Delhi District Court
State vs . Ram Nath Chaudhary on 29 June, 2019
IN THE COURT OF VASUNDHARA AZAD,
METROPOLITAN MAGISTRATE-03 (SE), SAKET COURTS,
NEW DELHI
FIR No.80/13
P.S. H .N. Din
U/s. 33 Delhi Excise Act
State Vs. Ram Nath Chaudhary
a. Sl. No. of the case : 93179/2016
b. Date of Institution : 23.10.2013
c. Date of Commission of Offence : 16.03.2013
d. Name of the complainant :HC Satyandra Singh
e. Name of the accused and his : Ramnath Choudhary
parentage and address S/o Sh. Dularchand
Choudhary R/o jhuggi No.741,
New Harizen Camp,
Kirti Nagar, New Delhi
f. Offence complained of : 33 Delhi Excise Act
g. Plea of the accused : Pleaded not guilty
h. Final Order : Acquitted
j. Date of such order : 29.06.2019.
FIR No. 80/2013, PS H. N. Din State Vs. Ram Nath Chaudhary Page No. 1 of 12
JUDGMENT
1. Accused Ram Nath Choudhary has been sent by the police of PS H.N. Din, New Delhi to face trial for commission of offence punishable under Section 33 Delhi Excise Act.
2. Facts of the case, in brief, are that on 16.03.2013, ASI Satender Singh was informed by a secret informer that a person with illicit liquor at Railway Road, near Nizamuddin Railway Station can be apprehended, after which, ASI Satender along with Ct. Pawan Kumar reached near bus stand H. N. Din at about 7.50PM where accused who came in a cycle rickshaw was apprehended, upon being pointed out by the secret informer. Specifically, accused was apprehended at about 8.15PM by ASI Satender with five gatta petties each containing 50 quarter bottles having label 'Jgadhari No.1 Santra Masaledar Deshi sharab for sale in Haryana only'. One quarter bottle from each katta was separated for sample purpose and seal of AK was put and remaining case property was kept in same plastic katta affixed with the seal of 'AK'.
3. ASI Satender Singh thereafter prepared rukka at the spot and sent Ct. Pawan Kumar for registration of FIR. FIR was registered and investigation was carried out. Site plan was prepared; statement of relevant witnesses were recorded;
FIR No. 80/2013, PS H. N. Din State Vs. Ram Nath Chaudhary Page No. 2 of 12 disclosure statement of accused was recorded; accused was arrested; samples were sent to Excise Laboratory and report was obtained. After completion of the investigating, challan under Section 173 Cr.P.C. was filed in the court.
4. Copy of the challan along with accompanying documents was supplied to the accused free of cost under Section 207 Cr.P.C. Finding a prima facie case, charge for commission of offence under Section 33 Delhi Excise Act was framed against the accused vide order dated 04.02.2014 to which he pleaded not guilty and claimed trial.
5. To prove its case, the prosecution examined the following witnesses:
a. PW-1 Ct. Pawan Kumar has deposed that on 16.03.2013, ASI Satender Singh was informed by a secret informer that a person used to sell illicit liquor at railway road, near Nizamuddin railway station. Thereafter PW3 ASI Satender along with PW1 Ct. Pawan Kumar reached near bus stand H. N. Din at about 7.50PM where they requested public persons to join the raiding party but none agreed. After sometime, accused came there in rickshaw and secret informer pointed out towards accused.
Accused was thereafter arrested by PW3 ASI Satender. b. PW2 HC Ram Saran has deposed that on 20.03.2013, IO of this case had directed him to collect sample bottles of this case FIR No. 80/2013, PS H. N. Din State Vs. Ram Nath Chaudhary Page No. 3 of 12 in order to deposit he same in Excise Lab. He had collected five quarter bottles of Jagardhari No.1 santara masaledar desi sharab from MHC(M) sealed with the seal of AK.
c. PW3 ASI Satender Singh has deposed along the lines of PW1 and has stated that he had prepared rukka Ex-PW3/E which was handed over to PW1 Ct. Pawan Kumar for registration of FIR. After the registration of FIR the present case was marked to PW5/HC Yaspal Singh.
d. PW-4 HC Pramod Kumar has deposed that sample quarter bottles were sent to excise lab by him through Ct.Ram Saran vide RC No.43/21/13.
e. PW-5 HC Yashpal Singh has deposed that on 16.03.2013, he reached at the spot where PW3 ASI Satender Singh handed over the custody of accused and recovered case property to him. HC Yashpal prepared site plan Ex-PW3/F at the instance of PW3, interrogated the accused and recorded his disclosure statement which is Ex-PW5/A. Accused was arrested and his personal search was conducted vide memos Ex-PW1/B and Ex- PW1/A.
6. Vide a separately recorded statement, the accused admitted under Section 294 Cr.P.C., copy of FIR which is Ex-P/A/1 and analysis report to Excise Lab dated 02.04.2013 which is Ex- P/A/2.
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7. After examination of the all the prosecution witnesses, the prosecution evidence was closed vide order dated 31.10.2018. Statement of the accused under Section 313 CrPC was recorded wherein he denied the allegations and claimed to have been falsely implicated. Accused opted to lead DE and produced Sh. Uday Bhan as DW1 and Vipin Kumar as DW2 in his favour. Testimonies of the same are as under:
DW1 Uday Bhan has deposed that he has known accused Ram Nath for last 10 years and that on 16.03.2013 at around 4.00PM, when he was standing near PS H. N. Din, he saw that a quarrel had occurred between accused Ramnath and a passenger due to insufficient payment of fare. DW1 has further deposed that after the aforementioned quarrel, he saw that passenger went to the concerned PS and later came out with a police man who took accused Ramnath inside the police station.
DW2 Vipin Kumar has deposed that on 16.03.2013, his mother received a call from a rickshaw puller regarding the arrest of his father i.e accused by officials of PS H. N. Din, thereafter which he along with his mother met the concerned rickshaw puller who narrated the entire incident to him.
8. I have heard the Ld. APP and learned counsel for accused and perused the case file. The Ld. APP has urged that all the FIR No. 80/2013, PS H. N. Din State Vs. Ram Nath Chaudhary Page No. 5 of 12 witnesses have supported the prosecution case and the case against the accused is proved beyond reasonable doubt. The learned counsel for the accused has argued that the guilt of the accused is not proved beyond reasonable doubt due to material discrepancies in the testimonies of prosecution witnesses.
9. From the overall testimony of the witnesses, it is clear that the IO has not joined any public witness in the investigation. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independence witnesses. It has been deposed in the testimony before the court that the public witnesses present refused to join investigation. In Roop Chand V. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly, as per Kuldeep Singh Vs. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001 (1) RCR 435, it is settled law that whenever any recovery in connection with the place of commission of offence is made, public person must be made witness. In the present case, the IO even failed to note down the particulars of the person who FIR No. 80/2013, PS H. N. Din State Vs. Ram Nath Chaudhary Page No. 6 of 12 refused to join the investigation and this creates doubt regarding the fairness of the investigation. Theerefore, chances of false implication cannot be ruled out.
10. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version as to recovery of the illicit liquor in question at the instance of the accused but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version. For instance, although PW-3 has in his testimony deposed that the seized liquor was sealed with the seal of AK which was thereafter handed over to PW-1 Ct. Pawan, the seal in the present case was not handed over to any independent witness nor was it deposited in the Malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
11. Also, in the present case the alleged illicit liquor in question was recovered at the relevant time by police officials namely PW1 Ct Pawan Kumar and PW3ASI Satender. As per Chapter FIR No. 80/2013, PS H. N. Din State Vs. Ram Nath Chaudhary Page No. 7 of 12 22 Rule 49 of the Punjab Police Rules, 1934, police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose. Since public persons were not joined in the investigation, the departure entries of the aforesaid police officials namely PW1 Ct Pawan Kumar and PW3ASI Satender, who had allegedly got recovered the alleged illicit liquor from the accused becomes a vital piece of evidence. No such departure entry has, however, been proved, on record. Although no question with respect to non production of departure entry was asked to the prosecution witnesses during their cross-examination , proof of the said entry is, however, indispensable as the present case rests solely on the alleged recovery made by police officials.
12. PW-3 ASI Satender has deposed that he seized the liquor vide memo Ex. PW-3/C, filled form M-29 Ex. PW-3/B at the spot, seized cycle rickshaw vide memo Ex. PW3/D, and thereafter prepared rukka Ex. PW-3/E. It is, therefore, clear that the seizure memos of the liquor and scooter were prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memos Ex. PW-3/C and Ex. PW3/D. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by FIR No. 80/2013, PS H. N. Din State Vs. Ram Nath Chaudhary Page No. 8 of 12 Constable Pawan Kumar. Thus, ordinarily, the FIR number should not find mention in the seizure memos, which came into existence before registration of the FIR. However, interestingly, the seizure memos Ex. PW-3/C and Ex. PW3/D bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed inState v. Om Prakash paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a FIR No. 80/2013, PS H. N. Din State Vs. Ram Nath Chaudhary Page No. 9 of 12 doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
13. In paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
14. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memos Ex. PW-3/C and Ex. PW3/D. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit FIR No. 80/2013, PS H. N. Din State Vs. Ram Nath Chaudhary Page No. 10 of 12 of which must accrue to the accused.
Conclusion
15. The facts that no independent witnesses have been cited or examined , daily diary entry regarding departure of PW-1 and PW-3 have not been proved, possibility of misuse of seal has not been ruled out and given that no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memos, there is a cloud of suspicion cast over the case of the prosecution. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
16. It goes without saying that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof in criminal cases is not merely preponderance of probabilities but is proof beyond reasonable doubt based on cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to accused.
17. Hence, in view of the facts stated above, I am of the view that benefit of doubt ought to be granted to the accused as prosecution has failed to connect the accused with the offences U/s. 33 Delhi Excise Act beyond reasonable doubt and FIR No. 80/2013, PS H. N. Din State Vs. Ram Nath Chaudhary Page No. 11 of 12 accordingly, he is acquitted for the said offence, for which he has been charged with. Case property be confiscated to state as per rules.
File be consigned to Record Room.
Announced in the (Vasundhara Azad)
Open Court on 29.06.2019 Metropolitan Magistrate-03 (SE)
Saket Courts, New Delhi
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