Delhi District Court
State vs . Kamal on 16 March, 2010
1
FIR No. 306/03
State vs. Kamal
IN THE COURT OF SH. SANDEEP GARG, METROPOLITAN
MAGISTRATE (CENTRAL)-05, DELHI
FIR No. 306/2003
U/s 61/1/14 Excise Act
PS- Nabi Karim
State Vs. Kamal
JUDGMENT:
a The Sl. No. of the case : 948/02
b The date of commission : 09.10.2003
c The name of complainant : HC Mahender Pal
d The name of accused : Kamal @ Sikander S/o
: Chander Bhan @ Pappu R/o
: House No. A-806, Prem
: Nagar, Nabi Karim, Delhi.
e The offence complained of : 61/1/14 Excise Act
f The plea of accused : Pleaded not guilty
g The final order : Acquitted
h The date of such order : 16.03.2010
i The date of institution
of the case : 02.06.2004
j Date of hearing final arguments
and final adjourning the matter
for orders : 16.03.2010
BRIEF REASONS FOR THE DECISION:
1. In brief, case of the prosecution against accused Kamal is that on 09.10.2003 at about 02:00 PM, at Kumar Khatta, Prem Nagar, Nabi Karim, Delhi within the jurisdiction of PS Nabi Karim, he was found in possession of one plastic can containing five litres of liquor in contravention of notification issued by Delhi Administration and without any license or permit and thereby, committed an offence punishable u/s 61/1/14 Punjab Page 1 of 10 2 FIR No. 306/03 State vs. Kamal Excise Act. On the basis of rukka sent by HC Mahender Pal, formal FIR, Ex. PW-3/A was registered for offence u/s 61/1/14 Punjab Excise Act. The case was investigated into. The investigation ended in the filing of the charge sheet u/s 173 Cr.P.C. charging the accused with the commission of an offence punishable u/s 61/1/14 Punjab Excise Act.
2. Vide order dated 20.04.2005, accused was charged for offence u/s 61/1/14 Punjab Excise Act to which he pleaded not guilty and claimed trial.
3. To substantiate its case on judicial file, prosecution has examined as many as four witnesses. PW-3 is ASI Sunita Bhalla, who being duty officer proved carbon copy of FIR, Ex. PW-3/A. PW-2 is HC Mahender Pal. He is the recovery witness and is the 1st IO of the case. PW-1 is Ct. Sibbal Chand, who was on patrolling duty along with HC Mahender Pal and is a recovery witness. PW-4 is HC Darshan Kumar, who is 2nd IO of the case. Vide order dated 12.03.2010, PE was closed and on 15.03.2010, statement of accused was recorded U/s 281/313 Cr.P.C. wherein accused denied the case of prosecution in toto. However, accused did not intend to lead DE.
4. I have heard Ld. APP for the State, the Ld. defence counsel and gone through case file very carefully.
5. It is submitted by Ld. APP for the State that by virtue of evidence available on judicial file, accused is liable to be convicted for the offence Page 2 of 10 3 FIR No. 306/03 State vs. Kamal punishable u/s 61/1/14 Punjab Excise Act. On the other hand, Ld. counsel for accused submits that the accused has been falsely implicated in the present case and he is totally innocent. It is submitted by Ld. Counsel for the accused that details of the Kabari shop from where quarter bottle for keeping the sample liquor was arranged for has not been brought on record. As per Ld. Defence counsel this fact is fatal to the case of prosecution.
6. I have gone through the material on judicial file very carefully.
7. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Page 3 of 10 4 FIR No. 306/03
8. In my opinion, as a cumulative effect of following reasons the accused is entitled to be acquitted of the charge against him:-
(a) 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.
In the present case, the above said provision appears to have not been complied with by prosecution. As per the prosecution version at the time of the apprehension of the accused with illicit liquor, in his possession HC Mahender Pal and Ct. Sibbal Chand were on area patrolling duty at Kura Khatta Area, Nabi Karim, at about 02:00 PM, but the DD entry vide which HC Mahender Pal and Ct. Sibbal Chand had left the PS for patrolling has not been brought on record. Even the number of the said DD entries made in Register No. II has not been brought on judicial record. In my opinion prosecution was under an obligation to prove on record, the above said DD Page 4 of 10 5 FIR No. 306/03 State vs. Kamal entries vide which HC Mahender Pal and Ct. Sibbal Chand had left the PS for patrolling duty so as to prove the possibility of availability of HC Mahender Pal and Ct. Sibbal Chand at the place of apprehension of the accused. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987(2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that 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.
9. In the present case, as per rukka after the apprehension of accused IO HC Mahender Pal had requested 4-5 passersbys to join the police proceedings but all left the spot without telling their names and addresses after giving reasonable excuses not joining the police proceedings. It is not worthy that HC Mahender Pal has not made a note of the excuses given by the passersby in the rukka Ex. PW-2/A. This failure on his part goes to suggest that he did not make sincere efforts to join the passers-by in the police proceedings. At least in the facts and circumstances of the present Page 5 of 10 6 FIR No. 306/03 State vs. Kamal case, HC Mahender Pal could have very well served the passersby the notice in writing requiring them to join the police proceedings or to face action 187 IPC in as much as in the present case there was no possibility of accused escaping his apprehension/arrest or crime going undetected in as much as by the said time, accused stood already apprehended by the police. Also in the present case, time of apprehension of accused is a routing evening time and it cannot be said that accused was apprehended at odd hours. Failure on the part of prosecution to make sincere efforts for joining independent public witness in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws. In a case law reported as Anoop Joshi V/s State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that 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 evident 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 shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shop- keepers 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".Page 6 of 10 7 FIR No. 306/03
State vs. Kamal In a case law reported as Roop Chand V/s The State of Haryana 1999 (1) C.L.R. 69, the Hon'ble 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 do so on the 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 provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-Page 7 of 10 8 FIR No. 306/03
State vs. Kamal 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".
In case law reported as Sadhu Singh vs State of Punjab, 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court observed as under:
"5. 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".
"6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
10. In the present case, seal after use on the case property and sample quarter bottle was given to Ct. Sibbal Chand who is a material prosecution witness being witness to the recovery of liquor from the possession of the Page 8 of 10 9 FIR No. 306/03 State vs. Kamal accused. To my mind, in such circumstances, chances of fabrication with the case property cannot be ruled out in as much as a material prosecution witness is always interested in the conviction of the accused. Further, it is pertinent to note that no memo has been placed on record showing the date and time when the seal was returned to PW HC Mahender Pal by PW Ct. Sibbal Chand. Even PW-1 Ct. Sibbal Chand is silent in this regard absolutely.
11. In the present case, as per prosecution story, one quarter bottle liquor was taken out as sample. Rukka is absolutely silent as to from where the quarter bottle for containing the sample liquor was arranged for. Even while appearing as PW-2 HC Mahender Pal has not disclosed the source from where sample quarter for containing sample was arranged. In my opinion, to inspire confidence in the prosecution story, IO must have disclosed the source of quarter bottle for containing sample liquor in the rukka itself.
13. In the present case, the MHC(M) at PS Nabi Karim with whom the case property and sample liquor was deposited has not been examined as a prosecution witness. To my mind, this failure on the part of prosecution is fatal for the case of prosecution in as much as in the absence of deposition of MHC(M) PS Nabi Karim, chances of fabrication with the case property cannot be ruled out beyond reasonable doubt. To rule out the possibility of Page 9 of 10 10 FIR No. 306/03 State vs. Kamal fabrication with case property, prosecution was under obligation to examine all the officers/officials possessing the case property/sample property with a specific positive deposition that so long as the case property/ sample property remained in their possession it was not tempered with.
13. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, accused is acquitted of the charge levelled against him. His bail bonds are cancelled. Surety is discharged. Original documents of surety, if any, be returned after cancellation of endorsement. Case property be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to Record Room.
Announced in the open (Sandeep Garg)
Court on 16.03.2010 MM(Central)-05,
Delhi.
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