Delhi District Court
State vs . Smt. Surender Kaur on 7 June, 2013
STATE vs. SMT. SURENDER KAUR
IN THE COURT OF SH. RAVINDER SINGH, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE (SHAHDARA), KKD
COURTS DELHI.
State vs. Smt. Surender Kaur
FIR No. 205/08
PS : Anand Vihar
U/s 61/1/14 Punjab Excise Act
State vs. Smt. Surender Kaur
JUDGEMENT
a) Serial No. of the case : 02402R0450322008
b) Date of Institution : 24.06.2008
c) Date of commission of offence : 18.04.2008
d) Name of complainant : Ct. Rajender Singh
e) Name of the accused, and : : Smt. Surender Kaur
parentage and address W/o Late Sh. Dharmender
R/o 28/177, Kasturba
Nagar, Delhi.
f) Offence complained of : U/s 61/1/14 Punjab Excise
Act
g) Plea of the accused : Pleaded not guilty
h) Date of judgment reserved : Not reserved
i) Final order : Acquittal
j) Date of such Order : 07.06.2013
Brief reasons for the decision of the case
1. The case of prosecution is that on 18.04.2008 at 01.00 P.M FIR NO. 205/08 PAGE 1/9 STATE vs. SMT. SURENDER KAUR near Neepali Mandir, Karkari Road, Viswas Nagar, Delhi the accused was found in possession of 20 litres of illicit liquor without any license or permit by Ct. Rajender Singh who was on petrolling duty so his statement was recorded and therefore case FIR no. 205/2008 was registered in PS Anand Vihar against the accused U/S 61/1/14 of Punjab Excise Act. Statement of witnesses were recorded, site plan was prepared, accused was arrested and after completion of all necessary investigation challan U/S 173 Cr. P.C was presented in the court for trial.
2. Accused was summoned to face trial so copy of challan as required U/S 207 Cr.P.C, was supplied to him. Thereafter case was fixed for consideration of charge.
3. After hearing arguments and on perusal of record, prima facie charge for the offence under section 61/1/14 of Punjab Excise Act was made out against the accused. Charge was framed accordingly against the accused on 15.01.2010. Thereafter case was fixed for prosecution evidence.
4. In support of its case, prosecution has produced and examined six witnesses namely ASI Veena as PW1, Ct. Rajender Singh as PW2, HC. Akhilesh Kumar as PW3, Lady Ct. Sheela as PW4, HC Sanjeev FIR NO. 205/08 PAGE 2/9 STATE vs. SMT. SURENDER KAUR Kumar as PW5 and HC Surender Pal as PW6.
4A. PW1 deposed that she recorded case FIR no. 205/08 Ex.PW1/A on receipt of rukka from Ct. Rajender and made her endorsement on rukka Ex.PW1/B. 4B. PW2 is the witness of recovery of illicit liquor in can and arrest of accused. He deposed that on 18.04.2008, he was on petrolling duty and at about 01.00 P.M, he saw a lady with plastic can on her hand who was coming towards Vishwas Nagar but when she saw him, she turned back so on suspicion he apprehended her with can containing illicit liquor. PW2 further deposed that he informed the police station so H.Ct. Surender along with L/Ct. Sheela came on spot and H.Ct. Surender recorded his statement Ex.PW2/A and prepared rukka which he handed over to him for registration of case FIR. PW1 further deposed that IO seized the can of illicit liquor vide seizure memo Ex.PW2/C. PW2 further deposed that IO took out a quarter bottle sample from can which was sealed with the seal of 'SP'. PW2 further deposed that IO prepared site plan Ex. PW2/B on his instance. He further deposed that IO arrested the accused vide memo Ex.PW2/D and conducted his personal search of accused vide memo Ex.PW2/E. PW2 identified the can as Ex.P1. 4C. PW3 deposed that on 02.05.2008, he handed over the sample FIR NO. 205/08 PAGE 3/9 STATE vs. SMT. SURENDER KAUR to Ct. Sanjeev vide RC No. 100/21/08 for depositing the same to Excise Lab. He also deposed that Ct. Sanjeev handed over him the receipt of deposit of sample.
4D. PW4 deposed that on 18.04.2008 she reached at the spot alongwith IO where Ct. Rajender produced the accused with plastic can filled with illicit liquor. PW4 further deposed that IO recorded the statement of Ct. Rajender and took out half liter liquor from the can and kept in a half bottle and thereafter the sample and can was sealed with the seal of "SP" and thereafter seized the same vide memo Ex. PW2/C. PW4 also deposed that after registration of case I.O. arrested the accused vide memo Ex. PW2/D and conducted her personal search vide memo Ex. PW2/E. 4E PW5 deposed that a sample was handed over to him to deposit in excise lab vide RC no. 100/21/08 so he deposit the same and produced the receipt of deposit.
4F PW6/ I.O. of the case deposed on the investigating aspect of the case. He deposed that he reached on spot alongwith L/Ct. Sheela where he met Ct. Rajender who produced the accused with can filled with illicit liquor. PW6 further deposed that he recorded statement of Ct. FIR NO. 205/08 PAGE 4/9
STATE vs. SMT. SURENDER KAUR Rajender Ex.PW2/A and prepared rukka Ex.PW6/B and sent Ct. Rajender for registration of FIR. He further deposed that he took out sample from can which he sealed with the seal of 'SP' and filled M29 Excise Form. PW6 further deposed that he seized the case property vide memo Ex.PW2/C and prepared site plan Ex.PW2/B and also arrested the accused vide memo Ex.PW2/D and personal search of accused was conducted vide memo Ex.PW2/E.
5. Statement of accused was recorded under section 313 Cr. P.C in the manner prescribed under Section 281 Cr.P.C wherein he denied all the allegation of prosecution and further stated that police official lifted her from her house and falsely implicated in this case being member of sasi community. However, accused did not prefer to lead any defence evidence.
6. I have heard the arguments of Ld. APP for the State and the Ld. Counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
7. On careful perusal and analysis of the entire evidence on record I find that no corroborative, consistent reliable and sufficient evidence to make up the edifice of the prosecution case has been FIR NO. 205/08 PAGE 5/9 STATE vs. SMT. SURENDER KAUR produced by the prosecution. Moreover, the testimonies of the prosecution witnesses do not inspire confidence.
8. PW1 deposed in his examination in chief that IO taken out liquor from the cane in a quarter bottle as a sample and sealed with the seal of "SP". Contrary to the testimony of PW1, PW4 testified that IO took out half liter liquor from the cane and kept in half bottle which was sealed with "SP" whereas I.O./PW6 testified that he took out a half bottle liquor from the cane for sample purpose. The aforesaid testimony of PW1, PW4 and PW5 are contrary to each other. It is also pertinent that the testimony of PW6 to the effect that he filled the form M29 of Excise Act on the spot has not been supported by PW1 & PW4 as they have not deposed about filling of form M29 on spot. In view of this, I am of considered opinion that there are material contradiction in the testimonies of PW1, PW4 & PW6, hence their testimonies cannot be relied upon.
9. Further PW5 deposed that he sealed the can with seal of 'SP' after taking out sample from it. Seizure memo Ex.PW2/C also reveals that can was sealed with seal of 'SP'. Admittedly, MHC(M) produced the empty can without seal in court so if PW6 sealed the can with the seal of 'SP', then why the said can was produced empty without seal by the MHC(M). So, under these circumstances, it is clear that the case FIR NO. 205/08 PAGE 6/9 STATE vs. SMT. SURENDER KAUR property i.e. can filled with illicit liquor has not produced in court. In view of this discussion, I am of considered opinion that it is doubtful that can of 10 litre filled with illicit liquor was recovered from the possession of accused.
10. Admittedly, during the investigation of the case no public witnesses were joined nor seems to be any sincere efforts made in this regard, when it was possible to do so this makes the case of the prosecution weak and suspicious. In State of Punjab vs. Gurmel Singh 1991(2) Recent Criminal Reporters 361 Hon'ble Court held that: "Where there were 20 shops nearby and the investigating officer had ample opportunity to join independent witness statement of official witnesses would not be sufficient to convict the accused. Contention of the prosecution that the police officials had no ill will to involve the accused in false case was repelled."
11. PW6 in his examination in chief have deposed that sample of illicit liquor was taken from cane of illicit liquor which was sealed with seal of 'SP' and seal after use was given to PW2. His testimony is totally silent as to whether any seal, handing over memo was prepared. Why such memo was not prepared, which constitute a material link evidence. Such linking evidence is lacking in the prosecution case. FIR NO. 205/08 PAGE 7/9
12. Further, the perusal of the seizure memo of illicit liquor Ex.PW2/C shows that FIR number is mentioned therein. There is not a single word in the testimony of the PW6 as to when and at what stage FIR number was inserted in Ex.PW1/A. Moreover, the testimony of PW2 & PW5 are also totally silent on this aspect. In the circumstances either FIR was recorded posterior in time or that documents were prepared after the recording of FIR. In case Mohd. Hasim vs. State VI AD (Delhi) 569 (Hon'ble Mr. Justice M S A Siddiqui) it was observed that documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and was hold that in both case, prosecution case would collapse.
13. In these circumstances, the testimony of the prosecution witnesses do not inspire confidence.
14. Apart from this, the presence of PW2 at the spot is not proved. If they had departed from PS for patrolling duty the entry to this effect must exist in the Roznamcha but that has not been proved, raising an adverse presumption against the prosecution U/S 114 (g) of the Evidence Act and if the said Roznamcha had been produced it would have not FIR NO. 205/08 PAGE 8/9 STATE vs. SMT. SURENDER KAUR shown their departure at all.
15. It is true evidence it to be weighted and not counted in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has been given to the accused. In view of this, I am fortified with the observations made in the case State of Rajasthan vs. Daulat Ram 1980 CAR 169 (SC) where it was held that prosecution failed to prove all the links. Accused was acquitted.
16. In view of the above, I hold that prosecution has failed to prove its case beyond reasonable doubt against accused and she is given the benefit of doubt and therefore accused Smt. Surender Kaur is acquitted of the offence punishable U/S 61 of Punjab Excise Act.
Announced in Open Court (RAVINDER SINGH)
07.06.2013 Additional Chief Metropolitan Magistrate
Shahdara Distt., KKD Courts, Delhi
FIR NO. 205/08 PAGE 9/9