Delhi District Court
3.Title State vs . Saroj on 16 May, 2013
THE COURT OF SH. SUNIL KUMAR SHARMA
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 05/09
2.Unique Case ID No. 02401R0641752009
3.Title State Vs. Saroj
3(A).Name of complainant Ct. Babu Singh, 668/W, PS
Khyala
3(B).Name of accused Saroj w/o Jaswant Singh, r/o N-
221, Vishnu Garden, New Delhi.
4.Date of commission of offence 17.01.2009
5.Date of institution the challan 28.05.2009
6. Date of Reserving the judgment Pronounced on the same day 7.Date of hearing the final 16.05.2013 arguments 8.Date of pronouncement 16.05.2013 9. Offence complained of Under Section 61 Punjab Excise Act, 1914 10. Offence charged with Under Section 61 Punjab Excise Act, 1914 11. Plea of the accused Pleaded not guilty 12. Final order Accused Acquitted U/s 61 Punjab Excise Act, 1914.
13. Date of receiving of judicial file 16.11.2010 in this court FIR no. 5/09 State v. Saroj Page no. 1 of 8 BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The matrix of the prosecution case in a narrow compass is that on 17.01.2009 at about 11.15 AM in the gali, N-221, Vishnu Garden, New Delhi, within the jurisdiction of PS Khyala, the accused was found in possession of two plastic kattas i.e. one containing 133 quarter bottles of ilicit liquor and other containing 98 quarter bottles of ilicit liquor as per seizure memo X without any requisite license or permit in contravention of notification of Delhi Government and thereby committed an offence punishable U/sec 61 of Punjab Excise Act, 1914.
2. Accordingly, the charge sheet was filed, before this Court, and copies of the same along with relevant documents were supplied to the accused in compliance of section 207 Cr. PC and on the basis of the material on record, charge u/s 61 Excise Act was framed against the accused on 09.11.2009, to which the accused pleaded not guilty and claimed the trial.
3. Prosecution in order to prove its case against the accused in total examined as many as six witnesses namely :-
1. PW-1 Ct. Babu Singh, Investigating witness.
2. PW-2 ASI Saranmal, Duty Officer.
3. PW-3 Ct. Arun Kumar, Investigating witness.
4. PW-4 HC Jal Singh, MHC(M).
5. PW-5 Ct. Lalita, Investigating witness.
6. PW-6 ASI Rohtash, Investigating Officer.
4. No other Prosecution Witness was examined. Prosecution FIR no. 5/09 State v. Saroj Page no. 2 of 8 Evidence was closed and statement of the accused was recorded on 16.05.2013 wherein the accused stated that he has been falsely implicated and that nothing incriminating was recovered from his possession. However, accused declined to lead evidence in his defence.
5. I have heard the Ld. APP for the state, Ld. counsel for the accused and perused the entire material available on record.
6. It is a cardinal principle of the criminal law that "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".
7. As per the case of the prosecution the PW-6 was the investigating officer who reached on the spot on receipt of a DD no. 21B regarding the recovery of the liquor from the possession of the accused and the seizure memo Ex. PW1B was prepared by the IO ASI Rohtash and signed by PW-1 Ct. Babu. It is also alleged by the prosecution that the said seizure memo was prepared prior to the registration of the present FIR and arrival of the PW-6, the Investigating Officer on the spot. The prosecution had also examined in support of its submission ASI Rohtash as PW-6. The seizure memo Ex. PW1/B is signed by ASI Rohtash and Ct. Babu. However, PW-6 ASI Rohtash had admitted in his cross examination that the seizure memo Ex. PW1/B was prepared by him and the entire content from the top to the end were written by him in one FIR no. 5/09 State v. Saroj Page no. 3 of 8 go. The same shows that the FIR no. which is mentioned by the ASI Rohtash was known to him prior to the registration of the FIR in the police station and contradicts the stands of the prosecution that the FIR was registered subsequent to the seizure of the ilicit liquor from the accused or the same was recorded on the basis of tehrir Ex. PW6/A.
8. 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.
9. The prosecution case shows that the seal after use was handed over to PW-1 Ct. Babu and the case property was seized vide seizure memo Ex. PW1/B. The same was not given to any independent public person. The same also creates reasonable doubt in the story of the prosecution. The reliance is placed on the judgment of Ramji Singh v. State of Haryana 2007 (3) RCR (Criminal 452) , Rajesh Jagdamba Avasthi v. State of Goa (2005) 9SCC 773.
10. Here I would like to refer to chapter 22 Rule 49 of Punjab Police Rules, 1934 which 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 FIR no. 5/09 State v. Saroj Page no. 4 of 8 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.
11. In the present case, the above said provision has not been complied with by prosecution as no DD entry of PW-1 Ct. Babu, and PW-2 Ct. Arun have been produced or proved as required under the law. In my opinion prosecution was under an obligation to prove on record, the above said DDs entry vide which police officials have left the PS for giving their duty so as to inspire the confidence regarding availability of PW-1 Ct. Babu, and PW-2 Ct. Arun at the place of recovery of illicit liquor from possession of the accused.
12. At this juncture, it would be also appropriate to refer a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with, then it can at least be said that it was so done with an oblique motive. The failure of the prosecution to bring on record the relevant DD entry , as discussed above creates a FIR no. 5/09 State v. Saroj Page no. 5 of 8 reasonable doubt in the prosecution version and attributes oblique motive on to the actions of of the police officials.
13. Further no independent public witness has been joined either during raid or during investigation despite opportunity. As per the case of the prosecution case the accused Saroj was found in possession of two plastic kattas i.e. one containing 133 quarter bottles of ilicit liquor and other containing 98 quarter bottles of ilicit liquor. The same is admittedly a public place having various residential houses and commercial shops in the vicinity. The PW-1 Ct. Babu and PW-6 ASI Rohtash in their cross examination have admitted that no written notice was given to the public persons for joining the investigation even the names and addresses of the requested persons were not recorded by them. 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. Admittedly no legal action has been taken against any of the 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.
14. 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 FIR no. 5/09 State v. Saroj Page no. 6 of 8 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.'' FIR no. 5/09 State v. Saroj Page no. 7 of 8
15. In view of the aforesaid findings, since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts, the only plausible findings which can be given against the accused is that of not guilty.
16. Accordingly, the accused Saroj stands Acquitted for the offence punishable u/sec 61 Punjab Excise Act, 1914 in the present case.
17. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
18. File be consigned to records after due compliance.
Announced in the open (Sunil Kumar Sharma)
court on 16.05.2013 Metropolitan Magistrate
Delhi
It is certified that this judgment contains 8 (eight) pages and each page bears my signature.
(Sunil Kumar Sharma)
Metropolitan Magistrate
THC, Delhi/16.05.2013
FIR no. 5/09 State v. Saroj Page no. 8 of 8
FIR no.5/09
PS Khyala
U/sec 61 Punjab Excise Act
16.05.2013
Present : Ld. APP for the State
Accused in person with Ld. Counsel.
PW-6 examined, cross examined and discharged.
Statement of the accused recorded separately wherein it is submitted by the accused that she does not want to lead any evidence in her defence.
Final arguments heard today.
Vide separate judgment dictated and announced in the open court today, accused Saroj stands acquitted for the offence punishable U/sec 61 Punjab Excise Act.
Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
File be consigned to records after due compliance.
(SUNIL KUMAR SHARMA)
Metropolitan Magistrate
Delhi/16.05.2013
FIR no. 5/09 State v. Saroj Page no. 9 of 8