Delhi District Court
Accused To Acquittal. It Has Been Held In ... vs State on 6 April, 2019
IN THE COURT OF MS. DEEPIKA SINGH,
METROPOLITAN MAGISTRATE-06, WEST, TIS HAZARI COURT
State v. Videsh & Anr.
FIR No. 256/18
PS Mundka
U/s 33/38/52(2) Delhi Excise Act
JUDGMENT
Case No. : 6009/18
Date of Institution : 08.08.2018
Date of Commission of Offence : 09.06.2018
Name of the complainant : Ct. Amit.
Name & address of the accused : 1) Videsh
S/o Dharambir
R/o E-95, Friends Enclave, Railway
Colony, Mundka, Delhi.
2) Pawan Kumar
S/o Sh. Balwan
R/o H. No. 370, village Mundka,
Delhi.
Offence complained of : U/s 33/38/52(2) Delhi Excise Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of announcing of judgment : 06.04.2019
State v.Videsh & Anr. U/s 33/38/52 of the Delhi Excise Act 1/8
FIR No. 256/18 PS Mundka
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment, this court shall decide the present case under Section 33/38/52(2) of Delhi Excise Act, 2009.
2. The briefly stated story of the prosecution is that on 09.06.2018 at about 8.00 pm at Rohtak Road, Delhi, accused Videsh was found in possession of a motorycle bearing no. DL10 SE 2424 loaded with illicit liquor, as per seizure memo, which were seized, without any permit or licence. The aforesaid vehicle was registered in the name of accused Pawan Kumar. Thus, the accused persons are alleged to have committed an offence under Section 33/38/52(2) of the Delhi Excise Act, 2009. FIR was lodged on the basis of rukka and investigation was carried out.
3. Charge sheet was filed against the accused persons in the court. Copy of charge-sheet and other relevant documents were supplied to the accused persons. Charge under Section 33/38/52(2) Delhi Excise Act was framed against the accused persons vide order dated 10.09.2018, to which they pleaded not guilty and claimed trial.
4. In order to prove the case against the accused persons, the prosecution has examined two witness.
5. PW-1 ASI Sri Bhagwan is the duty officer who proved copy of FIR Ex. PW1/A, endorsement on rukka Ex. PW1/B and a certificate u/s 65B State v.Videsh & Anr. U/s 33/38/52 of the Delhi Excise Act 2/8 FIR No. 256/18 PS Mundka Indian Evidence Act Ex. PW1/C.
6. PW-2 is Ct. Amit who deposed that on 09.06.2018, he alongwith Ct. Vikramaditya was on patrolling duty at Rohtak Road. At about 7.30 PM, a secret information was passed that one person will come from the side of Bahadurgarh on motorcycle who is having liquor. At about 8 PM, one motorcycle No. DL10S E 2424 Black Pulsar, came from the wrong side of Bahadurgarh. Informer pointed out towards the motorcycle. Same was stopped which was being driven by accused Videsh. A Katta was lying on the motorcycle which contained quarter bottles of liquor. Information was sent to the PS and HC Krishan came to the spot. They handed over the accused motorcycle with Katta to the IO. IO asked 4-5 persons to join the proceedings but they refused. Katta was checked and 150 quarter bottles of liquor were found. One quarter bottle was taken out as sample. Form M 29 filled at the spot. Katta and sample bottle were duly sealed with the seal of KKR. Seal after use was handed over to Ct. Vikramaditya. Liquor was taken into possession vide seizure memo Ex. PW2/A and motorcycle was taken into possession vide memo Ex. PW2/B. Rukka was prepared and handed over to PW1 for registration of FIR. FIR was registered. Accused was arrested vide memo Ex. PW2/D and personally searched vide memo Ex. PW2/E. State v.Videsh & Anr. U/s 33/38/52 of the Delhi Excise Act 3/8 FIR No. 256/18 PS Mundka
7. PW-3 is Ct. Rajbir who proved DD no. 50B Ex. PW3/A.
8. Thereafter, the prosecution evidence was closed. Statement of accused persons were recorded wherein they denied all the allegations and pleaded innocence. No defence evidence was led by the accused persons.
9. I have heard the submissions addressed by the Learned APP for State and by the Learned Counsel for accused persons and carefully perused the record.
10. Learned Defence Counsel has submitted that the accused persons have been falsely implicated in this case. No public person was joined in the investigation despite availability.
11. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the State v.Videsh & Anr. U/s 33/38/52 of the Delhi Excise Act 4/8 FIR No. 256/18 PS Mundka accused to acquittal. It has been held in case of "Sadhu Singh V/s State of Punjab" 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
12. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides 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 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."
13. In the present case, the above said provision have not been complied with by prosecution. The relevant entries regarding the arrival and State v.Videsh & Anr. U/s 33/38/52 of the Delhi Excise Act 5/8 FIR No. 256/18 PS Mundka departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal V/s State" 1987 (2) Crimes 29 wherein it was held by the Hon'ble High Court of Delhi, "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. Also, no Public person has been made as a witness in the present case. Admittedly, the spot was a public area and public persons were present at the spot, however, no sincere efforts was made by the IO to persuade them to join the investigation. No notice was served upon the said witnesses. It has been held in "Roop Chand V/s The State of Haryana",1999 (1) C.L.R 69, by the Hon'ble Punjab & Haryana High Court that:-
"It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are 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 State v.Videsh & Anr. U/s 33/38/52 of the Delhi Excise Act 6/8 FIR No. 256/18 PS Mundka 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 Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions 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''.
15. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of KKR and handed over to Ct. Amit. Also, the seal was neither handed over to independent witness nor deposited in malkhana. No explanation has come on record as to why seal was not handed over to an independent witness.
16. In view of the above discussion, court is of the considered opinion that story of the prosecution has become doubtful and the benefit of doubt certainly goes in favour of the accused. The prosecution has failed to prove its case State v.Videsh & Anr. U/s 33/38/52 of the Delhi Excise Act 7/8 FIR No. 256/18 PS Mundka beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused Videsh is acquitted for the charges punishable U/s 33/38 of Delhi Excise Act levelled against him. Accused Pawan is acquitted for the charges punishable U/s 52(2) of Delhi Excise Act levelled against him.
17. As per section 437A Cr.P.C accused persons are admitted to bail on their furnishing personal bonds in the sum of Rs.20,000/- each with one surety of like amount each.
18. File be consigned to the record room after due compliance. Digitally signed by DEEPIKA DEEPIKA SINGH Announced in open court on 06.04.2019. SINGH Date:
2019.04.08 15:58:12 +0530 Certified that this judgment contains (Deepika Singh) 08 pages and each page bears MM-06, (West) my signature. THC, Delhi State v.Videsh & Anr. U/s 33/38/52 of the Delhi Excise Act 8/8 FIR No. 256/18 PS Mundka