Delhi District Court
State vs . Sachin@Ajay on 21 February, 2015
IN THE COURT OF SHRI DEEPAK WASON:
ACMM: SOUTH-WEST: DWARKA COURTS: NEW DELHI
FIR No. 99/11
PS Dwarka Sector-23
U/s. 33 (a) & (f) of Delhi Excise Act, 2009
State Vs. Sachin@Ajay
Date of Institution of case:20.12.11
Date of Judgment reserved:21.02.15
Date of which Judgment pronounced:21.02.15
JUDGMENT
Unique ID No. :02405R0367592011
Date of commission of offence :26.07.11
Name of the complainant :HC Vijay Singh
Name and address of accused :Sachin@Ajay
S/o Sh. Raj Kumar
R/o H. no. M-39,
Raghuvir Nagar,
M-Block, Delhi.
Offence complained of :33(a)&(f) of Delhi Excise Act,2009
Plea of accused :Pleaded not guilty
Date of order :21.02.2015
Final order :Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under: Accused Sachin@Ajay, S/o Sh. Raj Kumar has been sent up for the trial for the offence U/s. 33 (a) & (f) of Delhi Excise Act, 2009 for the reason that on 26.07.2011 at about 6:15 p.m at Pochan Pur, Chhawla Road, New Delhi, he was found in possession of illicit liquor as per seizure memo Mark A which was kept in a vehicle no. DL-3CAW-2067 which was being driven by the accused and he was possessing the illicit liquor without any licence or permit and he thereby committed the offence punishable U/s. 33 (a) & (f) of Delhi Excise Act, 2009 and on the basis of which FIR no. 99/11 was registered at PS Dwarka Sector-23.
2. After investigation, chargesheet was filed against the accused & FIR no. 99/11 State Vs. Sachin@Ajay Page 1 of 8 after supplying the copies to him in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C) on 10.04.2012, a charge U/s. 33 (a) & (f) of Delhi Excise Act, 2009 was framed against the accused, to which accused pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined 6 witnesses.
4. PW-1 is Constable Rajesh Kumar. He has deposed that on 26.08.11, on the instruction of IC/AATS S/W District Sh. P.S. Rana, he collected the samples from malkhana of PS Dwarka Sector-23 vide RC no. 90/21 in a sealed condition and deposited the same at Excise Office, L-Block, Vikas Bhawan and returned the copy of RC to the MHC(M) PS Dwarka Sector-23. He has further deposed that he did not tamper with the case property in any manner during it remained in his possession.
5. PW-2 is Constable Satish Kumar. He is the witness of initial recovery and has deposed about the investigation proceedings conducted by him.
6. PW-3 is ASI Roop Singh. He is the Duty Officer and has proved the copy of FIR as Ex. PW-3/A and endorsement on the rukka as Ex. PW-3/B.
7. PW-4 is Head Constable Chattar Singh. He is the MHC(M) and has proved the entry made at serial no. 1872 in register no. 19 as Ex. PW-4/A. He has also proved the copy of RC as Ex. PW-4/B.
8. PW-5 is Head Constable Vijay Singh. He is also the witness of initial recovery and has deposed about the investigation FIR no. 99/11 State Vs. Sachin@Ajay Page 2 of 8 proceedings conducted by him.
9. PW-6 is ASI Shyam Singh. He is the second IO of the case and has deposed that on 26.07.11, he was posted at AATS and further investigation of the present case was marked to him. He has further deposed that after registration of the case, he reached at the spot i.e Pochanpur Chhawla road, where accused was handed over to him by HC Vijay. He has further deposed that during the course of his investigation, he prepared site plan Ex. PW-6/A at the instance of HC Vijay, case property as well as seizure memo was handed over to him. He has further deposed that accused was arrested and his personal search was conducted and disclosure statement of the accused was recorded vide memos Ex. PW-2/C, PW-2/D & PW-2/E. He has further deposed that during the course of his investigation, sample were sent to Excise Lab Ex. PW-6/B. He has further deposed that he recorded the statement of witnesses and after completion of investigation, challan was filed in the court through SHO.
10. As far as, Excise report is concerned, I take judicial notice of the same.
11. After the completion of prosecution evidence vide order dated 13.02.2015, statement of accused was recorded separately, in which he has submitted that he is innocent and has been falsely implicated in the present case and simultaneously stated that he does not want to lead defence evidence and matter was fixed for final arguments.
12. I have heard both the parties. Record perused.
FIR no. 99/11 State Vs. Sachin@Ajay Page 3 of 813. In the present matter, the accused has been charged U/s. 33 (a) & (f) of Delhi Excise Act, 2009 and to convict the accused, the prosecution has to prove that accused was found in possession of illicit liquor and in these circumstances, testimonies of recovery witnesses i.e PW-2 & PW-5 are material one.
14. Now, coming to the deposition of PW-2, who has deposed that on 26.07.11, HC Vijay Singh received a secret information from one secret informer that a person would arrive from the side of Gurgaon in a Swift car (silver colour) bearing no. DL-3CAW-2037 was having the possession of illicit liquor upon which, a raiding party was constituted comprising of himself, HC Vijay and secret informer. He has further deposed that at about 6:00 p.m to 6:15 p.m, they reached at the spot i.e on the road of Pochan Pur, Chhawla after crossing the Nala. He has further deposed that at about 6:15 p.m on the instance of secret informer, aforesaid car was got stopped. He has further deposed that the driver of the aforesaid car revealed his name as Sachin. He has further deposed that on checking, 29 cartons of illicit liquor of Murthal No. 1 and 10 cartons of illicit liquor of Besto Whisky were recovered. He has further deposed that thereafter, cartons of Murthal No. 1 were opened and on counting found 12 bottles of 750 ml in each carton and on checking the cartons of Besto Whiskey, 48 quarter bottles were recovered, out of which one bottle of Murthal no. 1 and one quarter bottle of Besto Whisky were removed as a specimen sample. He has further deposed that the remaining case property and samples were seized by the seal of BPS vide seizure memo Ex. PW-2/A and seal after use was handed over to him. He has further deposed that the aforesaid car was also seized vide seizure memo Ex. PW-2/B. He has further deposed that thereafter HC Vijay Singh prepared tehrir and got FIR no. 99/11 State Vs. Sachin@Ajay Page 4 of 8 the case registered through him and further investigation was assigned to HC Shyam Singh who visited the spot, prepared site plan on the instance of HC Vijay Singh, arrested the accused, conducted his personal search and recorded his disclosure statement. He was cross-examined at length by the Ld. counsel for the accused.
15. Further, PW-5 has deposed that on 26.07.11, one informer gave the information that one Sachin, who used to carry illegal liquor to Raghubir Nagar via Dwarka which information was given to Inspector Padam Singh Rana, who prepared a raiding party consisting of himself, Ct. Satish and secret informer and went to Village Pochan Pur where they requested 6-7 public persons to join the investigation but they refused to join the investigation and went away without disclosing their names and addresses. He has further deposed that they took their positions on the road from Chhawla to Pochan Pur Village and kept eyes on the vehicles plying the road. He has further deposed that the informer pointed out towards the car coming from the side of Chhawla and they intercepted the car and checked the car and found illegal liquor inside it. He has further deposed that they conducted the routine investigation, counted the cartons and found 29 cartons of Murthal No. 1 and 10 cartons of Besto Whisky and sealed the whole lot of liquor and send the information of the same to PS. He has further deposed that sample from each petti was taken out, sealed the case property with the seal of VPS vide memo Ex. PW-2/A, seized the car vide memo Ex. PW-2/B. He has further deposed that excise form was filled, he prepared the tehrir Ex. PW-5/A and got the case registered through Ct. Satish. He has further deposed that further investigation was carried by HC Shyam Singh. He was cross-examined by Ld. counsel for the FIR no. 99/11 State Vs. Sachin@Ajay Page 5 of 8 accused.
16. In the present case, the deposition of PW-2 & PW-5 show that some public persons were requested to join the proceedings but they refused. In these circumstances, like the present one, if public person would have refused to assist the member of police party, they could have served the said public witness with a notice in writing to join police proceedings but perusal of the record shows that nothing sort of this was done in the present case.
17. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
18. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the FIR no. 99/11 State Vs. Sachin@Ajay Page 6 of 8 ground that their joining will result into enmity between them and the petitioner".
"4. 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 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 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".
19. Hence, it creates doubt in the story of prosecution.
20. Further, in the present case, no efforts were made to hand over the seal after use in the presence of independent public persons and when the case property i.e 39 cartons were produced for the first time in the Court, it was observed by the court that 18 cartons were in unsealed and damaged condition and remaining cartons were with broken seals. Hence, the possibility of tampering the case property cannot be ruled out and in such cases, benefit of doubt has to be given to the accused.
21. Further, it is admitted fact that recovery memo was prepared FIR no. 99/11 State Vs. Sachin@Ajay Page 7 of 8 before the registration of the FIR. But the perusal of recovery memo shows that FIR number is mentioned at the top of it. It is a surprising fact that how the FIR number came at the top when the FIR was not registered at that time. These facts also give some doubt in the prosecution story.
22. Further, there are so many lacunas which are required to be discussed. According to the deposition of PW-2, he alongwith HC Vijay reached at the spot through his motorcycle and they used the same as the barrier by parking the same on the road for stopping the aforesaid Swift car. But, according to the deposition of PW-5, he alongwith Ct. Satish had gone at the spot in a car alongwith the informer. He has also deposed that the vehicle was stopped with the help of their car (make 800). Hence, it also creates doubt in the prosecution story. In view of the lacunas discussed above, I hold that the prosecution story is doubtful.
23. In view of the above said discussion, I am of the considered view that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Sachin@Ajay is acquitted from the charges U/s. 33 (a) & (f) of Delhi Excise Act, 2009.
24. Bail bond of accused is extended in terms of Section 437 A of Cr.P.C. File be consigned to Record Room.
(Deepak Wason) Addl. Chief Metropolitan Magistrate:
South-west: Dwarka Courts: New Delhi Announced in the open court today i.e on 21st February, 2015.FIR no. 99/11 State Vs. Sachin@Ajay Page 8 of 8 FIR No. 99/11
PS Dwarka Sector-23 U/s. 33 (a) & (f) of Delhi Excise Act, 2009 State Vs. Sachin@Ajay 21.02.2015 Present : Ld. substitute Addl. PP for the State.
Sh. Manish Sharma, Ld. counsel for the accused with accused Sachin@Ajay on bail.
Arguments heard. Record perused.
Vide separate judgment dictated to the steno in the open court, accused Sachin@Ajay is acquitted of the said offence U/s. 33 (a) & (f) of Delhi Excise Act, 2009.
At this stage, Sachin@Ajay is directed to furnish fresh bail bond in terms of Section 437 A of Cr.P.C in the sum of Rs. 20,000/- with one surety in the like amount.
At the request of Sachin@Ajay, his previous bail bond is extended in terms of Section 437 A of Cr.P.C.
File be consigned to Record Room, after due compliance.
(Deepak Wason) ACMM (SW): Dwarka Courts:
New Delhi: 21.02.2015 FIR no. 99/11 State Vs. Sachin@Ajay Page 9 of 8