para-6 of this judgment, the Hon'ble
Punjab and Haryana High Court held as under:-
''
6. The recovery had been effected at the bus
stand. Large number of persons pass-through
that place. There are shops nearby. It is
somewhat surprising that still the explanation is
forthcoming that the witnesses from the public
were not available. The only conclusion that can
be drawn in such a situation is that no genuine
attempt or even an attempt to join the public
witnesses was made. When genuine attempt has
not been made to join the public witnesses, one is
constrained to observe that in the facts of the
present case, it is difficult to believe the official
witnesses.''
17. There is also an important judgment of Hon'ble
Supreme Court of India on this point given in a case
namely ''
Pardeep Narayan, etc V/s State of
reported as 1995 (2) CC Cases, Page-
Maharashtra''
133 (Supreme Court). The Hon'bleApex Court also
emphasised in this case the necessity of independent
and reliable person of the locality. The ratio of
Darshan Singh'
s Case (Supra) and Pardeep Narayan'
s
case (Supra) is found fully applicable to the case
under discussion.
18. PW5 Ct Sh. Vijay Pal Singh is a formal witness
as he deposited the sealed 'pulanda'containing the
alleged case property at the excise office, Vikas Marg,
ITO, New Delhi.
19. PW6 HC Sh. Subhash Chand also appears to
be a formal witness as he recorded FIR in this case of
which copy is on record as Ex. PW6/A. No other PW
was examined on behalf of the state in this matter
despite sufficient opportunities given for P/E from
time to time.
20. The other main contention of Ld. Counsel for
accused during oral final arguments was to the effect
that there was great delay in sending the parcel of the
case property by Malkhana Mohrar to excise
laboratory at Delhi and that Malkhana Mohrar was
also not examined in this matter in support of this
fact to the contrary. The Ld. Defence Counsel also
relied upon the judgment of Deshraj V/s State (Supra)
in support of this contention. I find force in this
contention of Ld. Defence Counsel. Admittedly, the
Malkhana Mohrar pertaining to this matter was not
produced for his deposition and the case property of
this matter was also deposited at the excise laboratory
at Delhi at a delayed stage. Hence, the law laid down
by Hon'bleDelhi High Court in Deshraj'
s Case (Supra)
applies equally to the facts and circumstances of the
case under discussion.
21. The other main contention of Ld. Defence
Counsel was that sealed pulanda containing the
alleged case property when produced before this court
during trial did not bear the complete particulars of
the case and that it was also a serious lapse on the
part of the prosecution. In support of this contention,
the Ld. Defence Counsel further relied upon the
s Case (Supra). As per own
judgment of Pawan Kumar'
admission of the IO and other PWs examined in this
case, the particulars on the sealed pulanda containing
the case property like FIR, etc were not mentioned on
the same and no satisfactory explanation was given
for the same. It is a serious lapse on the part of the
prosecution. Hence, the authority of Pawan Kumar'
s
Case (Supra) applies to all fours of the instant case.
22. The Ld. Defence Counsel also relied upon a
judgment namely ''
Dhanpat V/s Haryana''reported
as 2000 (1) C.C Cases (Punjab & Haryana High Court)
52 in support of the facts that there was no link
evidence that the case property was really deposited
in the Malkhana and further that there was no
independent corroboration of the testimonies of
official witnesses. On the basis of entire material on
record, I am of the considered opinion that the ratio of
s Case (Supra) also applies equally to the
Dhanpat'
facts and circumstances of the case under discussion
because no reliable witness has deposed in this mater
to the effect that the case property was really
deposited untampered in police Malkhana as per
rules. Further, there is no independent corroboration
to the deposition of police witnesses examined in this
case.
23. Even the Chemical Examiner, who examined
the samples of case property, has not been produced
by the prosecution side to depose in support of the
report prepared by him regarding the sample allegedly
sent for chemical examination in the excise
laboratory, Delhi and no satisfactory explanation has
been given for this serious lapse on the part of the
prosecution.
24. The other main contention of Ld. Defence
Counsel was that only police officials have
deposed in this case and the conviction cannot
be held merely on the basis of testimonies of
police officials alone in such like cases. I find force
in this contention also of Ld. Defence Counsel. In
this regard, I further find support from an
important judgment of Honb'le Supreme Court of
India given in a case namely, ''
Sanspal Singh V/s
State of Delhi'',1999 Crl.L.J., Page-19 (Supreme
Court). In this judgment, the Hon'bleApex Court held
mainly to the effect that recovery of the arms was
based on evidence of police officials alone and that no
public witnesses were associated to witness the
recovery even though such witnesses were available
and hence the conviction on the basis of the evidence of
the police officials alone was not found maintainable
by the Hon'ble Apex Court in that case
.
25. There is yet another important judgment of Hon'bleDelhi High Court on this point given in a case namely, '' 1988 Crl.L.J, Page-
Jagdish Rai V/s State'', 785 (Delhi High Court). In this judgment, the Hon'ble Delhi High Court held mainly to the effect that prosecution story depended exclusively on the evidence of the police officials which was held to be unworthy of credit and hence conviction of the accused was set aside in that case on this ground.
26. There is yet another judgment of Hon'bleDelhi High Court on this point given in a case namely, '' Pawan Kumar V/s Delhi Administration'',1989 Crl. L.J, Page-127 (Delhi High Court). The Hon'ble Delhi High Court held in this case mainly to the effect that the I/O concerned did not make earnest efforts to join independent witnesses and in those circumstances, the recovery of the knife from the accused was considered doubtful in that case by the Hon'bleDelhi High Court and hence the accused was acquitted.
27. In my considered opinion, the ratio of the judgments given in Sanspal Singh' s Case (Supra), Jagdish Rai' s Case (Supra) and Pawan Kumar' s Case (Supra) applies equally to the case under discussion because the IO in the present case also did not make any sincere efforts to join any public witnesses during the course of investigation.
28. On the basis of above discussion and entire material on record including oral as well as documentary evidence on record, I am of the considered opinion that the prosecution side has miserably failed to prove the case against the accused herein beyond reasonable doubt. Hence, the accused is entitled to be acquitted. Accordingly, accused namely Smt. Sadhna, W/o Sh. Sunil Kumar is hereby acquitted for the offence U/s 61 of Punjab Excise Act. Her bail bonds are discharged and her surety also discharged. Case property be destroyed/disposed of as per rules after expiry of period of appeal/revision, as the case may be. File be consigned to Record Room as per rules after expiry of period of appeal/revision, as the case may be.
ANNOUNCED IN THE OPEN COURT TODAY i.e on 25/01/07 (DR. SHAHABUDDIN) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI