Delhi District Court
State vs . Rajan @ Kalu on 20 April, 2015
State vs. Rajan @ Kalu
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-01, EAST, KARKARDOOMA COURTS, DELHI
State vs. Rajan @ Kalu
FIR No. 299/05
U/sec. 61 Excise Act
PS: Gandhi Nagar
Date of institution of the case: 17.04.2006
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 20.04.2015
Unique I. D. No. 02402R0223992006
JUDGMENT
a) Sr. No. of the case : 51/3 b) Date of commission of the offence : 20.08.2005 c) Name of the complainant : Constable Subhash
d) Name of the accused and his parentage : Rajan @ Kalu S/o Sh. Ramesh Chand R/o H. No. 5586, Gali No. 014, Old Seelam Pur, Delhi.
e) Offence complained of or proved : 61-1-14 the Punjab Excise Act f) Plea of the accused : Pleaded not guilty g) Final order : Acquitted h) Date of such order : 20.04.2015
i) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 20.08.2005, Constable Tehjeeb Haider and Constable Subhash were patrolling in the area and at around 9.50 am apprehended the accused from the place Mark "A" in the site FIR No. 293/06 Page No. 1 of 12 State vs. Rajan @ Kalu plan with 05 liter cane of illicit liquor. In the meantime, Head Constable Birender Singh also reached the spot where Constable Subhash handed over the accused and illicit liquor to him. Thereafter, Head Constable Birender Singh recorded the statement of Constable Subhash/Ex.PW3/A, seized the illicit liquor after taking sample in a bottle vide seizure memo Ex. PW2/A, sealed the liquor and sample with the seal of "BS" and filled up the Excise Form M-29 Ex. PW5/A. Seal after use was handed over to Constable Tahjeeb Haider. Thereafter, he prepared the rukka and sent the tehrir through Constable Subhash to the Police Station on the basis whereof FIR bearing no. 299/05 Ex. PW1/A was registered against the accused and an endorsement Ex. PW1/B to this effect was made on the rukka. He came back at the spot after registration of the FIR. After registration of FIR, the IO/Head Constable Birender Singh conducted the personal search of accused vide Ex. PW2/D, arrested him vide arrest memo Ex. PW2/C, released him on his executing a bail bond, prepared the site plan/Ex.PW2/B, recorded the statement of witnesses' u/sec 161 of the Code of Criminal Procedure, 1973 (herein after referred to as the Act), deposited the case property in the Malkhana vide Ex. PW4/A. The sample was sent to the Excise Laboratory through Constable Jasvir Singh vide Ex. PW4/B. The result of Ethyl Alcohol was found positive by the Excise Control Laboratory.
After completion of the investigation, charge-sheet was filed before the court. Consequently, the accused was summoned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused as per norms.
Thereafter, the charge u/sec 61/1/14 the Punjab Excise Act, as extended to Delhi, was framed against the accused. The accused pleaded not guilty and claimed trial.FIR No. 293/06 Page No. 2 of 12
State vs. Rajan @ Kalu With a view to connect the accused with the crime, the prosecution has examined as many as five witnesses.
PW1/Woman Head Constable Suman Rana was the Duty Officer who recorded the FIR/Ex. PW1/A and made the endorsement Ex. PW1/B on the rukka.
PW2/Constable Tehjeeb Haider was patrolling in the area with the complainant Constable Subhash and apprehended the accused with illicit liquor.
PW3/Constable Subhash was the complainant, who set the criminal law into motion. He along with Constable Tehjeeb Haider was patrolling in the area and apprehended the accused Rajan @ Kalu with illicit liquor.
PW4/Sushil Kumar was the Moharar Head Constable (Malkhana). He proved deposit of sealed case property vide entry no. 1649-A in Register No. 19/Ex.PW4/A. He also proved the RC No. 180/21/05/Ex.PW4/B whereby the sample was sent through Constable Jasvir Singh to the Excise Laboratory for examination.
PW5/HC Birender Singh was the Investigating Officer and had conducted the investigation of the case. He recorded the statement of Constable Subhash, prepared the rukka and completed the other procedural formalities as per law (has already been discussed in the preceding paras).
During the course of trial, accused admitted the genuineness of the FSL result u/sec 292 of the Code.
Thereafter, PE was closed.FIR No. 293/06 Page No. 3 of 12
State vs. Rajan @ Kalu After completion of the prosecution evidence, statement of accused under sec. 313 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code) was recorded to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. He denied the allegations and pleaded false implications. He stated that case property was planted upon him. However, he did not lead any evidence in his defence.
This court has heard the rival submissions of the Ld. APP for State and ld. Defence counsel and perused the material on record very carefully.
It is the cardinal principle of Criminal Jurisprudence, that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove his guilt beyond a reasonable doubt. Therefore, the prosecution is under legal obligation, to prove each and every ingredient of the offence beyond any reasonable doubt. This general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution can succeed only on discharging its burden of proving the case against the accused. Strongest of suspicion, does not constitute the proof required. Keeping in view the principle of law laid down in cateena of judgments by the superior courts, now let us see, as to whether the prosecution has been able to prove its case, against the accused, beyond a reasonable doubt.
Ld. APP for the State has submitted that the prosecution has been able to prove its case beyond any shadow of doubt.
Per contra, Ld. Defence counsel has submitted that a false case has been foisted against him. Ld. Defence counsel has submitted that nothing was recovered from the possession of the accused and the case property i.e. the illicit liquor was planted upon him. In support of his contention, he has submitted that as per the FIR No. 293/06 Page No. 4 of 12 State vs. Rajan @ Kalu version of the prosecution, the complainant, who is a constable, was patrolling in the area where he apprehended the accused with 05 liters cane filled with illicit liquor but no DD Entry regarding the patrolling duty was proved by the prosecution on record.
The Punjab Police Rules provides that Register No. II shall be maintained in the Police Station and Rule 22.49 in Chapter 22 enumerates the matters to be entered in Register No. II. These include the following matters in clauses (c) of Rule 22.49, which are extracted herein below:
(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.
From the reading of the above mentioned rule, it is evident that all police officials irrespective of their rank are bound to record their arrival and departure entry at the time of leaving their office. The Hon'ble Delhi High Court while dealing with a similar situation in the case of Rattan Lal vs State 32 (1987) DLT 1=1987 (2) Crimes 29 observed as under:
"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."
However, in the present case no such DD entry is placed and proved on record by the prosecution to establish that the PW2/Constable Tahjeeb Haider, PW3/ FIR No. 293/06 Page No. 5 of 12 State vs. Rajan @ Kalu Constable Subhash and PW5/IO Head Constable Birender Singh were actually present in the area at the relevant time in connection with patrolling of the area.
In view of the above, I am of the considered view that the failure by the prosecution to bring on record the DD entries concerning the departure of PW2/Constable Tahjeeb Haider, PW3/Constable Subhash and PW5/IO Head Constable Birender Singh for patrolling duty casts a shadow of doubt on the genuineness of prosecution version.
Next, it is submitted by the ld. Defence counsel that Form-29/Ex.PW5/A, although allegedly filled up at the spot by the IO but the same was neither deposited in the Malkhana with the MHC (M) nor the same was sent to the Excise Laboratory along with the sealed sample.
In counter, ld substitute APP for the State drew the attention of the court towards the FSL result wherein it is mentioned that "...sample(s) one along with duly filled form M-29, in connection with FIR No. 299 dated 20.8.05 under IPC sec 61/1/14 Excise Act stated by you have been dispatched on 18.10.05 per messenger and duly received in this office on 18.10.05."
In reply, it is submitted by the ld. Counsel that it was a cyclostyle form and placed reliance on a judgment passed by the Hon'ble High Court of Delhi in the case of Rajan Ali vs The State (Delhi Administration) 81 (1999) DLT 194=1999 (50) DRJ 858 wherein it was held as under:-
"7. As is manifest from the depositions referred to above of inspector Dharam Pal Singh, PW-5, ASI Bakhatawar Singh, PW-6, HC Rajbir Singh, PW-2 and Constable Dharamvir Singh, PW-3 coupled with the said entry in Ex.PW2/A neither the CFSL form was deposited in the FIR No. 293/06 Page No. 6 of 12 State vs. Rajan @ Kalu malkhana nor sent alongwith the sample parcel to the of- fice of CFSL. It is true that a line in the cyclostyled re- port of the CFSL report Ex. PX does say that one sealed parcel was received with the seals of BS and DPS as per specimen enclosed but in view of the aforesaid evidence much significance cannot be attached to it as the same appears to have been made in a mechanical and routine manner. In the absence of the link evidence to the above effect the possibility of the sample being tempered with cannot be ruled out altogether. I am supported in this view by the decisions of this court in Safiullah Vs. State (Delhi Admn), 1993 JCC 33, Mool Chand Vs. State, 1993 JCC 234; Amarjit Singh and another Vs. State (Delhi Admn), 1995 JCC 91; Abdul Ghaffer Vs. The State (Delhi Admn),1996 JCC 497 and Berthe Djakarid- ja Vs. The state, 1998(1) JCC (Delhi) 62. The view taken by the trial court that it was for the appellant to have brought material on record to show that there was tem- pering with the seals of the sample parcel being erro- neous deserves to be discarded. Thus the orders convic- tion and sentence passed by the Additional Session Judge require to be set aside."
The Hon'ble Delhi High Court in the case of Balban Singh vs. State (Criminal Appeal No. 921/2005) while dealing with this issue observed as under:-
"....... this Court has explained the importance of ensuring that the FSL form is duly sent with the sample for testing. .....It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central forensic Science laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instant case, this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal FIR No. 293/06 Page No. 7 of 12 State vs. Rajan @ Kalu impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/ police station." (emphasis supplied) In Radha Kishan, after referring to the Delhi High Court Rules, Part III Chapter 18 B, regarding proper proof of custody of articles, it was held by this Court that the evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched.
PW4/MHC (M) Sushil Kumar had not stated anything about the deposition of Form-29 with the Malkhana Mohrara. PW4/MHC (M) except proving on record the entry made in Register No. 19 has not stated anything else. In Register No. 19 at Serial No. 1649-A, the seizure memo has been reproduced and it is not mentioned that Form-29/Ex.PW5/A was also deposited with the Malkhana Moharar.FIR No. 293/06 Page No. 8 of 12
State vs. Rajan @ Kalu Further, in the Road Certificate/Ex.PW4/B also there is no mention about the Excise Form and only sample has been shown to have been sent to the Excise Laboratory for examination.
Thus, by not depositing the Form-29 with the seized sample in the Malkhana and further not sending the same to the Excise Laboratory for examination creates doubt on the prosecution case.
Further, as per the prosecution story, Investigating Officer had separated one quar- ter bottle from 5 liter cane recovered from the accused and these were sealed with the seal of "BS" and the seal after use was handed over to Constable Tahjeeb Haider. Admittedly, no handing over memo or return memo of seal was prepared by the IO. There is no documentary evidence on record to show as to when the seal was returned by Constable Tahjeeb Haider to the Investigating Officer and so the same having been returned to the Investigating Officer at the same time cannot be ruled out. Therefore, the possibility of tempering with the contents of the sealed parcel cannot be ruled out.
Another fact which creates doubt on the genuineness of the prosecution case is that PW5/Investigating Officer after sealing the sample in the first instance handed it over to the MHC (M), who in turn handed it over to Constable Jasvir Singh, who deposited the sample in the Excise Laboratory, New Delhi. The Investigating Offi- cer does not state in his deposition that the sample was not tampered with so long as it remained in his custody. Similarly, even PW4/MHC (M) does not state so.
In these circumstances, I am clearly of the view that the prosecution has failed to prove this link evidence to show that the sample parcel was not tampered with by anyone before it was examined at Excise Control Laboratory, New Delhi and the benefit of the same must go to the accused.FIR No. 293/06 Page No. 9 of 12
State vs. Rajan @ Kalu Next, it was contended by the ld. Defence counsel that no independent witness was joined by the police despite availability and this fact creates a shadow of doubt on the genuineness of prosecution case. Ld. Defence counsel further argued that all the prosecution witnesses are interested witnesses and there is no independent corroboration to their statements.
PW5/IO Head Constable Birender Singh during his examination-in-chief has stated that he requested three-four passers-by to join the investigation but none agreed.
It is settled proposition of law that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency then unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public person was not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in absence of the independent public witnesses. In Ritesh Chakarvati vs. State 2006(4) RCR (Criminal) 480(SC), no effort was made to join an independent witness despite availability. The names of the persons from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held by the Hon'ble Supreme Court of India that the case of the prosecution was doubtful and ultimately, the accused was acquitted.
The principle of law, laid down in Ritesh Chakarvarti's case (supra) is fully applicable to the instant case. All these facts taken together make the prosecution case highly doubtful. Failure on the part of prosecution to make sincere efforts to join independent public witnesses in the proceedings when they were available creates reasonable doubt in the prosecution case.FIR No. 293/06 Page No. 10 of 12
State vs. Rajan @ Kalu Ld. Defence counsel has next contended that there is delay in sending the seized sample to the Excise Control Laboratory. In support of his contention, ld. Defence counsel has placed reliance on the judgment passed by the Hon'ble Delhi High Court in the case of Rishi Dev @ Onkar Singh vs. State. The Hon'ble Delhi High Court while dealing with the aspect of delay in sending the samples to CFSL had observed as under:-
"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
The ld. Defence counsel has stated that in the case of Rishi Dev (supra) delay in sending the sample for testing to the FSC was held fatal to the case of the prosecution since on the facts of case, the Hon'ble High Court was not satisfied that the seized sample was properly preserved during the period of the delay and that the sample sent for testing was the one that was seized.
Per contra, it is vehemently contended by the ld. APP for State that mere delay in sending the sample to the FSL, cannot be fatal to the case of the prosecution.
There is an unexplained delay of fifty nine days in sending the sample of the recovered liquor to the Excise Control Laboratory, Excise Department, Delhi. Although it is settled law that mere delay in sending the case property to the Laboratory is not fatal to the prosecution case per se, but in the instant case, in view of the above discussion, delay of 59 days in sending the sample for examination creates a shadow on the bona fides of the investigation and possibility FIR No. 293/06 Page No. 11 of 12 State vs. Rajan @ Kalu of the sample having been tampered with cannot be ruled out more so when there was a delay of two months in sending the sample to the office of the CFSL, Delhi.
Therefore, keeping in view the overall conspectus of the case, I am of the considered view that the prosecution has failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused. Therefore, I give benefit of doubt to the accused and accordingly, the accused Rajan @ Kalu is acquitted of the offence charged with. Bail Bond u/sec 437-A of the Code furnished. Perused and accepted for a period of six months from today.
The case property shall stand confiscated to the State and be disposed of as per rules.
File be consigned to record room after due compliance.
Announced in open (Babita Puniya)
Court on 20th day of April, 2015 MM-01/East/KKD Courts/Delhi
20.04.2015
This judgment contains 12 pages and each page bears my signature.
(Babita Puniya) MM-01/East/KKD Courts/Delhi 20.04.2015 FIR No. 293/06 Page No. 12 of 12