Delhi District Court
14. It Has Been Held In Case Of "Sadhu ... vs State Of Punjab" 1997(3) on 26 May, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Sunita
FIR No. 585/04
PS Paschim Vihar
U/s 61 Punjab Excise Act
JUDGMENT
C C No. : 300/03/05
Date of Institution : 02.06.2005
Date of Commission of Offence : 05.08.2004
Name of the complainant : Ct. Basti Ram No. 1759/W
Name & address of the accused : Sunita
W/o Rajesh
R/o Jhugg No. 354, BBlock
Meera Bagh, Paschim Vihar, Delhi
Offence complained of : U/s 61 Punjab Excise Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 28.04.2014
Date of announcing of judgment : 26.05.2014
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 61 Punjab State v. Sunita U/s 61 Punjab Excise Act FIR No. 585/04 PS Paschim Vihar Excise Act.
2. The briefly stated story of the prosecution is that on 05.08.2004 at about 7.35 pm at Jhuggi Meera Bagh, BBlock, Delhi the accused Sunita was found in possession of one plastic bag containing 50 quarter bottles of Bony Scott and 25 quarters of mastana brand of liquor without any permit or license and thus the accused is alleged to have committed an offence under Section 61 Punjab Excise Act. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter charge under Section 61 Punjab Excise Act was framed against her, vide order dated 12.04.2006 to which she pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined three witnesses i.e (1) HC Dev Singh (2) Ct. Basti Ram (3) Retired SI Randhir Singh
5. PW1 HC Dev Singh proved the FIR as Ex. PW1/A and endorsement on the rukka as Ex. PW1/B.
6. PW2 Ct. Basti Ram deposed that on 05.08.2004 he was posted at PS Paschim Vihar. On that day he was on patrolling duty and he was going to the Jhuggis of Meera Bagh, where he saw that a lady after looking at him entered her jhuggi and started closing the door. On suspicion he prevented her from doing so and he saw that behind the door one plastic bag was kept underneath State v. Sunita U/s 61 Punjab Excise Act FIR No. 585/04 PS Paschim Vihar the raddi. Mouth of the plastic bag was tied with a rope. On suspicion, witness took out the same and it was found containing illicit liquor. He got information recorded via telephone at PS and SI Randhir Singh arrived at the spot. He handed over accused, whose name was later on disclosed as Sunita, along with case property to the IO. On counting there were fifty quarters of bonnie scott and 25 quarters of Mastana were found in bag. Five quarters of each brand was taken out as sample and rest of the quarters were placed in the same katta and was sealed with the seal of RS. Mouth of the samples were also sealed individually with the help of cloth and sealed with the seal of RS. Seal after use was handed over to him. Form M29 was completed and the case property was seized by memo Ex. PW2/A. IO prepared a rukka and handed over to him. He went to PS, got the case registered and after registration of case returned at the spot with original rukka and copy of FIR and handed over the same to the IO. IO prepared the site plan at his instance. Accused was arrested vide memo Ex. PW2/B. Accused was released on bail at the spot. He identified the accused and the case property in the court. Case property is Ex. P1.
7. He called at PS from PCO nearby. He admitted that the PCO owner did not join the proceeding though he asked to do so. Few peoples around the jhuggis were also asked to join the investigation but none agreed and left away without disclosing their names and addresses. IO arrived at the spot after 10 State v. Sunita U/s 61 Punjab Excise Act FIR No. 585/04 PS Paschim Vihar minutes approximately. No lady constable arrived at the spot. He admitted that the signature on two documents are slightly different as at one point, it is the initial and on the other there is full signature of the witness. He did not remember the time of arrest of accused. It took two and half hour approximately in the completion of the proceedings at the spot. He signed arrest memo and seizure memo. Form M29 was prepared in triplicate.
8. PW3 Rt. SI Randhir Singh deposed that on 05.08.2006 he was posted as SI at PS Paschim Vihar. On that day he received DD no.18A Ex.PW3/A and thereafter he went to the spot i.e. BBlock, Meera Bagh Jhuggis, where he met with Ct. Basti Ram, who handed over him accused Sunita alongwith one sack. Witness asked 5/6 passersby to join the investigation but none agreed and left the spot without disclosing their names and addresses. He checked the sack and found 50 quarter bottles of Bonny Scot and 25 quarter bottles of Mastana Desi Sharab. He took 5 quarter bottles of Bonny Scot and 5 Quarter bottles of Mastana Desi Sharab as sample and rest were put back in the same sack. Sample as well as case property was sealed with the seal of 'RS'. Seal after use was handed over to Ct. Basti Ram. He filled form M29 at the spot, which is Ex.PW3/B. Case property was taken into possession vide seizure memo already Ex.PW2/A. Thereafter, he recorded the statement of Ct. Basti Ram Ex.PW1/B and prepared the rukka on the same. He handed over original rukka to Ct. Basti Ram, who went to PS Paschim Vihar and after registration of FIR State v. Sunita U/s 61 Punjab Excise Act FIR No. 585/04 PS Paschim Vihar came back at the spot alongwith original rukka and copy of FIR and handed over same to the witness. He arrested accused Sunita vide arrest memo Ex.PW2/B. He prepared the site plan Ex. PW3/C at the instance of Ct. Basti Ram. Accused was released on bail at the spot. Thereafter they went to PS Paschim Vihar where case property was deposited in Malkhana. He recorded the statement of witnesses and after completion of investigation he filed the charge sheet for judicial verdict. He tendered Excise Report Ex.PW3/D. He identified the accused and the case property in the court.
9. During cross examination, he stated that he reached at the spot at about 07:30 PM on his scooter. He admitted that spot was surrounded by residential houses. He admitted that he asked 5/6 passersby to join the investigation but none agreed and left the spot without disclosing their names and addresses. He admitted that no notice was served upon those public persons, who refused to join the investigation.
10. Thereafter, the PE was closed and statement of accused was recorded in which he denied all the allegations and pleaded innocence. No DE was led despite opportunity.
11. I have heard the brief submissions addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
12. The Ld. Counsel for accused has submitted that the investigation conducted by the IO is marred with loopholes and illegalities. Further, the accused was not State v. Sunita U/s 61 Punjab Excise Act FIR No. 585/04 PS Paschim Vihar arrested by a lady police officer as per the provisions of Cr.P.C. Hence, IO has flouted the legal provisions. He further submits that no public person was joined in investigation despite availability and no action was taken by the IO against those public persons also.
13. It is a cardinal principle of criminal jurisprudence that prosecution is supposed 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 reason doubt in the prosecution case entitles the accused to acquittal.
14. It has been held in case of "Sadhu Singh V/s State of Punjab" 1997(3) Crime 55 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."
15. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference: Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: State v. Sunita U/s 61 Punjab Excise Act FIR No. 585/04 PS Paschim Vihar ''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.
16. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entries regarding the arrival and 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 Delhi High Court "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."
17. As per story of prosecution, on 05.08.2004 at about 7.35 PM at Meera Bagh, Jhuggis, Delhi, the accused was found in possession of 75 quarter bottles of State v. Sunita U/s 61 Punjab Excise Act FIR No. 585/04 PS Paschim Vihar illicit liquor. As per PWs, the case property was duly sealed with the seal of RS and the seal after use was handed over to Ct. Basti Ram. However there is no memo/ case diary place on record to this effect.
18. No Public person has been made as a witness in the present case. Admittedly the place of incident was the residential area. However, no sincere efforts was made by the IO to persuade them to join the investigation. No notice was served upon the said witnesses.
19. 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 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 State v. Sunita U/s 61 Punjab Excise Act FIR No. 585/04 PS Paschim Vihar take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to 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 nonjoining 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''.
20. Hence, in view of the above, story of the prosecution becomes doubtful and the benefit of doubt certainly goes in favour of the accused. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused Sunita is acquitted for the charges punishable U/s 61 Punjab Excise Act levelled against her.
21. As per section 437A Cr.P.C accused is admitted to bail on her furnishing personal bond in the sum of Rs.10,000/ with one surety of like amount. ANNOUNCED ON 26.05.2014 (SAUMYA CHAUHAN) MM07(West)/ Tis Hazari Court /26.05.2014 Certified that this judgment contains 9 pages and each page bears my signatures.
(SAUMYA CHAUHAN)
MM07(West)/ Tis Hazari Court /26.05.2014
State v. Sunita U/s 61 Punjab Excise Act
FIR No. 585/04 PS Paschim Vihar