Delhi District Court
State vs . Vinod on 29 August, 2019
1
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 63/14
U/s 38 Delhi Excise Act
PS: Bh. Dairy
State vs. Vinod
Date of Institution of case:22.07.2014
Date of Judgment reserved: 29.08.2019
Date on which Judgment pronounced: 29.08.2019
JUDGMENT
Case Number : 5282172/16 Date of Commission : 08.02.2014 of offence Name of the : Ct. Vinit complainant Name and address of : Vinod S/o Sh. Ralu Ram R/o Gali no. 10, C Block, the accused Janta Vihar, M. Pur, Delhi Offence complained : 38 Delhi Excise Act of Plea of accused : Not guilty Final Order : Acquitted BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Vide this judgment I shall dispose of the allegations made against aforesaid accused for offence U/s 38 Delhi Excise Act in case FIR No. 63/14 of P.S. Bh. Dairy.
FIR No. 63/14 State Vs. Vinod Page 1 of 11 2
2. The brief facts of the case are that on 08.02.2014 at 10:35 a.m. at Ganda nala Pulia, Janta Vihar, Mukundpur, Delhi within the jurisdiction of Police Station Bhalaswa Dairy, accused was found in possession of four plastic kattas containing two patties in each katta of illicit liquor, out of which two kattas were having white colour patties containing 48 quarters (180 ml) each labled with "Besto Whiskey NV Group for sale in Arunanchal Pradesh only" and remaining two kattas were having brown colour patties containing 50 quarters each labled with "Asli Masaledar Desi Sharab for sale in Haryana only"
without any permit or licence. On the complaint of Constable Vinit, present FIR was registered for offence U/S 38 Delhi Excise Act.
3. After completion of investigation, the chargesheet was filed and cognizance was taken. Accused was summoned. And after procuring the presence of accused Vinod, the copy of charge sheet alongwith documents were supplied to the accused and the charge against the accused was framed for offence under Section 38 Delhi Excise Act to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of the accused prosecution examined three witnesses.
FIR No. 63/14 State Vs. Vinod Page 2 of 11 3
5. PW 1 ASI Narender Singh No. 3022N/W has deposed that that on 08.02.2014 at about 1:55 p.m. a rukka received by him from HC Mohan Lal through Ct. Vineet Kumar on the basis of which he registered present FIR vide computer generated copy Ex.PW 1/A which bears his signature at point A. At the relevant time, the computer system was working properly and the FIR was properly saved in the system after it was typed on it and then no tempring was made with the computerized record. He also made endorsement on the original rukka vide Ex. PW 1/B bears his signature at point A. Copy of FIR and original rukka were handed over to Ct. Vineet Kumar for handing over to the IO. He also executed the certificate regarding the genuineness of computerized FIR which is Ex.PW 1/C which bears his signature at point A. Cross examination was nil.
6. PW 2 HC Sanjay No. 6030/DAP has deposed that on 08.02.2014 he was posted as DD writer in PS Bhalswa Dairy from 8:00 a.m. to 8:00 p.m. On that day at about 11:15 a.m. he received a call from Ct. Vinit regarding recovery of liquor which he entered into rojnamcha vide DD no. 30B and informed HC Mohan Lal to take necessary action upon the same. He proved the DD no. 30B Ex. PW 2/A. He was cross examined by Ld. Defence counsel. FIR No. 63/14 State Vs. Vinod Page 3 of 11 4
7. PW 3 Ct. Vinit has deposed that on 08.02.2014 he was present in the beat no. 6 and patrolling the area. At about 10:30 a.m. when he reached Maharana Pratap Chowk, one public person informed him that one person was having illicit liquor in four plastic bags and was standing near pulia of Ganda Nala. He immediately went to spot where he found accused standing there with four plastic bags. His name was revealed as Vinod on interrogation. He tried to slip away from the spot. He apprehended him there and he informed DO of Bhalswa Dairy. HC Mohan Lal came to spot after some time. He handed over case property and accused to him. IO recorded his statement which is Ex. PW 3/A bearing his signature at point A. Then IO checked plastic bags. Two bags were found containing two cartons each of besto whiskey Brand for sale in Arunanchal Pradesh. Each carton was containing 48 quarter bottles. Other two plastic bags were containing two cartons and each carton was containing 50 quarter bottles of Asli Santra Masaledar Sharab, for sale in Haryana. IO gave plastic bags serial no. 1A to 4A. IO took out one quarter bottle from each carton. IO tied mouth of plastic bag and sample bottle with white cloth and sealed with the seal of ML and seized the same vide seizure memo Ex. PW 3/B bearing his signature at point A. He filled up M 29 form. Then IO interrogated accused and recorded his FIR No. 63/14 State Vs. Vinod Page 4 of 11 5 disclosure statement which is Ex.PW 3/C bearing his signature at point A. Then IO formally arrested and personally searched the accused vide memo Ex. PW 3/D and Ex.PW 3/E bearing his signature at point A. Accused and case property were taken to PS. Case property was deposited in Malkhana. Accused was put behind the bar in lockup. IO recorded his statement and relieved him from the spot. MHC(M) produced the case property outside the court room. Seals of three plastic bags were broken. Fourth bag was sealed, but seal was not legible. Witness identified the case property which is Ex. P1 to Ex.P4. Witness correctly identified the accused in court. Ld. Defence counsel cross examined the witness.
8. After the prosecution evidence was closed, accused was examined U/s 313 Cr.P.C. wherein all incriminating evidence were put to the accused to which he pleaded his innocence but denied to lead defence evidence.
9. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and have carefully perused the record.
10. It is argued by the Ld. APP for the state that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit FIR No. 63/14 State Vs. Vinod Page 5 of 11 6 liquor without permit. It is further stated that there are ocular and documentary evidence on record to bring home the guilt of the accused.
11. Per contra it is argued by the Ld. Counsel for the accused that non joinder of public witness despite availability cast shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused and that he is falsely implicated in present case. There are no independent evidence against him.
12. 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 defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
13. In present case prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery FIR No. 63/14 State Vs. Vinod Page 6 of 11 7 memo and testimony of the witnesses. Incident happened at 10:35 am and it is admitted fact that public persons were available at the spot which is evident from the testimony of PW 3, who deposed that public persons were present at the spot at the relevant time and it is also a matter of record that no public witness was joined during the investigation. It is further noteworthy that according to the testimony of PW3, one public person only informed PW 3 about the present accused carrying illicit liquor in some plastic bags and again this unknown public person was also never made a witness in the presnet case. Not only this neither was his name disclosed nor any specifications pertaining to him were ever brought to light and this per se raises scanner over the testimony of PW 3. It was held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
14. The another material thing which is required to discuss about the case of prosecution is that on 08.02.2014, PW3 was on patrolling duty near beat no. 6, FIR No. 63/14 State Vs. Vinod Page 7 of 11 8 Maharana Pratap Chowk, Bhalaswa Dairy, meaning thereby that at the relevant time, they were not in the PS and it seems that they were outside the PS, then as per Punjab Rules, they being on duty were required to enter their departure & arrival to & from the PS KNK Marg in the DD register of the said PS. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934: "22.49 Matters to be entered in Register No. IIThe following matters shall, amongst others, be entered:
(c)The hour of arrival and the 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 personality by signature or seal. Note: Lines & Police Posts, where Register no.II is maintained.
15. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW 3. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to established the presence of PW3 at the spot. Hence, it creates doubt in the prosecution story.
16. In present case, recovery memo and other documents were prepared before FIR No. 63/14 State Vs. Vinod Page 8 of 11 9 the registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, an inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused. In such circumstances fairness of investigation is doubted. Reliance can be placed on the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that "5. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
17. In present case the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent FIR No. 63/14 State Vs. Vinod Page 9 of 11 10 witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
18. It is further noteworthy that when the case property was first brought before the court during evidence, it was found that seals of three plastic bags were fond broken and the seal on the fourth bag was though intact but not legible and identifiable. Hence, the possibility of tempering with the case property cannot be ruled out. It is also pertinent to mention that PW 3 in his testimony deposed that form M29 was filled by him but he failed to depose as to in what capacity he filled the said form as the same does not have his signatures and the signatures appended upon it are that of the SHO. It is evident at this stage to state that neither the SHO was examined to depose in context of form 29 nor was the IO of the present case ever examined as he was FIR No. 63/14 State Vs. Vinod Page 10 of 11 11 stated to have expired.
19. Hence, in view of the aforesaid discussion and in the absence of any cogent evidence against the accused Vinod, he is hereby acquitted for offence under section 38 Delhi Excise Act. Case property be confiscated to the state as per rules and the same be destroyed.
File be consigned to record room.
Announced in open court today Digitally signed on 29.08.2019 RICHA by RICHA SHARMA SHARMA Date: 2019.08.29 14:41:24 +0530 (Richa Sharma) Metropolitan Magistrate North District Court/Delhi FIR No. 63/14 State Vs. Vinod Page 11 of 11