Delhi District Court
To Acquittal. It Has Been Held In Case Of ... vs State Of Punjab" on 27 April, 2018
IN THE COURT OF MS. DEEPIKA SINGH,
METROPOLITAN MAGISTRATE-06, WEST, TIS HAZARI COURT
State v. Mahipal & Anrs.
FIR No. 221/12
PS Uttam Nagar
U/s 33 of the Delhi Excise Act
JUDGMENT
Case No. : 64613/16
Date of Institution : 24.11.2012
Date of Commission of Offence : 16.05.2012
Name of the complainant : HC Narender Singh
Name & address of the accused : 1. Mahipal,
S/o Sh. Swarn Singh,
R/o B-35, J.J. Colony, Hastsal,
Uttam Nagar, Delhi.
2. Satbir,
S/o Sh. Ramesh Chand,
R/o G-1/422, Dal Mill Road,
Uttam Nagar, Delhi
Offence complained of : U/s 33 of the Delhi Excise Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of announcing of judgment : 27.04.2018
State v. Mahipal & Anrs. U/s 33 of the Delhi Excise Act 1/8
FIR No. 221/12 PS Uttam Nagar
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section 33 of the Delhi Excise Act, 2009.
2. The briefly stated story of the prosecution is that on 16.05.2012, at about 6.40 pm at Hastsal Road, Near Gurudwara, A-Block, Uttam Nagar, New Delhi, Both the accused were found in possession of one white coloured plastic cane each, each containing 13 bottles of 750 ml each of illicit liquor, which were seized without any permit or licence. Thus both the accused are alleged to have committed an offence under Section 33 of the Delhi Excise Act, 2009. FIR was lodged on the basis of rukka and investigation was carried out.
3. Charge sheet was filed against both the accused in the court. Copy of charge- sheet and other relevant documents were supplied to both the accused. Charge under Section 33 of the Delhi Excise Act was framed against both the accused vide order dated 07.10.2013, to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined one witness.
5. PW-1 HC Narender Sharma, deposed that on 16.05.2012, he along with Ct. krishan and Ct. Nand Kishore was on patrolling duty in the area of Hastsal. At about 6.40 pm, while they were patrolling near Gurudwara, they noticed, both the accused persons were present in court that day and correctly identified by him, approaching from the opposite side while carrying plastic cane in their State v. Mahipal & Anrs. U/s 33 of the Delhi Excise Act 2/8 FIR No. 221/12 PS Uttam Nagar hands. On seeing police party, they turned back. They chased and apprehended both of them. The canes were checked and found smelling liquor. Both the canes of 10 litre capacity. He requested 4-5 passerby to join the proceedings but none agreed and left the spot on personal grounds. He directed Ct. Nand Kishore to arrange empty bucket and two bottles of 750 ml each. With the help of the same he measured the contents of the cane, which was recovered from accused Mahipal. The cane was marked serial no.1. It was found containing liquor equal to 13 bottles of 750 ml. He separated one sample bottle out of it. The cane and sample bottle were sealed with the seal of NK. The sample bottle was marked serial mark 1S. Thereafter, he measured the contents of the cane, which was recovered from accused Satbir. The cane was marked serial no.2. It was found containing liquor equal to 13 bottles of 750 ml. He separated one sample bottle out of it. The cane and sample bottle were sealed with the seal of NK. The sample bottle was marked serial mark 2S. He completed from No.M-29 in triplicate. He seized the recovered liquor vide memo Ex. PW1/A signed by him at point-A. Thereafter, he prepared rukka which is Ex.PW1/B and handed over to Ct. Krishan for registration of FIR. After registration of FIR, he came at the spot along with copy of rukka and FIR along with HC Shailender. HC Shailender conducted further investigation. He handed over both the accused persons. Seizure memo and recovered canes to the second IO. Samples as well as form M-29 was handed over to him. He State v. Mahipal & Anrs. U/s 33 of the Delhi Excise Act 3/8 FIR No. 221/12 PS Uttam Nagar prepared site plan Ex.PW1/C at his instance. Thereafter I released from the spot. Thereafter, MHC(M) produced two plastic cane bearing the seal of NK. The case is Ex.P-1.
6. During cross examination, witness admitted that they left the PS at about 6 pm. He did not remember the Departure Entry Number. The place of recovery was a residential area. No local resident was attempted to join the proceedings. The bucket got arranged was of plastic. The bottles were not bearing any label extra. It was dark but street light was there but not shown in the site plan. All the writing work was done by him while sitting on bench. Seal was given back to him after one week by Ct. Krishan in PS. He denied the suggestion that accused was picked from her home and falsely implicated in this case and alleged recovery was fake and planted.
7. Thereafter, the prosecution evidence was closed. Statement of accused persons were recorded wherein they denied all the allegations and pleaded innocence. No defence evidence was led by the accused persons.
8. I have heard the submissions addressed by the Learned APP for state and by the Learned Counsel for accused persons and carefully perused the record.
9. Learned Defence Counsel has submitted that the accused persons have been falsely implicated in this case. No public person was joined in the investigation despite availability.
10. It is a cardinal principle of criminal jurisprudence that prosecution has to prove State v. Mahipal & Anrs. U/s 33 of the Delhi Excise Act 4/8 FIR No. 221/12 PS Uttam Nagar its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused persons, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused persons. Accused persons is entitled to the benefits of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused persons to acquittal. It has been held in case of "Sadhu Singh V/s State of Punjab"
1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
11. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-
"22.49. Matters to be entered in Register No. II :- The following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the State v. Mahipal & Anrs. U/s 33 of the Delhi Excise Act 5/8 FIR No. 221/12 PS Uttam Nagar departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
12. In the present case, the above said provision have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal V/s State" 1987 (2) Crimes 29 wherein it was held by the Hon'ble High Court of Delhi, "If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
13. Also, no Public person has been made as a witness in the present case. Admittedly, the spot was a public area and public persons were present at the spot, however, no sincere efforts was made by the IO to persuade them to join the investigation. No notice was served upon the said witnesses. It has been held in "Roop Chand V/s The State of Haryana",1999 (1) C.L.R 69, by the Hon'ble Punjab & Haryana High Court that:-
State v. Mahipal & Anrs. U/s 33 of the Delhi Excise Act 6/8 FIR No. 221/12 PS Uttam Nagar "It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
14. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of NK and handed over to Ct. Krishan. However, no handing over memo was prepared. Also, the seal was neither handed over to independent witness nor deposited in malkhana. No State v. Mahipal & Anrs. U/s 33 of the Delhi Excise Act 7/8 FIR No. 221/12 PS Uttam Nagar explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness.
15. In view of the above discussion, court is of the considered opinion that story of the prosecution has become doubtful and the benefit of doubt certainly goes in favour of the accused persons. The prosecution has failed to prove its case beyond all reasonable doubts against the accused persons. Accordingly, taking into consideration the facts and circumstances of the case, accused Mahipal S/o Sh. Swarn Singh and Satbir S/o Sh. Ramesh Chander are acquitted for the charges punishable U/s 33 of the Delhi Excise Act levelled against them.
16. As per section 437A Cr.P.C accused persons are admitted to bail on him furnishing personal bond in the sum of Rs.20,000/- with one surety of like amount.
17. File be consigned to the record room after due compliance. Announced in open court on 27.04.2018.
Certified that this judgment contains (Deepika Singh)
08 pages and each page bears MM-06, (West)
my signature. THC, Delhi
State v. Mahipal & Anrs. U/s 33 of the Delhi Excise Act 8/8
FIR No. 221/12 PS Uttam Nagar