Delhi District Court
State vs . Jagdish @ Kalu on 1 February, 2013
IN THE COURT OF MS. NEHA: MM (SOUTHEAST),
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Jagdish @ Kalu
FIR No: 366/10
P. S. Amar Colony
Date of Institution of Case : 07.03.2011
Date on which case reserved : 11.01.2013
for Judgment
Date of Judgment : 01.02.2013
JUDGEMENT:
a) Date of offence : 04.08.2010 b) Offence complained of : 61/1/14 Excise Act c) Name of complainant : HC Ghanshyam d) Name of accused, his : Jagdish @ Kallu parentage & residence S/o Sh.Sheesh Pal, R/o Jhuggi No.S36/179, Kali Charan Camp, OSM New Delhi. e) Plea of accused : Not guilty g) Final order : Acquitted Present: Sh. Nischal Singh, Ld. APP for the State
Sh. S.K. Solanki, Ld. Counsel for the accused. FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 1 of 11 BRIEF FACTS AND REASONS FOR DECISION:
1. The case of the prosecution in brief is that on 04.08.2010 about 8:30 p.m. near Jumbo House, Okhla Subzi Mandi, New Delhi, accused Jagdish was found in possession of 35 quarter bottles of liquor without any valid license in contravention of notification of NCT of Delhi and he thereby committed an offence u/s 61/1/14 Excise Act. Accordingly FIR no. 366/10 under Section 61/1/14 Act at PS Amar Colony was registered against accused Jagdish.
2. After the completion of the investigation, charge sheet for offence U/s 61/1/14 Excise Act was filed against the accused. Cognizance of the offence was taken. Copy of charge sheet was supplied to the accused. After hearing the parties, notice for the offence U/s 61/1/14 Excise Act was served to the accused which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
3. Prosecution in order to prove its case examined four prosecution witness. HC Jitender Singh was examined as PW1. He stated that on 04.08.2010 he was posted at Police Station Amar colony and working there as duty officer from FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 2 of 11 4 pm to 12 night. At about 10:10 pm one rukka was given to him by HC Hanif sent by HC Ghanshyam with his endorsement for registration of FIR. He recorded the above FIR on the basis of rukka. The copy of FIR is Ex PW1/A. His endorsement on rukka is Ex PW1/B.
4. HC Hanif was examined as PW2. He stated that on 04.08.2010, he alongwith HC Ghanshaym was on patrolling duty in the area of Okhla Railway Station. When they reached Jammu House secret informer gave the information that one boy will come from Modi Mill side alongwith illicit liquor. Three four persons were asked to join the investigation but no one agreed and left the place without disclosing their names and addresses. At around 8:30 pm accused came at the Jammu house corner alongwith a plastic sack who was apprehended. The sack was checked which was containing 35 quarter bottles of illegal liquor out of which 24 quarter bottles were of bonee and 11 were of Bagpiper. One quarter bottle of each brand was taken out as sample and the rest of bottles were sealed and seized in the sack sealed with the seal of GS vide seizure memo Ex FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 3 of 11 PW2/A. Thereafter, form M29 was filled. IO prepared the rukka Ex PW2/B and handed over the same to him for getting the FIR registered. He went to PS and got the FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. Thereafter, accused Jagdish was arrested and his personal search was conducted vide memos Ex PW2/C & D. IO prepared the site plan Ex PW2/E. Accused was released on police bail.
5. Ct. Ram Jeevan was examined as PW3. He deposed that on 05.08.2010 MHCM handed over to him two quarter bottles of illicit liquor sealed with the seal of GS vide RC number 121/21/10 for depositing it in the Excise Department, Vikas Bhawan, ITO. He got the same deposited in the Excise Department, Vikas Bhawan, ITO. The receipt of the same alongwith RC no. was handed over to MHCM. He did not tamper with the sample bottles when it remained in his possession.
6. HC Ghanshyam is examined as PW4. He deposed on the lines of PW2. He has proved form no. M29 as memo Ex.
FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 4 of 11 PW4/A. He has also stated that after completion of the proceedings, case property was deposited in Malkhana and accused was released on police bail. During investigation he recorded statement of witnesses, prepared challan and filed the same before this court.
7. Thereafter no other witness was left to be examined and PE was closed vide order dated 0611.2012. Accused was examined under Section 281 Cr.P.C, wherein the accused has denied all incriminating evidence. He claimed innocence submitting that he has been falsely implicated in this case. On option being given, the accused did not lead D.E.
8. I have heard final arguments and perused the record very carefully.
9. It is submitted by Ld. APP for the State that all the witnesses have corroborated the testimony of each other and proved the story of the prosecution beyond reasonable doubt, therefore, accused is liable to be convicted. On the other hand it is submitted by Ld. Counsel for accused that in the present case no public persons was joined in the recovery/investigation, therefore it creates the shadow of the FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 5 of 11 doubt upon the story of the prosecution.
10.I have perused the entire material on record and carefully considered the submissions of Ld. APP and Ld. Defence Counsel.
11. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "In a criminal trial, it is for the prosecution to establish its c ase 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."
12. IO HC Ghanshyam has stated that he did not serve any notice to the residents of the jhuggis near the spot. In the instant matter, police official has submitted that IO had requested some passersby to join the investigation. However, no notice was served to public persons who refused to join the investigation. It is note worthy that I.O. had not made any serious endeavour to join the passersby in the investigation of the case. Also as per rukka IO did not serve FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 6 of 11 written notice to the passersby who refused to join the police proceedings. At least in the facts and circumstances of the present case, IO could have very well served the passersby with notice in writing requiring them to join the police proceedings or to face action u/s 187 IPC in as much as in the present case there was no possibility of accused escaping his apprehension / arrest or crime going undetected in as much as by the said time, accused stood already apprehended by the police. Failure on the part of prosecution to make sincere efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws.
13. In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 7 of 11 been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
14. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: " 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 FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 8 of 11 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 he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by 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 worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
15. PW2 HC Hanif stated in his crossexamination that the seal was returned to the IO after registration of FIR on the same FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 9 of 11 day. IO has also stated that seal after use was handed over to HC and he returned the seal to him on the same day. Admittedly seal was not handed over to any independent public person and the seal remained in the possession of junior police official. No efforts were made to handover the seal to independent public persons after use and seals remained with the junior police official only. Since the handing over of the seal to public witness has not been proved and hence it cannot be ruled out that police had the opportunity to tamper with the case property as the seals were in their possession. This also creates a doubt upon the prosecution story. Reference may be made to the judgment titled as "Prem Singh Vs. State" reported as 1996 CRI. L. J/ 3604 in this respect.
16. It is also relevant to state that when the case property was produced in court, the seal on the case property was partially broken. This also creates doubt over the prosecution case.
17. In view of the above discussion, I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused and accused stands acquitted for FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 10 of 11 the offence U/s 61 of Punjab Excise Act.
Pronounced in the open Court (Neha) today on 01st February 2013 MM10 (South East) Saket, New Delhi FIR no. 366/10 State vs. Jagdish PS Amar Colony Page 11 of 11