Delhi District Court
3.Title :State vs . Ganga on 17 January, 2013
IN THE COURT OF SHRI RAJESH MALIK : MM-4 (North)
TIS HAZARI COURTS : DELHI
JUDGMENT
1.FIR No. :353/2006 2.Unique Case ID No. :R131115/06 3.Title :State Vs. Ganga 3(A).Name of complainant :ASI Dhyan Singh 3(B).Name of accused :Smt. Ganga S/o Late Darshan Singh, Jhuggi No. W-92/270, Rakhi Market, Zakhira, Delhi. 4.Date of institution of challan :23.11.2006 5.Date of Reserving judgment :17.01.2013 6.Date of pronouncement :17.01.2013 7.Date of commission of offence :03.09.2006 8.Offence complained of :U/s 61 of Punjab Excise Act, 1914 9.Offence charged with :U/s 61 of Punjab Excise Act, 1914 10.Plea of the accused :Pleaded not guilty 11.Final order :Acquitted BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The case of the prosecution in brief is that on 03.09.2006 at about 11:00 AM at Daya Basti near Railway Station, Delhi, the accused Ganga was found in possession of six plastic kattas containing eleven petties. Upon checking, nine petties were found containing 12 bottles each of Murthal no. 1 (HR), one petty was found containing 26 half bottles of Murthal no. 1 of illicit liquor and one petty was found containing 50 of Shamalkha no. 1 of illicit liquor. All the eleven petties alongwith the plastic kattas were seized vide seizure memo Ex. PW-3/A. Resultantly, the accused stood prosecuted for the offence punishable u/s 61.1.14 Excise Act.
FIR No. 353/06 1/62. After completion of investigation, charge sheet was filed before the court, copies were supplied to the accused in compliance of Section 207 Cr.PC and charge u/s 61/1/14 of Excise Act was framed against the accused to which she pleaded not guilty and claimed trial.
3. The prosecution in support of its case has examined five witnesses. The testimonies of material witnesses in brief are mentioned as under;
PW-5, who is the IO in the present case, deposed that on 03.09.2006, he was on patrolling duty at Rohtak Road with Ct. Ashok Kumar. He received a secret information that a lady was standing near railway station, Daya Basti with illicit liquor. Thereafter, Ct. Virender from Excise also came there. He requested 4-5 passersby to join the investigation but none agreed. He formed the raiding party and at the instance of secret informer, he apprehended the accused Ganga. The accused was found having 11 petties, out of which nine petties were having bottles, one petty was having 26 half bottles and other petty was having 50 quarter bottles. One sample bottle was taken out from each petty and sealed with the seal of DST. The remaining bottles were also sealed in the petties in which they were found with the seal of DST. Form M-29 was filled up by him at the spot. Seal after use was handed over to Ct. Ashok Kumar. He prepared the rukka Ex. PW-5/1 and handed over the same to Ct. Ashok Kumar for registration of FIR. Accordingly, Ct. Ashok Kumar got the FIR registered at PS and came back to the spot alongwith SI Ramkishan and W/Ct. Madhu. He prepared the seizure memo Ex. PW-3/A. He handed over the accused, case property and memos to SI Ramkishan. Thereafter, he left the spot.
PW-3 deposed that on 03.09.2006, he was posted at EIB, Vikas FIR No. 353/06 2/6 Bhawan, ITO, Delhi as Head Constable. He received a secret information that a lady is standing in front of Railway Station, Daya Basti alongwith illicit liquor. Accordingly, he reached at the spot where ASI Dhyan Singh and Ct. Ashok Kumar met him. He shared the secret information with ASI Dhyan Singh, who told him that he also had this secret information. ASI Dhyan Singh prepared a raiding party including him, Ct. Ashok Kumar and one other person. Then they enquired the said lady regarding six plastic bags/kattas but she did not give the satisfactory answer. Thereafter, ASI Dhyan Singh checked the plastic kattas and found four kattas were containing two cartons/petties each, one katta was containing one carton and all these cartons were containing 12 bottles of Murthal No. 1 Masaledar Deshi Sharab. Then, ASI Dhyan Singh checked the sixth katta which was found containing two cartons, out of which one carton was consisting 26 half bottles of Murthal No. 1 and second carton was consisting 50 Nibs Samalkha Deshi Sharab. He took one bottle as sample from each carton/petty and remaining bottles were put as it is in their respective petties. Thereafter, ASI Dhyan Singh prepared the rukka and handed over the same to Ct. Ashok Kumar for registration of FIR. In between seizure memo Ex. PW-3/A was prepared by SI Dhyan Singh. Ct. Ashok Kumar alongwith 2nd IO ASI Ram Kishan and one lady constable came to the spot with copy of FIR. He also identified the case property before the court.
PW-1 Ct. Madhu proved the arrest memo Ex. PW-1/A. She also conducted the personal search of the accused vide Ex. PW-1/B. PW-2 Ct. Bhutto Khan took the sealed sample bottles alongwith form M-29 and RC No. 233/21 from MCHM on 14.09.2006 and deposited the same to excise Office.
FIR No. 353/06 3/6PW-4 proved the FIR Ex. PW-4/A and endorsement Ex. PW-4/B on the rukka.
4. No other PW was examined. PE was closed vide order dated 16.10.12. The accused was examined under Section 281 Cr.P.C. wherein she submitted that she has been falsely implicated. She further submitted that nothing incriminating was recovered from her possession. In fact, she was lifted by the police official and was taken to PS where the liquor was planted upon her. However, she denied to lead evidence in her defence.
5. I have heard Ld. APP for the State and the accused. I have gone through the entire record carefully.
6. Now, the stage has been set to examine the case of the prosecution to see whether it inspires confidence and passes the test of probability, credibility and trustworthiness.
7. Apparently, no independent public witness has been joined during investigation despite opportunity. As per the case of the prosecution, the alleged recovery took place at about 11 AM at Daya Basti near Railway Station. Admittedly, many people were moving at the spot. However, none of the occupants from any of the houses/shops located near the spot were even requested to become witness. The explanation given that certain public persons were requested but they refused does not appeal to common sense and does not appear plausible as even names and addresses of those requested have not been mentioned. It does not appeal to common sense that police officials even could not obtain the names and addresses of the persons requested. Also, no legal action had been taken against any of the FIR No. 353/06 4/6 persons who refused to join the raid. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
8. In the case of PREM SINGH VS. STATE 1996 CRI.L.J.3604 (DELHI) and in the case of PAWAN KUMAR VS. DELHI ADMN.1989 CRLJ 0127 DEL wherein the court observed as under:-
''Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. 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 Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective 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 have 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 case of a 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 IO 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.''
9. Also, there is a delay of about nine days in sending the sample property to the excise lab which has not been explained and in such circumstances especially when the seal was not handed over to independent persons and remained with the police officials of the same police station where the property was lying benefit of doubt must be given to the accused as observed in AJIT SINGH VS. STATE OF PUNJAB 1984 (2) RECENT CRIMINAL REPORTS 95.
10. Further, in this case no efforts were made to hand over the seal after use to independent public persons and in such cases in view of SAIFULLA VS. STATE 1998 (1) CCC 497 (DELHI) and ABDUL GAFFAR FIR No. 353/06 5/6 VS STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused.
11. In this case, the FIR number has been found mentioned on the recovery memo and it has not been explained by the prosecution how the FIR number had been mentioned before registration of FIR. It gives inference that FIR was registered before preparation of memo.
In the case of MOHD. HASHIM VS STATE 1999 (6) A.D.(DELHI) 569 it was observed that when documents are prepared before registration of F.I.R and it contains the F.I.R number then inference has to be drawn that either F.I.R was recorded prior in time or the documents were prepared later on and in such cases benefit of doubt is to be given to the accused.
12. Now, since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubt, the only plausible finding which can be given against the accused is that of not guilty. Accordingly, the accused is acquitted in the present case.
13. Bail bond of the accused is extended till expiry of period of limitation for appeal. Case property be forfeited to the state, to be destroyed after the expiry of period for appeal or revision, if any.
File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN (RAJESH MALIK)
COURT ON 17.01.2013 MM-04 (North)/NEW DELHI
FIR No. 353/06 6/6