Delhi District Court
State vs . Murtaza on 10 March, 2015
State Vs. Murtaza FIR No. 45/12 U/s 33/53 Delhi Excise Act. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE02, (SOUTH EAST), SAKET COURTS, DELHI. FIR NO. 45/12 U/S. : 33/53 DELHI EXCISE ACT. P.S. : OKHLA INDUSTRIAL AREA STATE VS. MURTAZA JUDGMENT
1. Sl. No of the case : 141/2/12
2. Date of commission of the offence : 05.02.2012
3. Date of institution of the case : 29.02.2012
4. Name of the accused : Murtaza S/o
Sh. Jiya Ullah
5. Name of the complainant : Ct. Sanjay
6. Offence complained of : 33 Delhi Excise Act
7. Plea of accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of such order : 10.03.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused has been sent to face trial under section 33 Delhi Excise Act, 2009, by the SHO, PS Okhla Industrial Area, Delhi.
2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that on 05.02.2012 at about 6.10 p.m, in front of jhuggi no. B530, Gola Kuan, Tehkhand, New Delhi, the accused was found in possession of two plastic bags containing 144 bottles each (total 288 quarter bottles) of illicit liquor, without any license or permit of N.C.T of Delhi. Therefore, the present FIR No. 45/12, under section 33/53 Delhi Excise Act, at PS. Okhla Industrial Area, was State Vs. Murtaza FIR No. 45/12 U/s 33/53 Delhi Excise Act.
registered. After completion of the investigation, charge sheet was prepared and filed in the Court.
3. In compliance of Section 207 Cr.P.C. the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge U/s. 33 Delhi Excise Act was made out against the accused Murtaza. Accordingly, on 26.03.2012, the charge was framed by the Ld. Predecessor of this court. The accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined five witnesses.
5. PW1 Ct. Sanjay Kumar is complainant and recovery witness of this case and he has deposed that on 05.02.2012, he was on patrolling duty at beat no. 3, Gola Kuan, New Delhi. During the course of patrolling duty, at around 6.00 pm, when he reached in front of B530, Gola Kuan, he saw a person carrying a katta on his shoulder and he was trying to shift the same to his jhuggi and another katta was lying outside his jhuggi. He apprehended the said person. Thereafter, he checked both the said plastic bags and found them to be containing 144 quarter bottles each of Narangi Special Masaledar illicit liquor for sale in Haryana only. In the meanwhile, Ct. Harpal and HC Lala Ram also reached the spot. The plastic bags were marked as serial no. 1 and 2. One quarter bottle was taken out as sample from bag no.1. The sample bottle and the remaining bottles were sealed with the help of cloth with the seal of 'LR' and seized vide memo Ex. PW1/A. IO/HC Lala Ram prepared the rukka and got the FIR registered through him. After registration of FIR, he returned back to the spot with original rukka and copy of FIR and handed over the same to IO. IO filled from M29. IO recorded his statement Ex. PW1/B. IO prepared the site plan Ex. PW1/C. IO arrested the accused and conducted his personal search vide memos Ex. PW1/D and Ex. PW1/E. The case property was deposited at the malkhana. He correctly identify the accused and case property. The case property is Ex. P1 colly.
6. PW2 Ct. Harpal has deposed on the similar lines as that of State Vs. Murtaza FIR No. 45/12 U/s 33/53 Delhi Excise Act.
PW1 Ct. Sanjay Kumar. Therefore, his testimony is not repeated herein for the sake of brevity and to avoid verbosity.
7. PW 3 HC Bhim Singh is a formal witness who had registered this FIR. He has proved its copy as Ex. PW3/A.
8. PW 4 Ct. Virender is also a formal witness who had taken the samples of liquor to Excise Lab at ITO on the directions of the IO. He deposited the same at the Excise Lab vide RC no. 12/21/12 against receipt. The seal remained intact till the time he deposited the sample at the Excise Lab.
9. PW 5 HC Lala Ram is the IO of the case. He reached at the spot after recovery of the said illicit liquors. He has deposed on the similar lines as that of PW1 Ct. Sanjay Kumar. Therefore, his testimony is also not repeated herein for the sake of brevity and to avoid verbosity. Thereafter, PE was closed.
10. Statement of the accused u/s. 313/281 Cr.P.C was recorded. All the incriminating evidence were put to him. In the said statement he has stated that he has been falsely implicated in the present case and he is innocent. He has further stated that the case property was falsely planted upon him. However, he preferred not to lead evidence in defence. Thereafter, the matter was listed for final arguments.
11. I have heard the Ld. APP for the state and Ld. Counsel for the accused. I have carefully perused the case record.
12. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he/she is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.
13. In order to sustain conviction U/s.33 Delhi Excise Act the prosecution is required to prove the following ingredients:
(i) The accused was found in the possession of the illicit liquor; and
(ii) He/She was possessing the same without any licence/permit.
14. The prosecution is required to prove that the illicit liquor was State Vs. Murtaza FIR No. 45/12 U/s 33/53 Delhi Excise Act.
recovered from the possession of the accused by PW1 Ct. Sanjay. He is the material witness as he is the alleged recovery witness. As per the prosecution, he was on patrolling duty at the time of recovery of the liquor from the possession of the accused. However, the prosecution has failed to place and prove on record the departure entry of the said witness vide which he allegedly left the police station for the purpose of patrolling in the area. The said departure entry was indispensable for establishing their presence at the spot of alleged recovery. Therefore, his presence at the alleged place, time and date of recovery of the illicit liquor from the possession of the accused is doubtful.
12. The alleged incident pertains to have occurred on 05.02.2012, at about 6.00 pm, in front of jhuggi no. B530, Gola Kuan, Tehkhand, New Delhi. The said spot is admittedly a densely crowded residential area. Further, the prosecution witnesses have conceded the presence of the public persons at the spot. Therefore, it is convincingly established that there were many public persons available at the spot of alleged recovery. The criminal law has duly empowered the investigating officer/police officials to initiate action against the persons who refuse to participate in the investigation. But still, IO neither made any genuine and sincere efforts to join public/independent witnesses nor advanced any plausible explanation as to why no independent witnesses were examined by him. Hence, story of the prosecution is further shrouded in suspicion.
13. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witnesses that are examined by the prosecution in the present case are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine and sincere efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient State Vs. Murtaza FIR No. 45/12 U/s 33/53 Delhi Excise Act.
credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court.
14. Keeping in view the fact that the version of prosecution witness has remained uncorroborated by any other independent witness regarding the alleged recovery of illicit liquor, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
15. In the light of above facts, the prosecution has failed to discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to the accused Murtaza and he is acquitted of the charge U/s.33 Delhi Excise Act. He be released, if not required in any other case. Case property be confiscated to the State. Case property be confiscated to the State.
File be consigned to record room after due compliance.
Announced in the open court on 10.03.2015 (DHEERAJ MOR) METROPOLITAN MAGISTRATE02 DISTRICT SOUTH EAST, SAKET COURT, DELHI State Vs. Murtaza FIR No. 45/12 U/s 33/53 Delhi Excise Act.
FIR NO. 45/12U/S. : 33/53 DELHI EXCISE ACT.
P.S. : OKHLA INDUSTRIAL AREA
STATE VS. MURTAZA
10.03.2015
Present: Ld. APP for the State.
Accused Murtaza produced from JC.
No PW is present. Record reveals that all the material witnesses have already been examined. Thus, PE stands closed.
The statement of the accused u/s 313/281 Cr.P. is recorded. The accused has submitted that he does not want to lead defence evidence.
Final arguments are heard. Case file is perused. Vide my separate judgment announced in the open court today, the accused Murtaza stands acquitted for the offence punishable U/s 33 of Delhi Excise Act. He be released, if not required in any other case. Case property be confiscated to the State.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM02/South East/Delhi 10.03.2015