Delhi District Court
State vs . : Amit Kumar on 5 October, 2007
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IN THE COURT OF SH. PRASHANT KUMAR: MM ROHINI:
COURTS: DELHI.
State Vs. : Amit Kumar
FIR NO : 326/95
U/s : 61/1/14 Excise Act
PS : Adarsh Nagar
JUDGMENT.
1. Sl. no. of the case 193/96
2. Offence complained of
or proved U/s 61/1/14 Excise Act
3. Date of Offence 11.8.95
4. Name of the complainant H.Ct. Om Parkash
5. Name of the accused Amit Kumar s/o Brij Lal
R/o : House No. 10640 Gali No. 6,
Andha Mughal , PS Partap Nagar,
Delhi
6. Plea of the accused Pleaded not guilty.
7. Final order Acquitted
8. Date of Order 05.10.07
Brief reasons for decision:
1. Story of the prosecution in brief is as under :
that on dated 11.8.95 at about 2.10 pm at Link 2 Road, Model Town , Delhi accused was found in his possession carrying 17 bottles of special masaledar sharab and 27 bottles of bonnie scot special malted whisky in his Bajaj Scooter bearing No. DL-25-A-3539 without any permit or licence. Hence , FIR No. 326/95 u/sec. 61 of Punjab Excise Act was registered against him. IO conducted detailed investigation and file his final report u/sec. 173 Cr.P.C. After compliance of initial requirements copies of documents were supplied to the accused u/sec. 207 Cr.P.C. and arguments on charge was heard. Charge u/s 61 Punjab Excise Act was framed against the accused to which the accused pleaded not guilty and claim trial.
2. It is important to mention here that in order to establish the liability of the accused prosecution has examined 5 witnesses and there is no evidence is led from the side of accused in his defence.
3. PW 1 Ct. Dharampal has stated that on 22.8.95 he was posted as constable in PS Adarsh Nagar and received one sealed sample regarding this case with the seal of AKV from MHC(M). The case property was deposited and receipt was haded over to the MHC(M). 3 The case property was not tempered with thereafter.
4. PW 2 H.Ct. Om Parkash has stated that on 11.8.95 he was posted as Duty Commander 29th Battalion , PCR from 8 a.m. to 8 p.m. On that day at about 2.10. p.m. he was present near MCD Flats, Model Town alongwith police officials . One person informed that a person on scooter bearing no. DL-2SK 3539 coming from Mukund Pur and was having liquor with him. Upon receiving this information raiding party was prepared. Public persons were asked to join the raiding party but no one join the investigation , thus raiding party was prepared with the staff available. One scooter bearing No. DL-2SK 3539 was coming from Mukund Pur side. It was stopped which was driven by accused Amit Kumar. Scooter was having one bag of khaki colour containing 17 bottles of Santra country made liquor . The dicky was also checked. From the front dicky 15 bottles and from back dicky 12 bottles of Boni scotch whisky was also recovered. Local police was informed. S.I. Ram Avtar alongwith Ct. Kashmira came at the spot. Accused was handed over to them. Statement of PW 2 was recorded by IO which is Ex. PW 2/A. Scooter was seized . The bottles i.e case property was also seized . Sample was taken out . Remaining case 4 property was sealed accordingly . Rukka was prepared . Ct. Kashmira was sent for getting FIR registered . He came alongwith the registered FIR. Accused was arrested . Personal search was conducted . Statement of witnesses was recorded.
5. It is important to mention here that during examination of this witness the case property was brought on which the seal was not available. The said bag was containing 16 bottles of liquor out of which one was found broken. Another bag was checked . During cross-examination PW 2 however stated that he do not know whether any person with the initials of VKS was the member of raiding party.
6. PW 3 HC Jaipal Singh was the duty officer who received the rukka and registered FIR which is Ex. PW 3/A.
7. PW 4 ASI Jile Singh . It is stated by PW 4 that on 11.5.98 he was posted at PS Adarsh Nagar and was on duty on MHC(M). On that day IO deposited the case property in Malkhana. On 12.8.95 sample was sent to Excise lab through Ct. Dharampal vide RC No. 117/21.
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8. PW 5 SI Ram Avtar has stated that on 11.8.95 he was posted at PS Adarsh Nagar . Upon receiving the DD No. 13 A he alongwith Ct. Kanshi Ram went to Link Road , near MCD Flats, Model Town where he met IC PCR Ven Commandant 29 HC Om Parkash. 17 bottles of Santra country made liquor and 27 bottles of Bonie Scot were handed over to him. Accused Amit kumar was also handed over alongwith one scooter No. DL-2SK-3539 . Serial N0. 1 to 17 and 18 to 44 to the quarters were given accordingly to the bottles. Samples were sealed separately with the seal of AKY. Excise Form No. 29 was filed. The seizure memo for case property was prepared alongwith rukka and it was sent for registration of FIR. Site plan Ex. PW 5/A was prepared . Accused was interrogated and thereafter was arrested. Case property was deposited in malkhana and sample was sent to Excise lab. The case property was again brought in the Court and it was found that the case property was unsealed.
9 After examination of these five witnesses no other no other witness was called in the witness box hence PE was closed. One opportunity was given to the accused as per section 6 313 Cr.P.C and his statement was recorded wherein all the incriminating evidence and accusations are explained to the accused. Accused pleaded his innocence and stated that he do not want to led evidence in his defence.
10. Final arguments heard at length. Record perused. In order to establish the liability of the accused u/sec. 61 of Punjab Excise Act prosecution has to prove and establish the following things :
1. Accused was present at the spot.
2 Accused was found in possession of the said liquor
3. The said liquor was found in his possession and no licence thereof be furnished by him.
11. It is also important to mention here that in order to establish the liability of the accused beyond reasonable doubt the prosecution has to establish another fact that the case property is not tampered with and there is no sketch of memo with it in other case property or articles. It is important to mention here that the case property was brought in the Court unsealed always . Thus, the suspicion so raised while on behalf 7 of the accused that the case property has been planted upon the accused cannot be ruled out with a situation where all the said witnesses submits that the case property was sealed in their presence and remains intact till date it was produced in the Court. Thus, contradiction from the record it is emerged that the case property was not sealed properly or not sealed at all. In all these cases as the case property was not sealed, the situation of tempering with the case property cannot be ruled out .
12. With regard to the presence of accused in this Court it has been clear from the record that no eye witness/public witness has been produced by the prosecution and all the witnesses so examined by the prosecution are the police officials . Ld. APP for State has stated that testimonies of police officials cannot be rejected on any of the grounds . They are the interested witnesses and their statements so recorded by the prosecution on the basis of secret information was received and raiding party was prepared. One of the witness I.e. PW 2 HC OM Parkash has stated that he do not know any of the person in the raiding party with initials of VKS. Thus, the witness himself was not aware how the raiding party was formed and how 8 many persons with their names and classification it was constituted . It is further reflected from the record that several public persons were asked to join the raiding party but nowhere in their statement any of the PW has stated that whether any by- standers was asked to be a witness if raiding party was not able to persuaded any public person to join the raiding party . There is no explanation to this effect. Thus, under these circumstances it is considered that there is no eye witness from the public who could certify that the accused was present at the spot and was carrying liquor thus, non-examination of public person as witness, specifically when it has been alleged that public persons were present at the spot, is material which goes to the root of the case. In these circumstances in the light of above stated reasons that non-examination of public witness and chances of case property being tampered cannot be ruled out, thus, doubt has been created which should go in favour of the accused as per law. In these circumstances I am of the considered opinion that prosecution has not been established the liability of the accused beyond reasonable doubt hence benefit of doubt goes in faovur of the accused. Therefore, the accused is acquitted of the charge u/s 61 Punjab Excise Act. Surety for accused stands 9 discharged. Documents, if any, be returned, endorsement, if any be cancelled. File be consigned to record room.
Announced in open Court (PRASHANT KUMAR)
Dated 05.10.07 Metropolitan Magistrate
Delhi
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FIR No, 326/95
PS Adarsh Nagar
5.10.07 Present : APP for the state.
Accused on bail.
Final arguments heard. Final judgment is pronounced vide separate order sheet. Accused Amit Kumar is acquitted of the offence u/s 61 Punjab Excise Act. Surety for accused stands discharged. Documents, if any, be returned, endorsement, if any be cancelled. File be consigned to record room.
(PRASHANT KUMAR) Metropolitan Magistrate Rohini/Delhi 5.10.07