Delhi District Court
Accused. In The Case Of Dhanpat vs . State Of Punjab 2000 (1) Cc Cases on 9 August, 2012
IN THE COURT OF MS. GOMATI MANOCHA, LD MM-04,
SOUTH EAST, SAKET COURTS, NEW DELHI
FIR No. : 06/02
P.S : Sangam Vihar
Date of commission of offence : 03.01.2002
Date of institution of challan : 06.03.2002
Name of complainant : Ct. Hoshiyar Singh
Name of accused : Ms Meera
W/o Sh. Suraj,
R/o H. no. K-II,/558,
Sangam Vihar,
New Delhi.
Offence complained of : U/s 61/1/14 Excise Act
Plea of the accused : Pleaded not Guilty.
Arguments heard/ order reserved : 09.08.2012
Final order : Acquitted.
Date of such order : 09.08.2012
Brief statement of the reasons for the decision:
1.The brief facts of the prosecution case are that on 03.01.2002, Ct. Hoshiyar Singh along with Ct Ramtek were on patrolling duty in the area near Veer Bazaar MCD Primary School. At about 04.50 p.m. they saw the accused coming from the side of the Jungle, carrying one plastic bag on her head. On suspicion, he checked the bag and found containing 50 pouches of illicit liquor. On information to the PS, Lady ASI Shanti came to the spot and the FIR no. 06/02 1/4 accused and recovered 50 pouches were handed over to her. After following appropriate procedure and registration of FIR, the accused was arrested.
2. On the conclusion of the investigation, the charge sheet was filed and copy was supplied to the accused. Charge was framed against the accused u/s 61/1/14 Excise Act to which she pleaded not guilty and claimed trial.
3. It order to prove its case, the prosecution has examined three witnesses.
4. PW-1 Ct. Hoshiyar Singh deposed that on 03.01.2002, he along with Ct Ramtek were on patrolling duty in the area near Veer Bazaar MCD Primary School. At about 04.50 p.m. he saw the accused carrying one plastic bag on her head and on suspicion, he checked the bag and found it containing 50 pouches of illicit liquor. He gave the information to the PS, and Lady ASI Shanti came to the spot to whom the accused and recovered 50 pouches were handed over by him. IO checked the case property and took out five pouches as sample and the remaining quarter bottles were kept inside the bag. IO sealed the samples and the remaining case property with the seal of 'KK'. Form M-29 was filled on the spot. He proved the seizure memo of the case property Ex. PW-1/A. He proved the site plan Ex. PW-1/C. He deposed that IO recorded his statement vide memo Ex PW1/C. At this stage, the MHC(M) has produced the case property. Seal is intact but the initials on the seal is not visible. The same is found containing 45 pouches. Case property identified Ex. P-1.
5. PW-2 ASI Shanti deposed that on 03.01.2002, on receiving DD entry No.14 A, she reached at the spot where she met Ct. Hoshiyar Singh and Ct Ramtek who handed over the accused and the recovered case property to her. She took out 5 pouches as sample and was put them in a plastic container and wrapped it with a white cloth and sealed it with the seal of KK and the remaining pouches were put in the same bag and sealed. The seal after used was handed over to Ct. Ramtek. She prepared the seizure memo Ex.PW1/A. Form M29 was filled at the spot. She recorded the statement of FIR no. 06/02 2/4 Ct. Hoshiyar Singh vide Ex PW1/C. She further deposed that she handed over the tehrir with endorsement to Ct. Ramtek who got the FIR registered. Accused was arrested and her personal search was conducted vide memo Ex PW1/E. She further deposed that case property was deposited with Malkhana and samples were sent through Ct Bijender to the Excise Laboratory.
6. PW-3 Ct. Bijender Singh, deposed that on 25.02.2002, he took the sample from the Malkhana to deposit the same in Excise Laboratory for chemical examination and same was deposited at Excise Office, Vikas Bhawan, ITO, New Delhi. He further deposed that he gave the receipt to the Malkhana Moharar.
7. Thereafter, PE was closed. In the statement of the accused, she denied all the incriminating evidence submitting that no recovery was made from her. She claimed innocence submitting that she was falsely implicated in this case.
8. I have heard the arguments of Ld. APP for the State and the accused and perused the record carefully.
9. In this case, the MHC(M) has produced the case property i.e. one plastic bag, however, the initials on the seal are not legible. The bag was found containing 45 pouches. Once the case property is not intact, the recovery of illicit liquor cannot be said to have been proved from the possession of the accused. In the case of Dhanpat Vs. State of Punjab 2000 (1) CC Cases HC 52, it has been held that in the absence of any link evidence that the property was deposited in the malkhana intact, accused is entitled to benefit of doubt.
10. Further, no public witness has been joined in the investigation. The testimony of official witness does not find corroboration from any independent source. In my view, the non-joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been FIR no. 06/02 3/4 given by prosecution for non joining of the public witnesses. In the case of Chanan Singh Vs. State 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought. Also, the FSL report has neither been referred to nor proved by any witness.
11. In these circumstances, there is reasonable doubt of the illicit liquor having been recovered from the possession of the accused. It being so, benefit of same is given to the accused. Hence, the accused Meera is acquitted of the charge u/s 61/1/14 Excise Act framed against her by giving her benefit of doubt. Case property be confiscated to the State and be destroyed after expiry of period of appeal. Personal bond and surety bond stand cancelled. Endorsement, if any, be cancelled. Documents, if any, be returned. File be consigned to record room after completion of necessary formalities.
Announced in the (GOMATI MANOCHA) Open Court on 09.08.2012 MM-04/ South East District
It is certified that this judgment contains four pages and each page bears my signature.
(GOMATI MANOCHA) MM-04/ South East District FIR no. 06/02 4/4 FIR no. 529/07 U/s 61/1/14 Excise Act PS- Sangam Vihar 09.08.2012 Present: Ld. APP for the state.
Accused Meera in person.
Statement of the accused recorded. Arguments heard. Now to come up for orders at 4.00 p.m. (GOMATI MANOCHA) M.M-04/SE/ 09.08.2012 At 4.00 p.m. Present: Ld. APP for the state.
Accused Meera in person.
Vide separate judgment of even date, the accused Meera is acquitted of the charge under Section 61/1/14 Excise Act. The accused is on bail. Her bail bonds are cancelled. Surety is discharged. Documents, if any, be returned to the surety after cancellation of endorsement. File be consigned to record room after due compliance.
(GOMATI MANOCHA) M.M-04/SE/ 09.08.2012 FIR no. 06/02 5/4 FIR no. 529/07 U/s 61/1/14 Excise Act PS- Sangam Vihar 08.08.2012 Statement of accused Somwati, W/o Tohi Ram u/s 281 r/w section 313 Cr.P.C.
WITHOUT OATH:-
All the incriminating evidence including documents exhibited by prosecution and the testimonies of the witness have been put to the accused and explained to him in Hindi. Accused denied all the allegations and documents exhibited by the prosecution and further submitted that he has been falsely implicated in this case. Accused further submitted that he ______ wants to lead defence evidence.
RO&AC (GOMATI MANOCHA)
M.M-04/SE/ 08.08.2012
Certified that the above statement of accused is recorded under my direct dictation and supervision. The same is true, correct and full version of the statement made by the accused.
(GOMATI MANOCHA) M.M-04/SE/ 08.08.2012 FIR no. 06/02 6/4