Delhi District Court
State vs . Shambhu on 29 October, 2013
IN THE COURT OF SH. DEEPAK WASON:
MM-03: SOUTH-EAST: SAKET COURT: NEW DELHI
FIR No. 1032/1998
PS Kalkaji
U/s. 61/1/14 Excise Act, 1914
State Vs. Shambhu
Date of Institution of case:- 23.10.1999
Date of Judgment reserved:- 29.10.2013
Date on which Judgment pronounced:- 29.10.2013
JUDGMENT
Unique ID no. of case : 02403R0232852002
Date of commission of offence : 19.11.1998
Name of complainant : HC Giriraj Singh,
PS Kalkaji, New Delhi.
Name and address of accused : Shambhu,
S/o Sh. Rama Swami,
R/o C-559, Navjivan Camp,
Govind Puri, Kalkaji, New Delhi.
Offence complained of : 61/1/14 Excise Act
Plea of accused : Pleaded not guilty
Final order : Acquitted
Date of order : 29.10.2013
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
That on 19.11.1998 at about 8:40 p.m at Okhla service road, near Aggarwal Sweet, New Delhi, the accused was found in FIR no. 1032/98 PS Kalkaji Page 1 of 11 possession black colour cane containing 22 bottles of illicit liquor of 750 ml without any permit or licence and on the basis of the said allegations, the present FIR bearing no.1032/98 was registered at Police station Kalkaji and accused has been charged with the offence under Section 61/1/14 Excise Act.
2. After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to him in compliance of Section 207 Cr.P.C. and charge U/s. 61/1/14 of Excise Act was framed against him vide order dated 24.07.2000, to which he has pleaded not guilty and claimed trial.
3. In support of its version, the prosecution has examined five witnesses.
4. PW-1 is HC Jai Singh. He is the Duty Officer and has proved the copy of FIR as Ex. PW-1/A.
5. PW-2 is Ct. Virender Kumar. He has deposed that on 19.11.1998, he alongwith HC Giriraj were on patrolling duty at Okhla Service Road. He has further deposed that one secret informer informed that one person, who is involved in supplying of illicit liquor will come from the side of Okhla and if raided, can be apprehended. He has further deposed that IO shared the secret information with public person but none has come forward to FIR no. 1032/98 PS Kalkaji Page 2 of 11 become the witness. He has further deposed that IO organized raiding party consisting of IO, himself and secret informer and at about 8:30 p.m, one person came from Okhla service road, carrying one plastic bag on his shoulder. He has further deposed that on pointing out of the secret informer, the said person was apprehended and on interrogation, said person disclosed his name as Shambhu. He has further deposed that on checking plastic bag, one plastic cane containing liquor was found and on measuring, it was found containing 22 bottles of 750 ml, out of which he took out one quarter bottle as a sample and poured the remaining liquor in the cane. He has further deposed that IO sealed the sample quarter bottle and cane with the seal of GSB and seal after use was handed over to him. He has further deposed that IO filled form M-29, seized the sample and cane vide seizure memo Ex. PW-2/A, prepared rukka and got the case registered through him, arrested the accused and conducted his personal search vide memo Ex. PW-2/B. He has further deposed that accused was released on bail at the spot and case property was deposited in malkhana. He has further deposed that IO recorded his statement.
6. PW-2 is Ct. Manvir Singh (inadvertently mentioned as PW-2 and now it be read as PW-2A). He has deposed that on 20.05.99, MHC(M) handed over to him one sample pullanda duly sealed with the seal of GSB vide RC no. 25/21 and deposited at Excise Office at ITO and returned back R/C to the IO.
FIR no. 1032/98 PS Kalkaji Page 3 of 117. PW-3 is ASI Sajjanpal Singh. He has deposed that on 02.02.1999, he received the case file from MHC(R) for further investigation. He has further deposed that on 20.05.1999, sample pullanda was sent to Excise Lab through Ct. Manvir Singh and on the same day, he also recorded the statement of MHC(M) and Ct. Manvir Singh. He has further deposed that after completion of investigation, he filed the challan in the court through SHO. 8 It is a matter of record that during the proceedings, accused started remaining absent and he was declared proclaimed offender. Accused was again arrested and thereafter, further witness was examined.
9. PW-4 is ASI Giriraj. He has deposed that on 19.11.1998, he was on area patrolling duty alongwith Ct. Virender when they were at Okhla Service Road, they received a secret information that one person will come from Okhla service road with illicit liquor and if raided, can be caught. He has further deposed that he requested 4/5 public persons to join the proceedings but of no avail as they left the spot without disclosing their names and addresses. He has further deposed that he alongwith secret informer and Ct. Virender positioned themselves near Aggarwal Sweets, Okhla Service road and at about 8:40 p.m, they saw one person was coming from Okhla Service Road towards Govindpuri having one plastic cane on his right shoulder and on pointing out by secret informer, accused FIR no. 1032/98 PS Kalkaji Page 4 of 11 was apprehended and on enquiry, he stated his name as Shambhu, S/o Sh. Rama Swami. He has further deposed that he opened the cane and found smell of liquor. He has further deposed that he measured the liquor and found 22 bottles of 750 ml each, out of which, he took one quarter bottle as a sample and poured the remaining liquor in the cane. He has further deposed that both sample and remaining case property were sealed separately with the seal of GSB. He has further deposed that he seized the case property vide memo Ex. PW-2/A, filled form M-29, prepared tehrir, Ex. PW-4/A and got the case registered through Ct. Virender, prepared site plan, Ex. PW-4/D, arrested the accused and conducted his personal search. He has further deposed that accused was enlarged on bail and deposited the case property in malkhana, PS Kalkaji. This witness has correctly identified the accused in the court. This witness was cross-examined by Ld. defence counsel.
10. As far as excise result is concerned, I take judicial notice of the same.
11. It is a matter of record that after examining all the material witnesses vide today's order i.e 29.10.2013, prosecution evidence was closed.
12. Subsequent to the recording of statement of witnesses, statement of accused was recorded and all the incriminating FIR no. 1032/98 PS Kalkaji Page 5 of 11 evidence coming on record was put to the accused in which he has submitted that he has been falsely implicated in the present case. He has further stated that he does not want to lead any defence evidence and final arguments were heard.
13. I have heard the arguments of Ld. APP for the state, Ld. Legal Aid counsel as well as gone through the record.
14. In the present matter, the accused has been charged with U/s. 61 of Punjab Excise Act, 1914 and to prove the case against the accused, the prosecution has to prove that the accused was found in possession of illicit liquor, as alleged.
15. In the present matter, it has come in the examination of PW-2 & 4 that public persons were asked to join the proceedings but they refused to join and left without disclosing their name and addresses. Further, it has come in the cross-examination of PW-4 that he did not give any legal notice to those persons, who refused to join the proceedings. In these circumstances like the present one, if public persons would have refused to assist the members of the police party, they could have served the said public witnesses with a notice in writing to join the police proceedings. This thing has not been happened in the present case.
16. In a case law reported as "Roop Chand Vs. The State FIR no. 1032/98 PS Kalkaji Page 6 of 11 of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. 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 the 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 FIR no. 1032/98 PS Kalkaji Page 7 of 11 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 worth of credence. All these facts taken together make the prosecution case highly doubtful".
Hence, in view of the law discussed above, it casts a shadow of doubt in the prosecution case.
17. Further, as per the deposition of PW-2 & 4, on 19.11.1998, they were on patrolling duty meaning thereby that at the time they were not in the police station. Be that as it may, now if the said police officials were not present within the Police Station at the time of the alleged recovery and rather admittedly were outside the Police Station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival to & from the Police Station Kalkaji in the DD Register of the said Police Station.
As per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"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 departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note:- The term police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
FIR no. 1032/98 PS Kalkaji Page 8 of 1118. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of PW-2 & 4 from and to the Police Station of Kalkaji. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required DD entries, so as to establish the presence of PW -2 & 4 at or near the place of the recovery.
19. In the facts and circumstances of the case, the prosecution ought to have brought on record & prove the aforementioned DD entries by which PW-2 & 4 had left the PS before the recovery and by which they had arrived at the Police Station after the recovery, so as to inspire the confidence of the Court regarding their presence at the place of apprehension of the accused, since the said police officials were under bounden duty to enter their departure & arrival from / at the Police Station by making a DD entry in that respect as per the aforesaid mentioned Punjab Police Rule. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version.
20. Further, perusal of record shows that in the present case, ASI Giriraj had also acted as an Investigating Officer, who is one of the recovery witness. This also casts some doubt in the story of FIR no. 1032/98 PS Kalkaji Page 9 of 11 prosecution and to this effect help can be taken from the judgment of Hon'ble High Court of Delhi titled as Sunil Vs. State 1999 (1) JCC Delhi 85, wherein Hon'ble High Court of Delhi has also expressed in the para no. 8 of the above said judgment that Head Constable, who conducted the trap also acted as the IO of the case and which created some doubt in the story of prosecution.
Para no. 8 No public witness has been joined. The trap was laid by Head Constable and he had also acted as the Investigation Officer. There seems to be no reason why another higher officer was not entrusted the investigation. This casts some doubt and suspicion in the prosecution case.
21. In the present case, no efforts were made to hand over the seal after use in the presence of independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out and in such cases, benefit of doubt has to be given to the accused.
22. Keeping in view the above said discussions, I am of the considered view that the prosecution has failed to prove the guilt of the accused, beyond reasonable doubt. Accordingly, accused stands acquitted from the charges U/s. 61 of Punjab Excise Act, 1914.
FIR no. 1032/98 PS Kalkaji Page 10 of 1123. Personal bond of accused is accepted in terms of Section 437 A Cr.P.C.
24. Accused be released from jail, if not required in any other case.
25. File be consigned to Record room, after necessary compliance.
(Deepak Wason) Metropolitan Magistrate-03 South-East: Saket Court: New Delhi Announced in the open court today i.e. 29th October, 2013.
FIR no. 1032/98 PS Kalkaji Page 11 of 11 FIR No. 1032/98PS Kalkaji U/s. 61 of Punjab Excise Act, 1914 State Vs. Shambhu 29.10.2013 Present: Ld. APP for the State.
Sh. Vinay Verma, Ld. Legal Aid counsel for the accused with accused produced from JC.
PW-4 ASI Giriraj examined, cross-examined and discharged.
All the material witnesses have been examined. Hence, PE stands closed.
Statement of accused has been recorded separately, in which accused has submitted that he is innocent and has been falsely implicated in the present case. It is submitted by Ld. counsel for accused that accused does not want to lead any defence evidence.
Arguments heard. Record perused.
Vide separate judgment dictated to steno today in the open court, accused is acquitted for the offence U/s. 61 of Punjab Excise Act, 1914 and he is directed to furnish fresh bail bond in the sum of Rs. 5,000/- with one surety in the like amount in terms of Section 437 A Cr.P.C.
It is submitted by the accused that he is a very poor person and requested that he may be allowed to furnish FIR no. 1032/98 PS Kalkaji Page 12 of 11 personal bond in terms of Section 437 A Cr.P.C.
Heard. Allowed.
Personal bond of accused is furnished and accepted U/s. 437 A Cr.P.C.
He be released from JC, if not required in any other case.
File be consigned to Record Room, after due compliance.
(Deepak Wason) MM-03/SE/New Delhi 29.10.2013 FIR no. 1032/98 PS Kalkaji Page 13 of 11