Delhi District Court
2. Title Of The Case : State vs Vicky Berry on 29 February, 2012
IN THE COURT OF SHRI MANISH YADUVANSHI
ACMM0I (CENTRAL) : TIS HAZARI COURTS, DELHI.
1. Case No. : 0701/P
Unique I.D. No. : 02401R0231572003
2. Title of the Case : State Vs Vicky Berry
FIR No. 203/1999
PS : Paharganj
U/s : 61 Excise Act
4. Date of Institution : 30.10.1999
5. Date of reserving judgment : 29.02.2012
6. Date of pronouncement : 29.02.2012
J U D G M E N T :
a) The Sl. No. of the case : 701/P
b) The date of commission
of offence : 01.05.1999
c) The name of complainant : HC Zahid Hussain No. 331/C
d) The name of accused : Vicky Bery
S/o Brij Mohan Bery,
R/o R7, Om Vihar, Uttam Nagar,
Delhi
FIR NO. 203 of 1999 State Vs. Vicky Berry Page 1 of 11
e) The offence complained of : U/s : 61 Excise Act.
f) The plea of the accused : Pleaded not guilty
g) The final order : Acquitted .
h) The date of such order : 29.02.2012
i) Brief facts of the decision of the case :
1. Briefly stated, it is alleged by the prosecution that on 01.05.1999 at about 12.15 AM at Main Bazar, near Royal Hotel, Paharganj, Delhi, the accused Vicky Bery was found in possession of 66 quarter bottles and 7 half bottles of illicit liquor, which act of the accused was found to be in contravention of Section 61 of the Excise Act. This accused was apprehended by SI (now Inspector) Ramesh Kumar (PW5) and HC Joginder Singh (PW2) and HC Zahid Hussain (PW4) while on patrolling duty in the area of occurrence upon suspicion. The police station was informed and HC (now SI) Inderpal came to the spot upon receiving copy of FIR NO. 203/1999 and original rukka from Ct. Jogender Singh (PW2). He conducted the investigation and during the investigation the accused was arrested. The illicit liquor was checked and 66 quarter bottles of make Bagpiper and 07 half bottles of make bagpiper in two cartoons were recovered from the accused. One half bottle and one quarter bottle was taken as a sample. The case property was seized. The excise form (Ex.PW7/C) was prepared. The site plan Ex. PW7/A was prepared. The sample bottle was deposited with FIR NO. 203 of 1999 State Vs. Vicky Berry Page 2 of 11 the excise laboratory, report of which was obtained which is Ex. . The case property was deposited with MHC (M) HC Ghanshyam Gaur (PW6) by HC Jahid Hussain (PW4).
2. The charge sheet was filed in the court and the copy of the same was supplied to the accused in compliance of Section 207 Cr.P.C. On the basis of record, the charge for commission of offence punishable U/s 61 of Excise Act was framed against the accused on 16.10.2003, to which he pleaded not guilty and claimed trial.
3. The prosecution had furnished list of seven witnesses, including MHC (M) and all of them have been examined.
4. PW1 ASI Shanti Prakash deposed to have registered FIR No. 203/99 Ex. PW1/A under Section 61/1/14 Excise Acts on the basis of rukka brought by HC Zahid Hussain. Copy of FIR and original Tahrir was handed over to Ct. Joginder for further investigation to be conducted by HC Inderpal.
5. PW2 HC Joginder Singh deposed that on 01.05.1999, during patrolling duty with SI Ramesh Kumar at Six Tooti Chowk where HC Jahid Hussain met them who was also on patrolling duty and infromed that he FIR NO. 203 of 1999 State Vs. Vicky Berry Page 3 of 11 received a secret information through one secret informer that one person would come to Vijay Guest House in possession of illicit liquor and if raided, liquor could be recovered from his possession. Upon this information, HC Joginder Singh (PW2) alongwith SI Ramesh Kumar (PW5) & HC Zahid Hussain (PW4) reached at Katra Rai Ji and they apprehended the accused Vicky who was carrying one potli of white and blue colour in his right hand. He further deposed that on suspicion they got stopped the said person and checked the said potli and on checking the potli was found containing two cartoon. Both cartoons were checked and were found containing 7 half bottles and 66 quarter bottles of illicit liquor of make Bagpiper. He informed the recovery of the liquor to the police station. IO ASI Inderpal Singh (PW7) came at the spot and he also checked and measured the liquor and after measuring it was found to be 7 half bottles and 66 quarter bottles of make Bagpiper. PW2 further deposed that HC Jahid Hussin took one half bottle and one quarter bottle as sample and both bottles were wrapped with the white colour cloth and sealed with the seal of ZH and remaining recovered bottles were kept in the cartoons and both cartoons were sealed with the seal of ZH. The case property was seized vide seizure memo Ex. PW1/A. He further admitted that IO prepared rukka and was handed over to me for registration of FIR. IO arrested the accused vide arrest memo Ex. PW2/B. FIR NO. 203 of 1999 State Vs. Vicky Berry Page 4 of 11
6. PW3 HC Sher Singh deposed that on 14.05.1999, he was posted at PS Paharganj as Constable. On that day, he received two pullandas sealed with teh seal of ZH with excise form from MHC (M) PS Paharganj for depositing in the excise laboratory vide RC No. 45/21 where he deposited both the pullandas with excise form and the receipt of which was deposited by him with the MHC (M). He further stated that as long as the case property remained in my possession, he did not tamper with the same.
7. PW4 PW3 HC Sher Singh deposed that on 14.05.1999, .10.06 he joined investigation with IO and deposed in respect of the measuring of liquor and seizure of liquor vide seizure memo Ex. PW2/A.
7. PW4 deposed that he on receiving DD No. 13A regarding the recovery of the liquor reached at the spot and did writing work and arrested the accused vide arrest memo Ex. PW2/C.
8. PW5 HC Sita Ram deposed that on on 21.10.06 two plastic cans were deposited by HC Prakash Chand with excise form M29 and the plastic cans were sealed with the seal of TC. He further deposed to have made entry in register NO. 19 at Sr. No. 2942 and same was sent to Excise FIR NO. 203 of 1999 State Vs. Vicky Berry Page 5 of 11 Lab through HC Parkash vide RC No. 132/21.
9. No other PW was examined. PE was closed vide order dated 18.04.2011. Accused was examined under Section 281 Cr.P.C. read with Section 313 Cr.P.C. wherein he submits that he has been falsely implicated in the present case and he had been lifted from his house and nothing was recovered from his possession. He has not led any defence evidence in his favour.
10. I have heard the Ld. APP as well as Ld. Counsel for the accused and I have gone through the entire record carefully.
11. It is observed that according to the material PWs i.e. PW2, PW3 and PW4 as well as the site plan Ex. PW4/D, the place where the accused was apprehended is a public place. It is directly in front of Sunder Lal Jain Hospital. The time of apprehension of the accused is 2 pm. It is admitted by PW1 in his cross examination that he had not asked any public persons or shopkeepers to join the proceedings even after the arrest of the accused although, at that time several persons were reportedly present. He could not remember whether the IO had asked the shopkeeper to join the proceedings . As per IO /PW4, he had asked 34 persons to join the proceedings however, none had agreed and had left without stating their names and addresses. In FIR NO. 203 of 1999 State Vs. Vicky Berry Page 6 of 11 his cross examination, he again admitted that there were several persons on the spot, however, he had not given any notice to the member of the public who had refused to join the proceedings. Further, according to PW3, the IO (PW4) had arranged empty bottle of 750 ml and two bottles of 350 ml alongwith one bucket and one jug from the Kabadi shop. However, as per PW4/ IO there were no shops at the place of occurrence. Accordingly, the police party could have at least examined owner of the Kabadi shop or the persons from whom measuring material was obtained. However, it is not so.
12. Here, it would be appropriate to refer to the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55, Punjab & Haryana High Court wherein it is observed as under : "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.
13. The explanation given that certain public persons were requested but they refused does not appeal to any common sense and does not appear plausible as even names and address of those persons and requests had not FIR NO. 203 of 1999 State Vs. Vicky Berry Page 7 of 11 been mentioned. Admittedly, no legal action has been taken against any of the persons who refused to join the investigations. This casts doubt about the sincere efforts made by the investigating officer to join public witnesses. In ROOP CHAND VS. STATE OF HARYANA 1992 (1) CLR 69, it was observed that such explanation are unreliable.
14. In case of PREM SINGH VS. STATE 1996 CRL.L.J 3604 (DELHI) and in case of PAWAN KUMAR VS. DELHI ADMN. 1989 CRL 0127 DEL the courts observed as under : "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar.
According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there.
It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuter for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no efforts was FIR NO. 203 of 1999 State Vs. Vicky Berry Page 8 of 11 made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstances throwing doubt on the arrest of the recovery of the knife from the person of the accused."
15. At the same time, I am also reminded of the aspect that so far the arguments in respect of non joining of public witness is concerned, it is well settled law that 'the case of the prosecution cannot be thrown away merely on the ground that public witnesses have not been joined. Reliance is placed upon the judgement titled Ambika Prasad & Anr Vs. State reported in 2002 (2) Crimes 63 SC wherein it has been held 'Independent persons are reluctant to be a witness or to assist the investigation. In any case,if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses'.
FIR NO. 203 of 1999 State Vs. Vicky Berry Page 9 of 11
16. Reliance is also placed upon judgement titled Appa Bhai Vs. State of Gujrat reported in AIR 1988 SC 696 wherein it is observed, "
These days people in the vicinity where the occurrence took place avoid to come forward to give evidence and civilized persons are in sensitive when crime is committed in their presence and they withdraw both from the victim and vigilance'
17. At the same time in such a scenario, the court will have to look for further corroboration amongst the testimonies of the police officials to the recovery and if their appear to be no material contradictions amongst their statements, then the court may formulate an opinion and come to the conclusion that the factors leading to non joining of public witnesses, in a particular case, may be the same in the manner explained by the PWs and therefore, the court may rely upon the testimonies of the police witnesses to recovery.
18. In the instant case, there are several contradictions amongst the statement of PWs 3 and 4. For instance, the PWs are not deposing cogently about the place where the paper work during the investigation was took place. There also appears to be contradictions about their deposition regarding the distance of the accused from PWs 2 and 3 at the time he was reported. I have already pointed out to factum regarding the contradictions FIR NO. 203 of 1999 State Vs. Vicky Berry Page 10 of 11 pertaining to the presence of shopkeepers in view of the existence of the Kabadi shop. These contradictions are sufficient to rule that further corroboration to the testimony of recovery witnesses is indeed required which is not the case herein in the absence of public witness.
19. It is pertinent to mention here that the incident took place on 21.10.06 whereas the sample of illicit liquor was deposited in excise laboratory on 23.11.06. It is clear that there is ordinate delay in sending the sample/ case property to the excise laboratory which has not been explained and in such circumstances, when the seal was not handed over to independent person and remained with the police officials of the same police station where the property was lying, benefit of doubt must be given to the accused as observed in Ajit Singh Vs. State of Punjab 1984 (2) RCR 1995. In this case no effots were made to hand over the seal after use to independent public person also in this case in view of the ratio of the judgement SAIFULLA VS. STATE 1998 (1) SCC 497 (DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to be accused.
20. Now since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts, the only plausible finding which FIR NO. 203 of 1999 State Vs. Vicky Berry Page 11 of 11 can be given against the accused is that of not guilty. Accordingly, the accused is acquitted in the present case. Bail bond of accused is extended in terms of section 437A Cr.PC Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any. File be consigned to record room.
Announced in the open court (MANISH YADUVANSHI) on 29.02.2012 ACMM01 DELHI
It is certified that this judgement contains Twelve Pages and each page bears my signature.
(MANISH YADUVANSHI) ACMM01 DELHI FIR NO. 203 of 1999 State Vs. Vicky Berry Page 12 of 11