Delhi District Court
State vs . Rajesh on 15 January, 2015
IN THE COURT OF SATISH KUMAR ARORA :
CHIEF METROPOLITAN MAGISTRATE :
DWARKA COURTS : DELHI
State vs. Rajesh
FIR No: 449/07
PS: Najafgarh
U/s : 61/78/1/14 Excise Act
JUDGMENT
a) Sl. No. of the case : 196/03
b) Date of commission of : Intervening night of
offence 1314.05.2007
c) Name of the complainant : HC Ombir,
No. 1006/PCR,
SouthWest Zone, PCR
New Delhi
through State.
d) Name of the accused, his parentage : Rajesh @ Ravi,
and residence s/o Sh. Mithu Lal,
r/o H. No. B2D,
Baprola Vihar,
New Delhi.
e) Offence complained of or proved : u/s 61/78/1/14 Excise Act
f) Plea of accused : Pleaded not guilty
g) Final Order : Acquitted
h) Date of such order : 15.01.2015
FIR No: 449/07 PS : Najafgarh State Vs. Rajesh Page 1 of 6
BRIEF STATEMENT OF REASONS FOR THE DECISION:
1. Briefly stated, facts of the prosecution case are that on the intervening night of 1314.05.2007 when complainant/PW1 HC Ombir Singh was on patrolling duty with HC Hari Ram and Driver Surender while being posted at PCR Van No. DL 1CG 0309 (Z95), at about 2.00 am a scooter without light was found coming from Dichaon side having two riders. They were found carrying a bag and an attachi on the footrest of the scooter. They were asked to stop, however, they flee away while leaving the scooter with loaded articles. The attachi and the bag upon checking was found containing various quantities of illicit liquor of various brands. Matter was reported to the local police through the PCR whereupon IO/PW6 Retd. ASI Dharamveer reached the spot and recorded statement of HC Ombir of PCR. FIR came to be registered at PS Najafgarh and investigation was carried out which culminated into the filing of chargesheet against the accused for the offence punishable u/s 61/78/1/14 Excise Act.
2. After supplying the copy of chargesheet and hearing the ld. Counsel for the parties, charge for the offence punishable u/s 61/78/1/14 Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to establish and prove the charge against accused, prosecution examined six witnesses. They are as under : FIR No: 449/07 PS : Najafgarh State Vs. Rajesh Page 2 of 6
i) PW1 HC Ombir Singh is the complainant.
ii) PW2 Const. Jai Bhagwan participated in the investigation
with the IO.
iii) PW3 Balwant Rai Jain is the registered owner of two
wheeler scooter bearing registration no. DL SP 1917 who is alleged to have sold the said scooter to accused herein in presence of PW4 Nafees Ahmed and PW5 Shiv Raj Singh @ Guddu.
iv) PW6 Retd. ASI Dharamveer is the IO of the case.
4. In his statement recorded u/s 313 Cr.P.C, accused denied the prosecution case in its entirety and pleaded innocence and false implication. He also stated that the scooter was never purchased by him from anyone and that it has been planted upon him by the IO. However, no witness was produced or examined by accused in his defence. Also, vide separate proceedings u/s 294 Cr.P.C, accused admitted the genuineness of present case FIR and the report of Chemical Examiner as Ex. P3 and Ex. P4 respectively.
5. Heard the ld. APP for the State, ld. defence counsel for the accused and perused the record carefully.
6. Admittedly, as per the prosecution case, complainant/PW1 HC Ombir Singh did not see the accused on the intervening night of 1314.05.2007 and had only seen that there were two riders on a scooter bearing registration no. DL 4SP 1917 who upon being asked to stop had fled away from the spot while FIR No: 449/07 PS : Najafgarh State Vs. Rajesh Page 3 of 6 leaving the scooter with the loaded articles/illicit liquor. Prosecution has made an attempt to connect the accused with the incident by way of examination of the registered owner of the said scooter and two independent witnesses in the presence of whom the scooter is alleged to have been sold to accused herein. Thus, as is to be seen, the first aspect of the matter was whether or not accused purchased the scooter in question from its registered owner. Admittedly, in the testimony of registered owner PW3 Balwant Rai Jain, only the copies of Form 29, Form 30 and the Cash & Delivery Receipts were placed on record by the prosecution as proof of sale of scooter to accused. Why the carbon copies of the original were not retained by the owner, there is no explanation forthcoming either from the owner or from the IO. The general practice when sale of vehicle is done in such a given manner is that Form 29, Form 30 and Cash & Delivery Receipt are prepared in duplicate, whereas the original remains with the purchaser who then gets the RC transferred in his name, the copy of the original, on the other hand, remains with the seller as a necessary record for further reference. Also, there is nothing in the testimony of IO that he made any attempt to seize original of the RC of scooter from the possession of accused which could otherwise in the given facts of the case would have lend credence to the sale of scooter by its registered owner to accused. Admittedly, no such efforts were made by the FIR No: 449/07 PS : Najafgarh State Vs. Rajesh Page 4 of 6 IO. Even the registered owner PW3 Balwant Rai Jain also did not utter a word whether or not the original of the RC was handed over to accused by him. The other two independent witnesses PW4 Nafees Ahmed and PW5 Shiv Raj Singh @ Guddu also did not say that original of RC was handed over to accused by the registered owner in their presence. They also could not give complete particulars of the two wheeler scooter. Even if, with all these anomalies appearing qua the sale of scooter, it is presumed that the scooter was in fact sold to accused, then again there is nothing on record to show or establish that it was the accused who was himself using the two wheeler scooter for transporting illicit liquor. IO had done no investigation to make verification of the presence of accused on given day and time from anyone related to him or his neighbours who could have at least thrown some light of the presence or whereabouts of accused at the given point of time. Going further, there is a material contradiction with respect to the seal and seizure of the case property and the sample bottles separately kept. PW1 HC Ombir had deposed that the case property and the samples were separately sealed with the seal of DS and seized vide seizure memo Ex. PW1/B. During his examination, only one bag that too without any seal was produced by MHC (M) which was found containing 12 half bottles and 05 quarter bottles of Haryana No. 1 Masaledar Desi Sharab and 04 quarter bottles of Bonney Special FIR No: 449/07 PS : Najafgarh State Vs. Rajesh Page 5 of 6 Whisky. About the remaining case property, it was shown to have been disposed off on the orders of Court dated 18.07.2008. What happened to the attachi and the bag in which the illicit liquor is alleged to have been transported, there was no reference. Even the photocopy of the photograph of remaining case property could not offer any help. In these circumstances, when part of the case property was disposed off in the absence of accused and without affording him an opportunity to inspect and to be an attesting witness to its disposal and the other property in the form of samples being produced in unsealed condition, the entire prosecution case falls flat on the ground. This coupled with the fact that accused was never seen by the complainant carrying illicit liquor and there being admitted discrepancies qua the sale of scooter to accused, irreparably damages the entire prosecution case. In these facts and circumstances, it can be safely concluded that prosecution has failed to prove its case beyond reasonable doubt.
7. In view of the forgoing, accused stands acquitted of the offence punishable u/s 61/78/1/14 Excise Act. His B/B/S/B stands discharged. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT DATED : 15.01.2015 (SATISH KUMAR ARORA) CHIEF METROPOLITAN MAGISTRATE DWARKA COURTS : DELHI FIR No: 449/07 PS : Najafgarh State Vs. Rajesh Page 6 of 6