Delhi District Court
And Another vs . State, Decision Dated 01.06.2011 In ... on 31 July, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE- 05,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Sonu
FIR No. 176/11
Police Station : Baba Haridass Nagar
Under Section: 33 read with 58 (d) Delhi Excise Act
Unique Case ID Number: 02405R0105062012
Date of institution : 06.03.2012
Date of reserving : 31.07.2013
Date of pronouncement: 31.07.2013
JUDGMENT
a) Serial number of the case : 05/05/12
b) Date of commission of : 23.10.2011 offence
c) Name of the complainant : Assistant Sub Inspector Suresh Kumar
d) Name, parentage and : Sonu S/o Sh. Bhagwan Sahai address of the accused r/o H. No. RZC-184, Gali No. 4, near 25 feet road, Jai Vihar, Najafgarh, New Delhi.
e) Offence complained of : Sections 33 and 58 (d) Delhi Excise Act, 2009 f) Plea of the accused : Pleaded not guilty g) Final order : Acquitted h) Date of final order : 31.07.2013 State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 1 of 11
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused is being acquitted of the of- fence punishable under Section 33 Delhi Excise Act, 2009 (hereinafter referred to as 'Act') in this case FIR No. 176/11 police station Baba Haridass Nagar by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 23.10.2011 at about 09.15 PM at Surakhpur road, near Surakhpur village, New Delhi within the jurisdiction of police station Baba Haridass Nagar, the accused was apprehended by Head Constable Rakesh and Constable Arun in possession of a plastic katta containing 120 bottles of illicit liquor labeled Masaledar Desi Sharab for sale in Haryana without any permit or licence.
CHARGE
3. Vide order dated 04.02.2013, charge for the offence punishable under Section 33 of the Act was framed against the accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 15.07.2013, in compliance with the provisions of Section 294 of the Cr.P.C., the accused was called upon to admit or deny the genuineness of excise report No.7020-7021 dated State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 2 of 11 08.11.2011, DD No. 38 B dated 27.10.2011 and FSL form M29, which were admitted by the accused and were accordingly exhibited as Ex. P/A/1 to Ex. P/A/3. In view of the admission made, the evidence of the chemical examiner Ms. Madhu Shukla was dispensed with.
EVIDENCE OF THE PROSECUTION
5. To prove its case, the prosecution in all examined seven witnesses. PW-1 Head Constable Rakesh and PW-2 Constable Arun are recovery witnesses. PW-3 Head Constable Kishan Lal is the police official who had taken the sample vide RC No.100/21/11 Ex.PW3/A from the malkhana for depositing the same at the Excise Laboratory. PW-4 (wrongly numbered as PW-3) Sub-Inspector Shri Krishan is the duty officer who had recorded the information regarding apprehension of the accused with illicit liquor vide DD No.33A Ex. PW3/A, registered the FIR No.176/11 Ex.PW3/B in the present case and made endorsement on the rukka Ex.PW3/C. PW-5 (wrongly numbered as PW-4) is the moharrir malkhana who had made the entry at serial No.731 in register No.19 Ex.PW4/A. PW-6 (wrongly numbered as PW-5) Assistant Sub-Inspector Suresh Kumar is the investigation officer in the present case. PW-7 (wrongly numbered as PW-6) Inspector Rajbir Singh Lamba is the Station House Officer who had visited the spot upon receipt of information regarding apprehension of the accused with illicit liquor and counter sealed the case property and form M-29 with the seal of RSL.
STATEMENT / DEFENCE OF THE ACCUSED
6. In his examination under Section 313 Cr.P.C., the accused State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 3 of 11 denied the entire evidence put to him. He stated that he is innocent and has been falsely implicated in the present case. He categorically stated that nothing as alleged had been recovered from his possession. He stated that the prosecution witnesses had deposed against him as they had certain grudges against him. The accused did not lead any evidence in his defence.
ANALYSIS AND FINDINGS
7. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Umesh Kumar, Advocate, learned counsel for the accused, have been considered.
8. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or licence. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
9. Relying upon Section 52 of the Delhi Excise Act, learned Assis- tant Public Prosecutor for the State had argued that where the ac- cused is charged of commission of the offence punishable Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary. The said argument does not find favour with this Court. Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of offence in certain cases. - (1) In prosecution under section State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 4 of 11 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
(2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
10. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case.
Re: Absence of independent witnesses
11. Evidently, no public witness to the recovery of the liquor has State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 5 of 11 been either cited in the list of witnesses or examined by the prosecution. As stated by PW-1 Head Constable Rakesh and PW-6 Assistant Sub-Inspector Suresh Kumar, certain passersby had been requested to join the investigation. Thus, it is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
12. Though PW-6 Assistant Sub-Inspector Suresh Kumar stated that certain passersby/public persons had been requested to join the investigation but they refused to do so, he admitted that no notice was served upon the said public persons who had refused to join the investigation. From a perusal of the record, no serious effort for joining public witnesses appears to have been made by the recovery witnesses or by the investigating officer. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 6 of 11 destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
13. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
Re: Possibility of misuse of seal used of the investigating officer
14. As per the testimonies of prosecution witnesses, the sample of liquor and case property were sealed by the investigating officer with State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 7 of 11 the seal of SK. As per the testimony of PW-1 Head Constable Rakesh, after use the seal was handed over to him. However, no handing over memo regarding the same has been filed on record. Further, the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Accordingly, the possibility that the case property may have been tampered with cannot be ruled out.
Re: Other infirmities in the prosecution case
15. In his cross-examination, PW-6 Assistant Sub-Inspector Suresh Kumar stated that he prepared seizure memo of illicit liquor Ex.PW1/A and filled form M-29 Ex.P/A/3 at the spot before registration of FIR. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Constable Arun. Thus, ordinarily, the FIR number should not find mention in the seizure memo and form M-29, which came into existence before registration of the FIR. However, interestingly, the seizure memo of illicit liquor Ex.PW1/A as well as the form M-29 Ex.P/A/3 bear the FIR number and case details in the same handwriting and ink as the other contents. However, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memos Ex.PW1/A and Ex. P/A/3. The same leads to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused. Reliance here is placed on the State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 8 of 11 decisions of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127 and Mohd. Hashim v. State, 1999 VI AD (Delhi) 569.
16. Another lacuna in the prosecution case which is fatal to it is that the complainant himself acted as the investigating officer. Assistant Sub-Inspector Suresh Kumar is the author of the rukka/complaint on the basis of which the FIR was lodged in the present case and, therefore, he is the complainant. It is the prosecution's case that after registration of FIR, investigation was marked to Assistant Sub- Inspector Suresh Kumar. In Megha Singh v. State of Haryana, AIR 1995 SC 2339, the Hon'ble Apex Court observed in paragraph 4 as under:
"... We have also noted another disturbing feature in this case. PW-3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation." (emphasis supplied)
17. In the instant case as well, Assistant Sub-Inspector Suresh Kumar, i.e. the complainant, acted as an investigating officer inasmuch as investigation was marked to him despite the FIR having been registered on a complaint made by him and he prepared the site State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 9 of 11 plan, arrested the accused and recorded statements of witnesses etc. The same is in violation of the principles of natural justice and casts doubt on the fairness of the investigation. Reliance is also placed on the decision of the Hon'ble High Court of Delhi in Munesh Kumar and Another vs. State, decision dated 01.06.2011 in Crl. Appeal no. 810/2013.
Re: Contradictions in the testimony of prosecution witnesses
18. Further, there are certain material contradictions in the testimony of prosecution witnesses.
19. While as per PW-1, they had left for patrolling duty at about 05.00 p.m., as per PW-2 they had left at about 05.30 p.m.
20. As per PW-1, the accused was arrested at about 09.45 p.m., while as per PW-2 and the arrest memo Ex. PW1/D, the accused was arrested at about 10.50 p.m.
21. While PW-1 stated that after completion of all proceedings they had reached the police station at about 12.00 midnight, according to PW-2, they had reached the police station at 12.30 p.m. and as per PW-6 Assistant Sub-Inspector Suresh Kumar they had reached at about 01.00 a.m. CONCLUSION
22. The facts that no independent witness was cited or examined, possibility of misuse of the seal of the used to seal the case property has not been ruled out, the appearance of FIR number and case particulars on the seizure memo has not been explained and there are State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 10 of 11 several other infirmities in the prosecution case, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
23. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
24. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused is hereby acquitted of the offence punishable under Section 33 of the Act.
25. Case property be confiscated to State as per rules.
26. File be consigned to record room.
Announced in open Court on 31.07.2013.
(MANIKA) Metropolitan Magistrate- 05 (South-West), Dwarka Courts, New Delhi 31.07.2013 State v. Sonu FIR No. 176/2011 P.S.: Baba Haridass Nagar Page 11 of 11