Delhi District Court
State vs . Pappu on 20 December, 2010
FIR No. 260/98
PS: Adarsh Nagar
S/v Pappu
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE: ROHINI COURTS: DELHI
FIR No. 260/98
PS: Adarsh Nagar
State Vs. Pappu
C. No. 212/99
U.ID No. 02401R0050131999
Date of Institution : 29.07.1999
Name of the complainant HC Ram Khilari
Name and address of the accused : Pappu s/o Firtu , r/o N9A 567
Jhugi, Lal Bagh, Azadpur,
Delhi.
Offence complained of : 61/1/14 Excise Act
Plea of accused : Pleaded not guilty
Final order : Acquittal
Date of reserve for orders : 20.12.2010
Date for announcing the orders : 20.12.2010
Brief Reasons for the judgment :
Vide this Judgment, I shall dispose off the case FIR No. 260/98
1.Charge U/S 61/1/14 Punjab Excise Act IPC was framed against the accused with the allegations that on 04.06.1998 at about 06.25 PM at Service Road, Ram lila ground near Paschimi Lal Bagh accused was found in possession of 26 poly pouches of illicit C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 1 FIR No. 260/98 PS: Adarsh Nagar S/v Pappu liquor without any permit or licence. The accused pleaded not guilty and claimed trial.
2. In order to prove the charge, prosecution examined three witnesses in total. PE stood closed on 18.12.2010. Statement of accused U/S 313 CrPC R/W Section 281 CrPC was recorded wherein accused claimed his innocence and did not prefer to lead any DE. Final arguments have been heard. Record has been carefully perused.
3. I shall briefly touch upon the statement of PWs.
4. PW1 HC Runpal was the DO in the present case who proved the copy of FIR as Ex.PW1/A.
5. PW-2, ASI Sewa Ram was the MHC(M) in the present case who deposed the case property in the malkhana by entering the same in register No. 19 at entry No. 1750 which is Ex.PW2/A. On 26.06.98 vide RC no. 45/21 one sealed pullanda with the seal of KU was sent to Excise Office through Ct. Virender and same is Ex.PW2/B. C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 2 FIR No. 260/98 PS: Adarsh Nagar S/v Pappu
6. PW-3 Ct. Virender Singh supported the prosecution case qua his investigation part and deposed that on 04.06.1998 he along with IO/HC Ram Khilari on receiving a secret information, went to the spot and apprehended the accused and deposed about the recovery of illicit liquor. He further deposed about seizure memo ExPW3/A. He further deposed that after preparation of rukka by IO it was handed over to him for getting the case registered and after having got the case registered he came back at the spot aong with rukka and copy of FIR and handed over the same to IO/HC Ram Khilari. Accused was arrested and personally searched vide personal search memo Ex.PW3/B. On 26.06.98 he took the sealed sample which was sealed with the seal of KU, excise form M-29 for depositing the same at Excise Laboratory through RC No. 48/98. After having deposited the sample bottle with Excise Laboratory, he returned back and deposited the receiving copy of RC with MHC(M).
7. Having touched upon the statements of PWs. I shall consider C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 3 FIR No. 260/98 PS: Adarsh Nagar S/v Pappu the rival contention of parties. Accused has highlighted several infirmities in investigation which are being discussed hereunder along with the explanation therefore advanced by Ld. APP for the State.
8. It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused and while completing the formalities at the spot but none of the public witnesses was even requested to become witness. This casts doubt about sincere efforts made by the IO to join independent witnesses. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it was observed that such explanation that the public persons refused to join the proceedings are unreliable and in Pradeep Narayan V/S State of Maharashtra reported in AIR 1995 S.C. 1930 held that failure of police to join witness from locality during search created doubt about fairness of the investigation benefit of which has to go to the C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 4 FIR No. 260/98 PS: Adarsh Nagar S/v Pappu accused.
9. It is settled proposition of law that Sub Section 4 of Section 100 Cr.P.C. is directory provision, however, explanation of non joining of independent witnesses should be plausible. The explanation put forward by the prosecution for non joining of independent witness appears to be implausible for reason that there was ample time with the IO at least to note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
10. It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant / IO HC Ram Khilari even before registration of FIR. Since, he was present at the spot no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in the case titled as Megha Singh Vs. State of Haryana reported in 1995 Crl. L.J. 3988 and as held in the case C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 5 FIR No. 260/98 PS: Adarsh Nagar S/v Pappu titled as Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused.
11. It is also highlighted by accused that on the recovery Memo, the FIR number finds mentioned and it has not been explained by the prosecution. Admittedly, these documents were prepared before registration of FIR and it contains the FIR number, then interference has to be drawn that either FIR 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.
12. It is next pointed out by accused that the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tempered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station.
13. All the lapses in investigation, discussed herein above creates a doubt on the very recovery of 26 poly pouches of illicit liquor C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 6 FIR No. 260/98 PS: Adarsh Nagar S/v Pappu from the possession of accused. The lapses are material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint then the entire prosecution case becomes open to serious doubts and challenges. The material is insufficient to record a finding of guilt of the accused and the safer course available is to acquit the accused giving him a benefit of doubt. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
14. Accordingly, I acquit the accused Pappu for the offence U/S 61/1/14 Punjab Excise Act. The Bail Bond stands cancelled and surety for the accused stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to Record Room.
Announced in the Open Court (Neeraj Gaur)
Dated 20.12.2010 Metropolitan Magistrate-IV/NW
Rohini Courts, Delhi
C/N. 232/99
Unique ID No. 02401R0088781999 Page No. 7