Delhi District Court
State vs Shabbir on 3 February, 2015
FIR No.293/09
P.S. Narela
U/s. 61 of Punjab Excise Act, 1914.
State Vs Shabbir
IN THE COURT OF SANDEEP GUPTA: METROPOLITAN
MAGISTRATE:ROHINI COURTS:DELHI
FIR No. 293/09
P.S. Narela
U/s. 61 of Punjab Excise Act, 1914
State Vs. Shabbir
Date of Institution of case:-06.07.10
Date of Judgment reserved:-03.02.15
Date on which Judgment pronounced:- 03.02.15
JUDGMENT
Unique ID no. : 02404R0157142010
Date of Commission of offence : 21.09.09
Name of the complainant : ASI Bale Ram, No.4786/D, Outer
Zone, PCR, Model Town.
Name and address of the accused : Shabbir S/o Sheikh Yamin, R/o H.No.
997, Pocket-4, Sector A-6, Narela,
Delhi.
Offence complained of : 61 of Punjab Excise Act, 1914
Plea of accused : Not guilty
Date of order : 03.02.2015
Final Order : Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:
Accused Shabbir S/o Sh. Sheikh Yamin has been sent up for the trial for the offence U/s. 61 of Punjab Excise Act, 1914 for the reason that on 21.09.09 at about 6:15 a.m. at A-5, Chowk, Police Colony, Narela, Delhi, he was found in possession of one plastic katta containing which was found containing 150 quarter bottles of Rangeen illicit liquor of 180 ml without any permit or licence and on the basis of the said allegations, the present FIR FIR no. 293/09, P.S. Narela Page 1 of 7 State Vs. Shabbir FIR No.293/09 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Shabbir bearing no.293/09 was registered at Police Station Narela and the accused has been charged with the offence under Section 61 of Punjab Excise Act, 1914.
2. After investigation, charge-sheet was filed against the accused and after supplying the copies to him in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C), a charge U/s. 61 of Punjab Excise Act, 1914 was framed against the accused on 16.11.2012, to which accused pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined two witnesses.
4. PW1 is ASI Subhash, no. 5098, PCR Outer Zone, Delhi. He deposed that on 21.09.09, he was posted at PCR Van Libra 75 bearing registration no. DL ICJ 0208 (QUALIS) as Head Constable as a Gun Man. He further deposed that on that day when he alongwith Commander ASI Bale Ram and driver Ct. Manjeet were on patrolling duty in the abovesaid Van and reached at about 06.15 p.m. at A 5 Chowk, Narela, a rickshaw was coming from Singhu Border Road towards Narela. He further deposed that the said rickshaw on seeing their PCR Van he turned his rickshaw back and started going backwards. On suspicion, he alongwith I/C ASI Bale Ram deboarded the said van and chased the said rickshaw on which the rickshaw puller ran away while leaving his rickshaw behind. Thereafter, I/C gave the information to Control Room and in the meantime, Beat Ct. Vikas Dama came at the spot alongwith one boy and they identified him being the said rickshaw puller who had left the rickshaw and ran away. On this I/C van checked the rickshaw which was found containing one katta containing illicit liquor. On interrogation accused revealed his name as Shabbir, present in the court and correctly identified by the witness. Thereafter, IO SI Suresh Chand alognwith Ct. Daljeet FIR no. 293/09, P.S. Narela Page 2 of 7 State Vs. Shabbir FIR No.293/09 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Shabbir reached the spot to whom they handed over the said rickshaw, the accused and the case property. Thereafter, IO recorded the statement of ASI Bale Ram. On checking the said katta by the IO, the said katta was found containing 150 quarter bottles of 180 ml each of Orange Maseledar Desi Sharab. Thereafter, IO took out one quarter bottle as sample and put back the remaining quarter bottles in the same plastic katta and sealed both the katta and the sample bottle with the seal of SC and seized the same vide memo Ex. PW 1/A and filled up the form M 29. Thereafter, the seal after use was handed over to Ct. Daljeet. Thereafter, IO prepared the rukka and sent the same through Ct. Daljeet to get the case registered who came back at the spot with the copy of the FIR and original rukka with endorsement and handed over the same to the IO. Thereafter, IO arrested the accused vide memo Ex PW 1/B and made his personal search vide memo Ex. PW 1/C. Thereafter, IO prepared the site plan at the instance of ASI Bale Ram.
MHC(M) produced one plastic katta was without seal. The same was opened and the katta was found containing 149 quarter bottles of Orange Maseledar Desi sharab and witness identified the same having been recovered from the accused. The katta with the said 149 quarter bottles was Ex. P1.
During his cross-examination by Ld. defence counsel, he deposed that no notice was given to the public person who refused to join the investigation in his presence. He further deposed that he had made his departure DD entry but he did not remember the DD entry number. He denied the suggestion that all the documents were prepared while sitting at the PS and that he had not visited the spot and that he had not joined the investigation. He denied the suggestion that that accused has been falsely implicated in the present case and that he had deposed falsely.
5. PW 2 is Ct. Manjeet, no. 9242, PCR New Delhi Zone, Delhi. He has also deposed on the similar lines as that of PW1 ASI Subhash. Therefore, his FIR no. 293/09, P.S. Narela Page 3 of 7 State Vs. Shabbir FIR No.293/09 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Shabbir testimony is not repeated herein for the sake of brevity and to avoid verbosity/repetition. He also correctly identified the accused and case property. He was also cross-examined by Ld. defence counsel.
6. As far as, Excise report is concerned, I take judicial notice of the same.
7. It is a matter of record that after examination of all the material witnesses on 23.09.2013 prosecution evidence was closed.
8. Subsequent to the recording of statement of witnesses, statement of accused was recorded and all the incriminating evidence having came on record were put to the accused, in which he submitted that he is innocent and has been falsely implicated in the present case. He has further submitted that he does not wish to lead any evidence and final arguments were heard.
9. I have heard both the parties and perused the record.
10. In the present matter, the accused has been charged U/s. 61 of Punjab Excise Act and to convict the accused, the prosecution has to prove that the accused was found in possession of one plastic katta containing which was found containing 150 quarter bottles of Rangeen illicit liquor of 180 ml without any permit or licence.
11. In the present case, the deposition of PW1 and PW2 shows that public persons were requested to join the proceedings but none agreed. In these circumstances, like the present one, if public person were asked to join but have refused to assist the member of police party, they could have served the FIR no. 293/09, P.S. Narela Page 4 of 7 State Vs. Shabbir FIR No.293/09 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Shabbir said public witness with a notice in writing to join police proceedings but perusal of the record shows that nothing sort of this was done in the present case. Even non examination or non joining of any public witness cast doubts on the case.
12. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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".
13. In a case law reported as "Roop Chand Vs. The State 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 to 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 FIR no. 293/09, P.S. Narela Page 5 of 7 State Vs. Shabbir FIR No.293/09 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Shabbir 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 provision 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".
Hence, it creates doubt in the story of prosecution.
14. The another material thing, which is required to discuss about the case of the prosecution is that on 21.09.09, PW1 and PW2 were on patrolling duty and present at A-5 Chowk, Narela, Delhi meaning thereby that at the relevant time they were not in the PS and it seems they were outside the PS, then as per Punjab Rules, they being on duty were required to enter their departure & arrival to & from the PS Narela in the DD Register of the said PS
15. Now, 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 the 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.
16. But, in the present case, this provision appears to have not been FIR no. 293/09, P.S. Narela Page 6 of 7 State Vs. Shabbir FIR No.293/09 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Shabbir complied with in respect of departure and arrival entry of PW1 and PW2. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the presence of PW1 and PW2 and other staff at the spot. Hence, it creates doubt in the prosecution story.
17. Further, 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. Further, it is also seen that the case property when first time produced before the court i.e. one plastic katta was without seal. It is also an admitted fact that recovery memo was prepared before the registration of the FIR. But the perusal of recovery memo shows that FIR number is mentioned at the top of it. It is a surprising fact that how the FIR number came at the top when the FIR was not registered at that time. No explanation has been given on this point. All these things create severe doubt over the story of prosecution.
18. In view of the above said discussion, I am of the considered view that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Shabbir is hereby acquitted from the charges U/s. 61 of Punjab Excise Act, 1914.
19. File be consigned to Record Room after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini Court,Delhi ANNOUNCED IN THE OPEN COURT TODAY i.e. 03rd February, 2015 FIR no. 293/09, P.S. Narela Page 7 of 7 State Vs. Shabbir FIR No.293/09 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Shabbir FIR No. 293/09 P.S. Narela U/s. 61 of Punjab Excise Act, 1914 State Vs. Shabbir 03.02.2015 Present: Ld. APP for the State.
Ld. counsel for the accused with accused on bail. I have heard the arguments and perused the record. Vide separate judgment dictated to the steno in the open court, accused Shabbir is acquitted of the said offence U/s. 61 of Punjab Excise Act.
Accused is directed to furnish fresh bail bond for a sum of Rs. 10,000/- with one surety of like amount.
At this stage, accused has furnished personal bond for a sum of Rs.10,000/-, which stands accepted.
File be consigned to Record Room, after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini/Delhi FIR no. 293/09, P.S. Narela Page 8 of 7 State Vs. Shabbir