Delhi District Court
State vs Tara on 12 October, 2011
IN THE COURT OF MS. SHUCHI LALER
METROPOLITAN MAGISTRATE - 04 : EAST:
KARKARDOOMA COURT : DELHI.
FIR No. 43/05
U/s 61/1/14 Punjab Excise Act
PS Vivek Vihar
STATE Vs TARA
JUDGMENT:
A Sr. No. of the case 02402R 032802 2005 B Date of institution 26/04/2005 C Date of commission of 07/02/2005 offence D Name of the complainant Ct. Dalbir Singh
E Name of the accused & Tara, w/o Lt. Sh. Lal Chand, r/o H. No. his parentage and 203, Gali No.4, Jwala Nagar, address Shahdara, Delhi. F Offence complained of U/s 61/1/14 Punjab Excise Act G Plea of the accused Pleaded not guilty H Order Reserved on 12/10/11 I Final order Acquitted J Date of such order 12/10/11 BRIEF FACTS AND REASONS FOR DECISION
1) The prosecution case, in brief, is that on 07.02.2005 at about 08.00 pm at Main Road, Jwala Nagar, in front of Shamshan Ghat, Delhi within the jurisdiction of PS Vivek Vihar, the accused Tara was found in possession of 7.50 litres of country made liquor, without any valid permit or license. After investigation, challan was filed by the police.
2) Complete set of copies was supplied to the accused and after hearing arguments, vide order dated 22.03.06, charge was framed FIR No. 43/05, PS: Vivek Vihar State Vs. Tara Page No... 1/8 against the accused for trial of offence U/S 61/1/14 Punjab Excise Act by the Ld. Predecessor to which the accused pleaded not guilty and claimed trial.
3) Prosecution in support of present case examined the following six witnesses.
(i) W/HC Nobardani appeared as PW-1 who deposed that on 07.02.05, at about 07:45 pm she along with Ct. Dalbir reached at Jwala Nagar Chowk, they saw that one lady was coming from the side of Kasturba Nagar side with a can. They stopped her and checked the can and smell of liquor was coming. On enquiry, she disclosed her name as Tara. In the meanwhile, IO HC Narender reached at the spot and they handed over the accused along with the recovered can to the IO HC Narender. IO asked 3-4 passers by to join the investigation, but none agreed. IO separated one quarter bottle as sample and the lid of can and sample bottle were sealed with the seal of NK. Form M-29 was filled and after use, the seal was handed over to Ct. Dalbir. IO recorded the statement of Ct. Dalbir and prepared the rukka Ex.PW-1/A and handed over the same to Ct. Dalbir for the registration of the case and after registration of the case, Ct. Dalbir came back at the spot and handed over the copy of FIR and original rukka to the IO. The case property was taken into possession vide seizure memo Ex.PW-1/B. IO prepared the site plan Ex.PW-1/C. The accused was arrested vide Memo Ex.PW-1/D. FIR No. 43/05, PS: Vivek Vihar State Vs. Tara Page No... 2/8 PW-1 conducted the personal search of the accused vide Memo Ex.PW-1/E. PW-1 correctly identified the case property i.e. Can Ex.P1. PW-1 denied the suggestion that nothing was recovered from the possession of the accused and she was deposing falsely.
(ii) DO ASI Kanta Prasad appeared as PW-2 who deposed that on 07.02.05, at about 10:10 pm, he received a rukka brought by Ct. Dalbir which was sent by HC Narender and on the basis of the same, he registered the FIR, Ex.PW-2/A. He made endorsement on the rukka Ex.PW-2/B.
(iii) HC Nagender appeared as PW-3 who deposed that on 23.02.05, he took one sample bottle along with Excise Form duly sealed vide RC No. 21/21 and deposited the same at Excise Lab, ITO and receipt of the same was handed over to MHC(M).
(iv) HC Satyavir Singh appeared as PW-4 who deposed that on 10.03.2005, the investigation of the present case was handed over to him by SHO PS Vivek Vihar. On 25.03.2005, he received the result from the Excise Lab, ITO and after completion of the investigation, the challan was filed.
(v) HC Narender Kumar appeared as PW-5 who deposed that on 07.02.05, on receiving DD No.50B, he along with W/HC Nobardani reached Near Shamshan Ghat, Jwala Nagart, where Ct. Dalbir met them and the accused along with the recovered can were handed over to him. PW-5 checked the can and smell of liquor was coming. FIR No. 43/05, PS: Vivek Vihar State Vs. Tara Page No... 3/8 He asked 3-4 passers by to join the investigation, but none agreed. PW-5 procured one plastic bucket, one mug, one empty bottle of 750 ml and one quarter bottle through Ct. Dalbir and measured the liquor which came to be 7.5 litres. PW-5 separated one quarter bottle as sample and the lid of can and sample bottle were sealed with the seal of NK. Form M-29 was filled and after use, the seal was handed over to Ct. Dalbir. The case property was taken into possession vide Memo Ex.PW-1/B. PW-5 recorded the statement of Ct. Dalbir Ex.PW-4/A and prepared the rukka Ex.PW-1/A and handed over the same to Ct. Dalbir for the registration of the case and after registration of the case, Ct. Dalbir came back at the spot and handed over the copy of FIR and original rukka to him. PW-5 prepared the site plan Ex.PW-1/C. The accused was arrested vide Memo Ex.PW-1/D and the personal search of the accused was conducted through W/HC Nobardani vide Memo Ex.PW-1/E. PW-5 recorded the statement of the witnesses. PW-5 correctly identified the accused and the case property i.e. Can Ex.P1. PW-5 denied the suggestion that nothing was recovered from the possession of the accused and he had obtained the signatures of Ct. Dalbir at PS. PW-5 further denied the suggestion that all the writing work was done while sitting at PS and the accused has been falsely implicated in the present case and he was deposing falsely.
(vi) HC Dalbir Singh appeared as PW-6 who deposed that on FIR No. 43/05, PS: Vivek Vihar State Vs. Tara Page No... 4/8 07.02.05, he was on patrolling duty and at about 07:45 pm when he reached at Shamshan Ghat, Jwala Nagar, he saw a lady was coming from Kasturba Nagar Main Road and on seeing him, she turned back and started to move fast. On suspicion, she was stopped and can was checked and smell of liquor was coming from the can. On enquiry, she disclosed her name as Tara. PW-6 informed the PS and IO HC Narender along with W/HC Nobardani came at the spot and the accused along with the recovered can were handed over to the IO. IO asked 3-4 passers by to join the investigation, but none agreed. IO procured one plastic bucket, one mug, one empty bottle of 750 ml and one quarter bottle through him and measured the liquor which came to be 7.0 litres. IO separated one quarter bottle as sample and the lid of can and sample bottle were sealed with the seal of NK. Form M-29 was filled and after use, the seal was handed over to him. The case property was taken into possession vide Memo Ex.PW-1/B. PW-5 recorded his statement Ex.PW-4/A and prepared the rukka Ex.PW-1/A and handed over the same to him for the registration of the case and after registration of the case, he came back at the spot and handed over the copy of FIR and original rukka to the IO. IO prepared the site plan Ex.PW-1/C. The accused was arrested vide Memo Ex.PW-1/D and the personal search of the accused was conducted through W/HC Nobardani vide Memo Ex.PW-1/E. IO recorded the statement of the witnesses. PW-6 FIR No. 43/05, PS: Vivek Vihar State Vs. Tara Page No... 5/8 correctly identified the accused. PW-6 denied the suggestion that all the writing work was done while sitting at PS and the accused has been falsely implicated in the present case and he was deposing falsely.
4) Statement of accused was recorded wherein she pleaded innocence and false implication in this case, however, she did not wish to examine any witness in support of her defence.
5) I have heard the Ld. APP for State and Ld. Defence Counsel and have perused the record.
6) To prove the charge U/S 61/1/14 Punjab Excise Act, the prosecution has to prove that the accused was found in possession of 7.5 litres of country made liquor, without any valid permit or license. First of all, no public witness has been joined by the IO in the present case despite availability. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completion of formalities at the spot but none of the public witness has been joined in the investigation. The explanation given by the prosecution in this regard is that the public persons had refused to join the investigation. In Roop Chand Vs. State of Haryana, 1990(1) CLR 69, it has been observed that such explanations that the public persons refused to join the proceedings are unreliable and in Pardeep Narayn Vs. State of Maharashtra, AIR 1995 SC 1930, it has been held that failure of police to join witness from locality during search FIR No. 43/05, PS: Vivek Vihar State Vs. Tara Page No... 6/8 creates doubt about fairness of the investigation, benefit of which has to go to the accused.
7) It is a settled proposition of law that Sub-section 4 to Sec. 100 of Cr.P.C. is a directory provision however, the explanation of non- joining of independent witness should also be plausible. The explanation put forth by the prosecution for non-joining of independent witness appears to be implausible for the reason that no notice whatsoever, was given to the persons refusing to join the investigation. The same creates doubt regarding the fairness of the investigation.
8) It is also noteworthy that most crucial part of the investigation has been conducted even prior to the registration of present FIR. PW-5 has deposed that he took out one quarter bottle liquor from the can as sample and the sample was sealed with the seal of NK and prepared the seizure memo Ex.PW-1/B. IO prepared the rukka which he handed over to PW-6 HC Dalbir Singh for the registration of the case. The record reveals that FIR number finds mention on the seizure memo Ex.PW-1/B. Admittedly, the Seizure memo was prepared before registration of FIR. When documents are prepared before registration of FIR and it contain the FIR number, the inference has to be drawn either FIR was recorded prior in time or the documents were prepared later on and in such case, benefit of doubt has to be given to the accused.
FIR No. 43/05, PS: Vivek Vihar State Vs. Tara Page No... 7/8
9) Further, no efforts whatsoever have been made by the prosecution to collect any clue about the source from where illicit liquor was arranged for by the accused. At least, some efforts must have been made by the police to interrogate the accused and conduct the requisite investigation to know as to from where the accused arranged the illicit liquor.
10)It is also worth mentioning that as per the case of the prosecution PW-6 was on patrolling duty at the time of incident. However, no DD entry in support of this fact has been placed on record. This further raises doubts about the prosecution story.
11)In view of the foregoing reasons, I am of the opinion that the prosecution has failed to prove its case against the accused, beyond reasonable doubt. Accordingly, I acquit the accused Tara for the offence punishable U/S 61/1/14 Punjab Excise Act in FIR No. 43/05 PS Vivek Vihar. Case property be confiscated to the State, as per rules. Bail Bond of accused shall remain in force and surety of the accused shall not be discharged for a period of six months in view of section 437A Cr.P.C.
File be consigned to Record Room.
Announced in the open court (SHUCHI LALER) today itself. MM/EAST/KKD/12.10.2011. FIR No. 43/05, PS: Vivek Vihar State Vs. Tara Page No... 8/8