Delhi District Court
State vs . : Suresh on 22 April, 2013
IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS NEW DELHI State Vs. : Suresh FIR No. : 495/08 U/s : 61 of Excise Act PS : Okhla Industrial Area Date of Institution: 20.03.2009 Date of Judgment reserved for: 22.04.2013 Date of Judgment: 22.04.2013 Brief details of the case A. Sl. no. of the case 1257/2/09 B. Offence complained of u/s 61 of Excise Act or proved C. Date of Offence 11.11.2008 D. Name of the complainant ASI Bhura Singh No. 1/SD PSOIA, New Delhi E. Name of the accused Suresh s/o Sita Ram r/o Jhuggi near Telephone Exchange, Tehkhand, New Delhi F. Plea of the accused Pleaded not guilty G. Final order Acquitted H. Date of Order 22.04.2013 Judgment The case of the prosecution is that on 11.11.2008, at around 8.05 pm, at the jhuggis located near telephone exchange, Tehkhand, Okhla Industrial Area (OIA), PhaseI, New Delhi, accused Suresh was FIR No. 495/08 1/10 found in possession of 2 plastic bags each containing 260 quarter bottles of illicit liquor. He was not possessing any permit or licence for the liquor recovered from him.
Brief facts as unfolded during trial
2. On the above said date, Ct Ravi Shankar (PW3) and HC Bhura Singh (PW4) were on patrolling duty at Telephone Exchange, Tehkhand, OIA, PhaseI. During the course of patrolling duty, at around 8 pm, a secret informer met them and disclosed that a person sitting at the jhuggis located near the exchange was selling illicit liquor. A raiding party was constituted and 45 passersby were requested to join investigation but they did not agree and left the spot without disclosing their names and addresses. In the meantime, Ct Arun Kumar (PW5) also arrived at the spot during the course of patrolling duty and joined the raiding party. The raiding party reached the jhuggis and arrested accused on the pointing of secret informer. He was found sitting on a cot and two cartons each containing 260 quarter bottles were recovered from his possession. Samples were drawn from each carton and the remaining quantity was sealed with the seal of 'BS'. In the said background, the present FIR No. 495/08 under Section 61 of the Excise Act was registered at PS O.I.A.
3. Necessary investigation was carried out and requisite documentation was done at the spot. The sealed samples were sent for FIR No. 495/08 2/10 chemical analysis and on completion of the investigation, chargesheet was put to the Court. The copies of chargesheet were supplied to the accused and charge under Section 61 of Excise Act, was framed against him to which he pleaded 'not guilty' and claimed trial.
Witnesses examined
4. In order to establish the charges, the prosecution examined five witnesses. The brief gist of their testimony is as under:
PW1 Ct Ram Kishore (Police official who deposited the sample at Excise Lab) stated that samples were deposited on 17.11.2008 and seal was intact till that time.
PW2 HC Het Ram (Duty Officer) mentioned about registration of FIR. The copy of FIR is Ex PW2/A. PW3 Ct Ravi Shankar (First Recovery Witness) supported recovery.
PW4 ASI Bhura Singh (Investigating Officer) justified the investigation carried out by him. He stated in crossexamination that seal after used was handed over to Ct Ravi Shankar who returned it to him on the same day but no handing over or return memo was prepared. He mentioned that seizure memo was prepared before sending rukka to the police station.
PW5 Ct Arun Kumar (Second recovery witness) also supported recovery. He admitted the presence of public persons at the spot but FIR No. 495/08 3/10 stated that they did not join investigation.
5. Accused in his statement under Section 281 read with 313 of the Cr.P.C., 1973, pleaded innocence and claimed that he has been falsely implicated.
Arguments
6. I have heard Ld. APP for State and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. APP has contended that prosecution has proved its case beyond shadow of doubt. He has argued that all the material witnesses have entered into witness box and they have fully supported the case of prosecution. He has also argued that minor contradictions are bound to appear in any criminal matter and in the case in hand, there is no material contradiction which may create any doubt about the authenticity and veracity of the prosecution case and all the documents have been duly proved.
8. Ld. Defence Counsel has assailed the case of the prosecution. It has been argued that there is no justification as to why independent witnesses were not joined in investigation despite the fact that the police was having prior information. He has also argued that there are material contradictions and discrepancies and it becomes evident that illicit liquor had been planted upon the accused.
9. I have given my thoughtful consideration to the rival FIR No. 495/08 4/10 contentions and carefully perused the entire material available on record.
10. Admittedly, no public witness has been joined in the investigation. The recovery witnesses have mentioned that passersby were passing from the spot but none of them were joined in the recovery proceedings. It is evident that there number of other jhuggis adjacent to the jhuggi from where the recovery was effected but none of the inhabitants were joined in the investigation. IO/ASI Bhura Singh and other spot witnesses have stated in their crossexamination that there were number of jhuggis and shops surrounding the jhuggi from where the accused was apprehended. Police officials have remained completely silent about making any efforts for joining the inhabitants of other jhuggis in the recovery proceedings. Recovery witnesses have also admitted that passersby were passing from the spot. On appreciation of the testimony of police witnesses, it is evident that they have not joined any independent public witness despite availability. Stereo type version churned by them does not inspire confidence. The record shows that no sincere efforts were made by the investigating officer to join independent witnesses. The police officials could have at least noted down the names of the persons who refused to join the investigation or they should have made efforts to join some independent witness from the locality. They have very casually mentioned that passersby were requested to join the FIR No. 495/08 5/10 investigation but they refused. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it has been held that such casual explanations that the public persons refused to join the proceedings are unreliable. Similarly, in Pradeep Narayan Vs. State of Maharashtra reported in AIR 1995 S.C. 1930, it was observed that failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the accused.
11. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. It puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses and more so, FIR No. 495/08 6/10 when they were available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under :
"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."
12. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and FIR No. 495/08 7/10 creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law. There is nothing on record to demonstrate that any genuine effort was made by the police officials to join an independent witness.
13. The record shows that there was ample time with the police officials to join an independent witness in the investigation. It is not the prosecution's case that no public witness was available at the spot. All the witnesses have categorically admitted that public persons were present in the locality. The investigating officer has not joined any independent public witness despite availability. The safeguard provided under section 100 (4) Cr PC is not a mere formality. It is meant to ensure that credibility can be attached to the recovery proceedings. Failure to comply with the said provisions despite the fact that public persons were easily available at the spot is fatal for the prosecution's case.
14. The record further reveals that on the recovery memo, the FIR FIR No. 495/08 8/10 number 595/09 has been mentioned whereas the FIR number 495/08. It has been stated by the IO and other spot witnesses that plastic bags containing illicit liquor were seized and sealed before the rukka was dispatched to the police station. The chain of events narrated by the spot witnesses also suggest that seizure memo was prepared before sending rukka to police station. Infact, the spot witnesses have categorically admitted it during their crossexamination that seizure memo was prepared before dispatching the rukka. In case, the FIR was registered after preparation of seizure memo then how the FIR number has been mentioned therein. It has not been explained by the prosecution. In such circumstances, inference has to be drawn that either FIR was recorded prior in time or the seizure memo was prepared later on. The said fact casts doubt over the credibility of the investigation. The benefit of which ought to be given to the accused.
15. The record shows that there are number of infirmities in the version of the prosecution and missing links which creates doubt over the story of the prosecution. The benefit of which ought to be given to the accused. It is also observed that departure and arrivals of the police officials of the police station have not been proved to lend credence to the version of the prosecution.
16. In view of the above said discussion, I find it to be a fit case where the accused should be granted benefit of doubt. Accordingly, FIR No. 495/08 9/10 accused Suresh is granted benefit of doubt and stands acquitted of the charges under Section 61 of Excise Act, 1961.
19. Bail Bond stands cancelled. Surety stands discharged. Endorsement placed on the documents of the surety be cancelled and the same be returned to him, if retained on record. Case property be confiscated to the state and same be destroyed.
20. File be consigned to record room after necessary compliance.
Announced in open Court (Sudhanshu Kaushik) on this day of 22nd April, 2013. Metropolitan Magistrate Saket Courts, Delhi FIR No. 495/08 10/10