Delhi District Court
State vs Vijender on 21 December, 2012
IN THE COURT OF MS. SHUCHI LALER
METROPOLITAN MAGISTRATE - 04 : EAST:
KARKARDOOMA COURT : DELHI.
FIR No. 491/06
U/s 61 Punjab Excise Act
PS Vivek Vihar
STATE Vs VIJENDER
JUDGMENT:
A Sr. No. of the case 02402R0473662007
B Date of institution 03.07.07
C Date of commission of 21.11.06
offence
D Name of the complainant Ct. Dinesh Kumar
E Name of the accused & Sh. Vijender, s/o Sh. Vasant Lal, r/o Jhuggi
his parentage and address No. 39, Tota Ram School, Kasturba Nagar,
Delhi.
F Offence complained of U/s 61 Punjab Excise Act
G Plea of the accused Pleaded not guilty
H Order Reserved on 21.12.12
I Final order Acquitted
J Date of such order 21.12.12
BRIEF FACTS AND REASONS FOR DECISION
1) The prosecution case, in brief, is that on 21.11.06, at about 7.00 pm, opposite Shivam Enclave, DDA Flats Chowk, Vivek Vihar, Delhi, within the jurisdiction of PS Vivek Vihar, accused Vijender was found in possession of a can containing 6.750 litres of country made liquor, without any valid permit or license. After investigation, challan was filed FIR No. 491/06, PS: Vivek Vihar State Vs. Vijender Page No... 1/7 by the police.
2) Complete set of copies were supplied to the accused and after hearing arguments, charge was framed against the accused for trial of offence U/s 61 Punjab Excise Act vide order dated 07.07.08 by my Ld. Predecessor to which the accused pleaded not guilty and claimed trial.
3) Prosecution in support of present case examined the following five witnesses.
4) PW1 DO/SI Phool Singh deposed that on 21.12.06, he received rukka brought by Ct. Dinesh Kumar sent by HC Satbir, on the basis of which he registered the present FIR Ex.PW1/A and made endorsement on the rukka Ex.PW1/B.
5) PW2 MHC(M)/HC Brij Pal deposed on 21.11.06, HC Satbir Singh deposited 10 litre filled can, sample quarter bottle and form M29 sealed with the seal of SSR. He made entry in register at serial No. 2755. He proved the copy of the same Ex.PW2/A. PW2 has further deposed that on 13.12.06, he handed over the sample quarter bottle and form M29 to Ct. Sunil vide R/C No. 146/21 to deposit the same in Excise Office. PW2 further deposed as per record, on 01.02.07, result from Excise Office was received through Ct. Veer Singh, which was handed over to IO on the same day.
6) PW3 Ct. Sunil deposed that on 13.12.06, on the directions of IO, he took one sample quarter bottle along with form M29 vide R/C No. 146/21 and deposited the same at Excise Office, ITO.
7) PW4 HC Dines Kumar deposed that on 21.11.06, he was on patrolling FIR No. 491/06, PS: Vivek Vihar State Vs. Vijender Page No... 2/7 duty and when he reached DDA Flat, near Shivam Enclave, Delhi, he saw one person coming from the side of Karkardooma Courts having a plastic can of 10 litres of white colour in his right hand. On suspicion, he chased that person and apprehended him. The can was checked and smell of liquor was found. On enquiry he disclosed his name as Vijender. He gave informaton to PS. HC Satyavir reached at the spot. PW2 has further deposed that IO/HC Satyavir recorded his statement Ex.PW4/A. IO requested 34 passersby to join the proceedings, but none agreed. IO mesured the liquor with help of plastic bucket, mug and bottle, which came to be 9 bottles. IO took out one quarter bottle liquor for specimen and thereafter, the remaining liqour was kept in the same can. The can and sample quarter bottle were sealed with the seal of SSR and after use, the seal was handed over to PW4. Form M29 was filled. IO seized the case property vide Memo Ex. PW4/B and prepared the rukka and handed over the same to PW4 for the registration of the case. After registration of the case, PW4 came back at the spot with the copy of FIR and original rukka and handed over the same to the IO. At his instance, IO prepared the site plan Ex.PW4/C. Thereafter, IO arrested the accused and conducted his personal search vide Memo Ex.PW4/D. PW4 correctly identified the case property i.e. can Ex.P1.
8) PW5 HC Satyabir deposed that on 21.11.06, on receiving DD No. 66B, he reached the spot i.e. Shivam Enclave, near DDA Flat, Vivek Vihar, Delhi, where Ct. Dinesh met him and he handed over the accused Virender along with recovered can to him. He checked the can, smell of liquor was there. FIR No. 491/06, PS: Vivek Vihar State Vs. Vijender Page No... 3/7 He requested 34 public persons to join the proceedings, but none agreed. He took out one quarter bottle liquor for specimen and thereafter, the can and sample were sealed with the seal of SSR. PW5 seized the case property vide Memo Ex.PW4/B. PW5 prepared the rukka Ex. PW5/A and handed over the same to Ct. Dinesh for the registration of the case. After registration of the case, Ct. Dinesh came back at the spot with the copy of FIR and original rukka and handed over the same to him. At the instance of Ct. Dinesh, he prepared the site plan Ex.PW4/C. Thereafter, he arrested the accused vide Memo Ex.PW5/B and conducted his personal search vide memo Ex. PW4/D. PW5 correctly identified the case property i.e. Can Ex.P1.
9) Statement of accused was recorded wherein he pleaded innocence and false implication in this case, however, he did not wish to examine any witness in support of his defence.
10)I have heard the Ld. APP for State and Ld. Defence Counsel and have perused the record.
11)To prove the charge U/s 61 Punjab Excise Act, the prosecution has to prove that the accused was found in possession of plastic can containing 6.750 litres of country made liquor, without any valid permit or license. First of all, no public witness has been joined by the IO in the present case despite availability. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completion of formalities at the spot but none of the public witness has been joined in the investigation. The explanation given by the prosecution in this regard FIR No. 491/06, PS: Vivek Vihar State Vs. Vijender Page No... 4/7 is that the public persons had refused to join the investigation. In Roop Chand Vs. State of Haryana, 1990(1) CLR 69, it has been observed that such explanations that the public persons refused to join the proceedings are unreliable and in Pardeep Narayn Vs. State of Maharashtra, AIR 1995 SC 1930, it has been 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.
12)It is a settled proposition of law that Subsection 4 to Sec. 100 of Cr.P.C.
is a directory provision however, the explanation of nonjoining of independent witness should also be plausible. The explanation put forth by the prosecution for nonjoining of independent witness appears to be implausible for the reason that no notice whatsoever, was given to the persons refusing to join the investigation. The same creates doubt regarding the fairness of the investigation.
13)It is also noteworthy that most crucial part of the investigation has been conducted even prior to the registration of present FIR. PW5 has deposed that he took out one quarter bottle liquor from the can as sample and the sample was sealed with the seal of SSR and prepared the seizure memo Ex.PW4/B. IO prepared the rukka Ex.PW5/A which he handed over to PW4 Ct. Dinesh for the registration of the case. The record reveals that FIR number finds mention on the seizure memo Ex.PW4/B. Admittedly, the Seizure memo was prepared before registration of FIR. When documents are prepared before registration of FIR and it contain the FIR number, the inference has to be drawn either FIR was recorded FIR No. 491/06, PS: Vivek Vihar State Vs. Vijender Page No... 5/7 prior in time or the documents were prepared later on and in such case, benefit of doubt has to be given to the accused.
14)Further, no efforts whatsoever have been made by the prosecution to collect any clue about the source from where illicit liquor was arranged for by the accused. At least, some efforts must have been made by the police to interrogate the accused and conduct the requisite investigation to know as to from where the accused arranged the illicit liquor.
15)It is also worth mentioning that as per the case of the prosecution PW4 was on patrolling duty at the time of incident. However, no DD entry in support of this fact has been placed on record. This further raises doubts about the prosecution story.
16)In view of the foregoing reasons, I am of the opinion that the prosecution has failed to prove its case against the accused, beyond reasonable doubt. Accordingly, I acquit the accused Vijender for the offence punishable U/s 61 Punjab Excise Act in FIR No. 491/06 PS Vivek Vihar. Case property be confiscated to the State, as per rules. Bail Bond of accused shall remain in force and surety of the accused shall not be discharged for a period of six months in view of section 437A Cr.P.C.
File be consigned to Record Room.
Announced in the open court (SHUCHI LALER)
today itself. MM/EAST/KKD/21.12.12.
FIR No. 491/06, PS: Vivek Vihar State Vs. Vijender Page No... 6/7
FIR No. 491/06
PS Vivek Vihar
21.12.2012
Present:- Ld. APP for the State.
Accused on bail with counsel.
S.A. recorded. Accused stated that he does not wish to lead DE. DE stands closed.
Final arguments heard.
Vide separate judgment, the accused Vijender is acquitted in FIR No. 491/06, u/s 61 of Excise Act, PS Vivek Vihar. Bail Bond of accused shall remain in force and surety of the accused shall not be discharged for a period of six months in view of section 437A Cr.P.C. Case property be confiscated to the State, as per rules and same be destroyed.
File be consigned to Record Room.
(Shuchi Laler) MM/East/KKD Courts, Delhi/21.12.2012 FIR No. 491/06, PS: Vivek Vihar State Vs. Vijender Page No... 7/7