Delhi District Court
Has Been Held In Case Of "Sadhu Singh vs State Of Punjab" 1997(3) Crime on 31 January, 2019
IN THE COURT OF MS. DEEPIKA SINGH,
METROPOLITAN MAGISTRATE-06, WEST, TIS HAZARI COURT
State v. Udit Narayan & Anr.
FIR No. 9/14
PS Mundka
U/s 33/38 of the Delhi Excise Act
JUDGMENT
New Case No. : 59805/16 Date of Institution : 22.08.2015 Date of Commission of Offence : 08.01.2014 Name of the complainant : HC Sudarshan
Name & address of the accused : 1. Udit Narayan, S/o Sh. Dev Narayan, R/o Vill-Ranipur, PS Jhata, Distt. Fatehpur, U.P.
2. Avdhesh Kumar, S/o Ram Sagar Paswan, R/o Vill+P.O. Rajapur, Bachwara, Distt.-Begusarai, Bihar Offence complained of : U/s 33/38 of the Delhi Excise Act Plea of accused : Pleaded not guilty Final Order : Acquitted Date of announcing of judgment : 31.01.2019 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section 33/38 of the Delhi Excise Act, 2009.
State v. Udit Narayan & Anr. U/s 33/38 of the Delhi Excise Act 1/7 FIR No. 9/14 PS Mundka
2. The briefly stated story of the prosecution is that on 08.01.2014, at about 4.40 pm, at Lekh Ram Park, Tikri Boarder, Delhi, both the accused were found in possession of illicit liquor as per seizure memo mark-X, which were seized without any permit or licence and the said illicit liquor was unlawfully transported or possessed knowing the prescribed duty not to have been paid thereon. Thus both the accused alleged to have committed an offence under Section 33/38 of the Delhi Excise Act, 2009. FIR was lodged on the basis of rukka and investigation was carried out.
3. Charge sheet was filed against both the accused in the court. Copy of charge-
sheet and other relevant documents were supplied to both the accused. Charge under Section 33/38 of the Delhi Excise Act was framed against both the accused vide order dated 15.07.2016, to which they pleaded not guilty and claimed trial.
4. In order to prove the case against both the accused, the prosecution has examined one witness.
5. PW-1 HC Surender Kumar deposed that on 08.01.2014, he along with driver Dayanand and Ct. Ghera Singh were on PCR Van. On that day, at about 4.40 pm at Lekh Ram Park, Tikri Boarder, Delhi, they saw that one motorcycle bearing no. HR-13F-1605 make of Letina Bajaj was coming from the side of Haryana and one person driving the aforementioned vehicle and second who was pillion rider caught the plastic sack in his hand on the said motorcycle. On State v. Udit Narayan & Anr. U/s 33/38 of the Delhi Excise Act 2/7 FIR No. 9/14 PS Mundka suspicion they tried to stop the said motorcycle but they did not stop the same. Thereafter, they chaise the same and after 500 meter from there they caught the accused persons. They asked about the said plastic sack but they did not give satisfactory answer. On inquiry, the accused persons disclosed his name i.e. Udit Narayan and Avdesh Kumar present in the court that day and correctly identified by the witness. They checked the said plastic sack and it contained four cartons. Thereafter, he gave the information regarding recovery of illicit liquor to Control Room/PCR. Upon which IO and one constable came at the spot. They handed over custody of accused and recovered case property i.e. four cartons to IO.
6. During cross examination, witness admitted that he did not remember the name of the IO as well as constable who accompanied the IO at the time of alleged incident. It was also correct that he did not remember as to who was driving the aforementioned vehicle at the time of alleged incident. He denied the suggestion that accused has been falsely implicated in the present case. He further denied the suggestion that he was deposing falsely.
7. Thereafter, the prosecution evidence was closed. Statement of both the accused were recorded wherein they denied all the allegations and pleaded innocence. No defence evidence was led by both the accused.
8. I have heard the submissions addressed by the Learned APP for state and by the Learned Counsel for accused persons and carefully perused the record. State v. Udit Narayan & Anr. U/s 33/38 of the Delhi Excise Act 3/7 FIR No. 9/14 PS Mundka
9. Learned Defence Counsel has submitted that both the accused have been falsely implicated in this case. No public person was joined in the investigation despite availability.
10. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of both the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of both the accused. Both the accused are entitled to the benefits of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles both the accused to acquittal. It has been held in case of "Sadhu Singh V/s State of Punjab" 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
11. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-
"22.49. Matters to be entered in Register No. II :- The following matters shall, amongst others, be entered :-
State v. Udit Narayan & Anr. U/s 33/38 of the Delhi Excise Act 4/7 FIR No. 9/14 PS Mundka
(c) The hour of arrival and 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 personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
12. In the present case, the above said provision have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal V/s State" 1987 (2) Crimes 29 wherein it was held by the Hon'ble High Court of Delhi, "If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
13. Also, no Public person has been made as a witness in the present case.
Admittedly, the spot was a public area and public persons were present at the State v. Udit Narayan & Anr. U/s 33/38 of the Delhi Excise Act 5/7 FIR No. 9/14 PS Mundka spot, however, no sincere efforts was made by the IO to persuade them to join the investigation. No notice was served upon the said witnesses. It has been held in "Roop Chand V/s The State of Haryana",1999 (1) C.L.R 69, by the Hon'ble Punjab & Haryana High Court that:-
"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 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 he witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions 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''.
State v. Udit Narayan & Anr. U/s 33/38 of the Delhi Excise Act 6/7 FIR No. 9/14 PS Mundka
14. Another lacuna in the prosecution case relates to seal. Prosecution case is that no handing over memo was prepared. Also, the seal was neither handed over to independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness.
15. In view of the above discussion, court is of the considered opinion that story of the prosecution has become doubtful and the benefit of doubt certainly goes in favour of both the accused. The prosecution has failed to prove its case beyond all reasonable doubts against both the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused Udit Narayan and Avdesh Kumar are acquitted for the charges punishable U/s 33/38 of the Delhi Excise Act levelled against them.
16. As per section 437A Cr.P.C both the accused are admitted to bail on him furnishing personal bond in the sum of Rs.20,000/- each with one surety of like amount.
17. File be consigned to Record Room after due compliance. Digitally signed by DEEPIKA SINGH
DEEPIKA Announced in open court on 31.01.2019. SINGH Date:
2019.01.31 13:20:08 +0530 Certified that this judgment contains (Deepika Singh) 07 pages and each page bears MM-06, (West) my signature. THC, Delhi State v. Udit Narayan & Anr. U/s 33/38 of the Delhi Excise Act 7/7 FIR No. 9/14 PS Mundka