Delhi District Court
In Re: State vs Risal Devi on 8 March, 2013
IN THE COURT GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
EAST DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS RISAL DEVI
F.I.R. No: 437/06
U/s 61/1/14 Excise Act
P.S. Sarita Vihar
Date of Institution of Case : 06.02.2007
Date of Judgment Reserved for : 08.03.2013
Date of Judgment : 08.03.2013
JUDGMENT:
(a) The serial no. of the case : 65/3/07
(b) The date of commission of offence : 14.08.2006
(c) The name of complainant : SI Puran Singh
(d) The name, parentage, of accused : Risal Devi w/o Tulsi, R/o A310,
Aali Vihar, New Delhi.
Present Address : As above
(e) The offence complained of : U/s 61 of Punjab Excise Act
1914
(f)The plea of accused : Pleaded not guilty
FIR No. 437/06 State Vs. Risal Devi 1/11
(g) The final order : Acquitted
(h) The date of such order : 08.03.2013
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 14.08.2006 at about 06.45 p.m. at A310, Aali Vihar, New Delhi within the jurisdiction of PS Sarita Vihar accused Risal Devi was found in possession of 120 bottles of illicit liquor having label of "for sale in Haryana" without any permit or license and in contravention of notification issued by Delhi Administration and thus thereby the accused committed offence punishable u/s 61 of Punjab Excise Act 1914.
2. Charge sheet filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide orders dated 11.09.2009 charge u/s 61/1/14 Punjab Excise Act was framed against accused to which she pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined four witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein she claimed herself to be innocent and having been falsely implicated in the case.
FIR No. 437/06 State Vs. Risal Devi 2/11 A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 ASI Harshvardhan deposed that on 14.08.2006 he was posed as Head Constable, EIB Vikas Bhawan, Excise Department. He deposed that he had a secret information that one lady is selling liquor without license at A310, Aali vihar. He deposed that he reached at the spot at about 06.45 p.m. where he found SI Puran Singh and const Kamal Singh already present there. He deposed that 120 bottles of Masaledar Panipat No. 1, Desi Sharab for sale IN Haryana only had already been recovered from accused Risal Devi. He deposed that the liquor was recovered from 3 kattas and IO took out one bottle from each katta. He deposed that the case property was sealed in the kattas in the number of 47 each in two kattas and 23 bottles in third katta. He deposed that the kattas were given no. 1,2 and 3 and the sample bottles were given numbers A1 to A3. He deposed that the case property and sample bottles were sealed with the seal of PS. He deposed that form M29 was filled and seal after use was handed over to constable Kamal. He deposed that the case property was seized vide memo Ex. PW1/A. He deposed that IO got the FIR registered and the accused was arrested vide memo Ex. PW1/B. This witness identified the case property as Ex. P1.
5. PW2, Ct. Kamal Singh deposed that on 14.08.2006 he was posted as Constable in PS Sarita Vihar and he alongwith SI Puran Singh was on patrolling in the area of Aali Gaon, Ali vihar and at about 6.15 p.m. SI Puran Singh FIR No. 437/06 State Vs. Risal Devi 3/11 received a secret information that one lady is selling liquor at A310, Aali Vihar without license. He deposed that he alongwith SI Puran Singh reached at the spot at about 06.45 p.m. where on checking 3 kattas were found under the Takhat and on checking found containing 120 bottles of Masaledar Panipat No. 1, Desi Sharab for sale in Haryana only. He deposed that in the meantime Head Ct. Harshvardhan EIB, Excise Department also reached there. He deposed that Ms. Rishal Devi was present in the house and was in possession of liquor. He deposed that the liquor was recovered from 3 kattas and IO took out one bottle from each katta. He deposed that the case property was sealed in the kattas in the number of 47 each in two kattas and 23 bottles in third katta. He deposed that the kattas were given no. 1,2 and 3 and the sample bottles were given nos. A1 to A3. He deposed that the case property and the sample bottles were sealed with the seal of PS and Form M29 was filled and seal after use was handed over to him. He deposed that case property was seized vide memo Ex. PW1/A. He deposed that IO prepared the rukka and handed over it to him for the registration of the FIR. He deposed that he went to PS and got the FIR registered and came back at the spot with original rukka and copy of FIR and handed over it to the IO. He deposed that the accused was arrested vide memo Ex. PW1/B and the accused was released on bail and the case property was deposited in the Malkhana. He deposed that IO recorded his statement.
6. PW3 HC Mohan Lal deposed that 21.08.06 he was posted as Ct. in PS FIR No. 437/06 State Vs. Risal Devi 4/11 sarita vihar and on that day, MHCM had handed over three sample bottles of 750ml of illicit liquor with the seal of PS vide RC no. 119/21 dated 21.08.06 for depositing in Excise Laboratory Vikas Bhawan. He deposed that he got it deposited in Excise Laboratory Vikas Bhawan and the receipt of the same and RC number were handed over to MHCM. He deposed that he did not tamper with the sample bottle when it was in his possession. He deposed that IO recorded his statement.
7. During his cross examination he stated that he does not remember that the DD no. of his departure from PS to Excise Department. He stated that he does not remember the name of the officer to whom he had handed over the sample bottle in Excise Department. He denied the suggestion that he was deposing falsely.
8. PW4 SI Puran Singh deposed on the same lines as deposed by PW2 Constable Kamal.
9. This so far is the prosecution evidence.
10. I have heard the arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in FIR No. 437/06 State Vs. Risal Devi 5/11 this case.
11. The learned defence counsel has very vehemently argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there is no independent corroboration thereof. It was further argued that the prosecution failed to produce during the trial the alleged liquor which was recovered from the accused. On the other hand, the Ld. APP argued that there is no requirement of law that independent witness be joined during investigation or raid or that the testimony of police official is unreliable in the absence of any independent corroboration. It
12. I have heard the rival submissions. No doubt that Police officials/official witnesses are as good as any other witness however, when public persons were available and still they have not been joined in the investigation and no notice has been served upon them in case of refusal the prosecution case/their testimony has to be scrutinized stringently. In the case at hand the testimony of police witnesses makes it amply clear that they did not make any efforts whatsoever to join the public witnesses in the investigation.
13. In '' 1990 CCC 3 '', titled as '' Roop Chand V/s State of Haryana '' it was observed as under :
''When some witness from the public was available the explanation FIR No. 437/06 State Vs. Risal Devi 6/11 furnished by the prosecution that they refused to join the investigation, the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.
14. In '' 1990 CCC 20 '' titled as '' Maluk Singh V/s State of Punjab '' , it was further held that:
''Joining of witnesses in the case of excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency it is always desirable that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation''.
15. Further reliance can be placed upon "Hem Raj v. State of Haryana AIR 2005 SC 2110, Sahib Singh v. State of Punjab AIR 1997 SC 2417, D.V. Shanmugham v. State of A.P., AIR 1997 SC 2583 and Pawan Kumar v. The Delhi Administration, 1989 Cr.L.J 127 Delhi wherein it has been observed that in the absence of public witness/nonjoining of public/independent witnesses the prosecution story has to be approached with caution more so when the investigation officer failed to take action against those who refused to join the alleged raid.
FIR No. 437/06 State Vs. Risal Devi 7/11
16. As is evident from the deposition of the prosecution witnesses, the place of alleged recovery was a very busy place being a residential area and admittedly numerous public persons were also present. However, none from the public could be joined by the police official during the alleged raid and seizure. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable. In the case of PREM SINGH VS. STATE 1996 CRI. L. J. 3604 (DELHI) and in the case of PAWAN KUMAR VS. DELHI ADMN. 1989 CRI. L.J. 127 it was observed that in case of failure to join independent witness benefit of doubt must be given to the accused.
17. As per the allegations the accused was selling liquor/found in possession of liquor from jhuggi bearing no. A310. However the prosecution could not produce on record any document to connect the accused with the jhuggi. There is no document on record to even remotely prove that the accused was the owner or the tenant or in any other manner related to the jhuggi. IO did not collect any document regarding the same during the investigation. There is nothing to connect/link the accused with the jhuggi. This further creates doubt upon the prosecution story.
18. In the present case, when the case property was produced in the court for the first time i.e. during the deposition of PW1 ASI Harshvardhan it was ob served that most of the quarter bottles which were allegedly recovered from the FIR No. 437/06 State Vs. Risal Devi 8/11 accused and which contained liquor were empty i.e. prosecution failed to pro duce the case property/the liquor during the trial. Even the seal on the katta in which the liquor was kept was illegible. This casts serious doubts upon the entire seizure and recovery proceedings. In Ramji Singh v. State of Haryana (P&H) 2007(3) R.C.R. (Criminal) 452 the accused was acquitted as when the case property was produced in the Court, the seal was broken and indecipherable. Similarly, in Channa Ram @ Maiya v. State of Haryana, (P&H) 2004(4) R.C.R. (Criminal) 440 and Didar Singh v. State of Punjab, (P&H) 1989(2) R.C.R. (Criminal) 195 the accused was acquitted by the Hon'ble High Court as when the case property was produced in the Court it was found that the same was not sealed. Regarding the broken bottles/case property as observed by the Court it itself shows the manner with which the same was dealt by the SHO/IO during the time it remained in possession of police official in malkhana. Under Rule 22.15 it is responsibility of Office Incharge of Police Station to examine the property twice a month. Under Rule 27.17 it is his duty to maintain case property till such time the final orders are passed. Once the case property is found to be broken/dam aged import link in the prosecution story goes missing and the accused becomes entitled to acquittal. Reliance can be placed upon case titled as Singara Singh v. State of Haryana (P&H) 1997(2) R.C.R (Criminal) 783. Further in State of H.P. v. Chhinda @ Surinder (H.P.) 1990(1) R.C.R. (Criminal) 408 it was ob served that deposit and unkeep of property in malkhana is fundamental impor tance. Further reliance can be placed upon case titled as "Dattu Ram v. State FIR No. 437/06 State Vs. Risal Devi 9/11 1996 1 AD (Delhi) 52 as well as "Dhanpat V. State of Punjab 2000 (1) CC cas es HC 52".
19. Furthermore, in the present case, no efforts were made to hand over the seal after use to independent public persons and it remained with the officials of the Police Station only. In such cases in view of the case titled as SAIFULLA VS. STATE 1998 (1) CCC 497(DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused. Till the time case property is not dispatched to the FSL the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of the seal, contraband and the samples being tempered with cannot be ruled out (Tara Singh v. State of Punjab (P&H) 2004 (1) R.C.R. (Criminal) 623).
20. Even the departure and arrival of the police officials to the police station have not been proved by the prosecution to lend credence to the version of the prosecution.
21. Lastly I may reiterate the observations made in Raghbir Singh and another v. The State of Haryana, 1990(1) Chandigarh Law Reporter 695; State of Punjab v. Gurmej Singh, 1991(2) Recent Criminal Reports 361; State of Punjab v. Gurnam Singh, 1991(3) Recent Criminal Reports 4122 and Gurvel Singh v. The State of Punjab, 1992(1) Recent Criminal Reports 114 FIR No. 437/06 State Vs. Risal Devi 10/11 where it has been held that failure of the Investigating Officer to join independent witnesses of the locality in investigation sounds the death knell of the prosecution case set up against accused and the accused is entitled to secure an acquittal on this score.
22. In view of the above discussion, I am of the considered opinion that the prosecution has not been able to prove the charges against the accused beyond the shadow of doubt. Accused is accordingly entitled for acquittal.
23. I order accordingly.
Announced in the open (Gaurav Rao)
Court on 08.03.2012 MM (SD)/Delhi.
FIR No. 437/06 State Vs. Risal Devi 11/11
F.I.R. No: 437/06
U/s 61/1/14 Excise Act
P.S. Sarita Vihar
08.03.2012
Pr: Ld. APP for state.
Accused is present on bail along with her counsel.
Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
Fresh bail bonds u/s 437A Cr.P.C. furnished and accepted. File be consigned to Record Room.
(Gaurav Rao) MM (SE)/Delhi.
08.03.2012.
FIR No. 437/06 State Vs. Risal Devi 12/11