Delhi District Court
16. It Has Been Held In Case Of "Sadhu ... vs State Of Punjab" 1997(3) on 22 May, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Sunita
FIR No. 253/2002
PS Paschim Vihar
U/s 61 Punjab Excise Act
JUDGMENT
C C No. : 658/3/10
Date of Institution : 21.12.2002
Date of Commission of Offence : 08.06.2002
Name of the complainant : Ct. Basti Ram No. 1759/W
Name & address of the accused : Sunita
W/o Rajesh
R/o Jhugg No. 469, Meera Bagh,
Paschim Vihar, Delhi
Offence complained of : U/s 61 Punjab Excise Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 26.04.2014
Date of announcing of judgment : 22.05.2014
BRIEF STATEMENT OF THE REASONS FOR THE DECISION State v. Sunita U/s 61 Punjab Excise Act FIR No. 253/02 PS Paschim Vihar
1. Vide this judgment this court shall dispose of the present case u/s 61 Punjab Excise Act.
2. The briefly stated story of the prosecution is that on 08.06.2002 at about 7.20 pm at Ambedkar Statue, Meera Bagh Jhuggi, Delhi the accused Sunita was found in possession of one plastic container containing 10 quarter bottles of Bony Scott without any permit or license and thus the accused is alleged to have committed an offence under Section 61 Punjab Excise Act. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter charge under Section 61 Punjab Excise Act was framed against her vide order dated 23.10.2003 to which she pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined five witnesses i.e (1) HC Naresh (2) HC Basti Ram (3) Ct. Raj Kumar (4) ASI Sushil Kumar and (5) SI Balwan Singh.
5. PW1 HC Naresh proved the FIR as Ex. PW1/A and endorsement on the rukka as Ex. PW1/B.
6. PW2 HC Basti Ram deposed that on 08.06.2002 he was posted at PS Paschim Vihar. On that day he was on patrolling duty. At about 07:10 PM, when he was present at Meera Bagh Jhuggis, one secret informer met him State v. Sunita U/s 61 Punjab Excise Act FIR No. 253/02 PS Paschim Vihar and informed him that one lady in Jhuggi is selling illicit liquor and if raided she can be apprehended. Thereafter, he asked 3/4 passersby to join the raiding but none agreed and left the spot without disclosing their names and addresses. Thereafter he organized a raiding team including witness and secret informer. At about 07:20 PM, at the pointing out by secret informer, He apprehended the accused alongwith one plastic katta. On checking the said plastic katta, 10 quarter bottles of bonny scott were found inside the same. Thereafter, witness informed to PS Paschim Vihar, from where ASI Balwan Singh and Ct. Jasbir came at the spot and he handed over the accused and case property to him. IO recorded his statement Ex.PW2/A. IO asked 3/4 passersby to join the investigation but none agreed and left the spot without disclosing their names and addresses. IO counted the liquor quarter bottles, which were 10 in total. One quarter bottle was taken out for sample purpose and remaining were kept in the said plastic katta. The sample bottle as well as the plastic katta were sealed with the seal of 'BS'. Form M29 was filled up by the IO and seal was handed over to Ct. Jasbir after use. IO took the possession of case property vide seizure memo Ex.PW2/B. Thereafter, IO prepared the rukka and sent Ct. Jasbir to PS for registration of FIR. After registration of FIR, he returned back at the spot and handed over original rukka and carbon copy of FIR to the IO. IO prepared the site plan Ex.
State v. Sunita U/s 61 Punjab Excise Act FIR No. 253/02 PS Paschim Vihar PW2/C at his instance. Thereafter, IO arrested the accused vide memo Ex.PW2/D and Lady Ct. Sheela conducted personal search of accused vide memo Ex.PW2/E. The accused was released on bail at the spot. The case property was deposited in the malkhana. He identified the accused and the case property in the court. However an observation was made by the court that most of the quarter bottles produced as case property were empty.
7. During cross examination, witness stated that he left the PS at about 05:30 PM on foot. He did not remember the DD Number. The spot in question was the residential area. IO had prepared seizure memo before sending the rukka. Ct. Jasbir left for PS at around 08:30 PM and returned back at 09:15 PM. During this period IO prepared the site plan and obtained his signature on the same. He admitted that source of light has not been shown in the site plan Ex.PW2/C. He denied the suggestion that nothing was recovered from the possession of accused.
8. PW3 Ct. Raj Kumar deposed that on 25.06.2002 he was posted at PS Paschim Vihar and on that day on the instructions of IO, he collected the same i.e quarter bottle of liquor duly sealed with the seal of BS alongwith excise form and same was deposited in excise lab. He returned the receipt to MHC(M) and IO recorded his statement on the same day and so far as the sample remained with him the same was not tampered with.
State v. Sunita U/s 61 Punjab Excise Act FIR No. 253/02 PS Paschim Vihar
9. PW4 ASI Sushil Kumar deposed that on 25.07.2002 the present case was marked to him. He collected the excise result. He prepared the challan and filed before the court.
10. PW5 deposed that on 08.06.2002 on receipt of DD no. 15A, he reached at the spot i.e Meera Bagh Jhuggi along with Ct. Jasbir Singh. There, he met Ct. Basti Ram who handed over him recovered case property i.e a katta containing quarter bottles of illicit liquor bonnie scott for sale in Rajasthan only. He also handed over the accused Sunita. On counting, there were 10 quarters. One quarter bottle was taken out as sample and rest of them were put in the same katta. Both were separated and sealed with the seal of DS. He recorded the statement of Basti Ram. He prepared the seizure memo of the recovered liquor Ex. PW2/B. Thereafter, he made endorsement Ex. PW5/A on the statement of Ct. Basti Ram. He sent Ct. Jasbir to the PS for registration of FIR. Thereafter he prepared the site plan Ex. PW2/C. Lady Ct. Sheela arrived at the spot and he effected the arrest of the accused vide memo Ex.PW2/D. Personal search of the accused was carried out vide memo Ex. PW2/E. On 25.06.2002 he sent the sample to the excise lab through Ct. Raj Kumar for examination. Thereafter, he was transferred and he handed over the file to MHC(R). He identified the accused and the case property in the court.
State v. Sunita U/s 61 Punjab Excise Act FIR No. 253/02 PS Paschim Vihar
11. During cross examination, he stated that the place where he reached on the receipt of call was an area surrounded by the residential houses. He admitted that no notice was served on the public person who refused to join the investigation. He left the PS at about 7.30 pm and reached at the spot within 10 minutes. He had prepared seizure memo before sending rukka. Ct. Jasbir left with rukka at about 8.30 pm and reached at the spot 8.45 pm. He had not prepared any document in the meanwhile. Ct. Jasbir singh arrived at the spot alone along with copy of FIR and original rukka. He had not obtained the signature of Ct. Basti Ram on the site plan. He had prepared the site plan at around 9.50 pm. It was natural dark but the street light was there. He admitted that no source of light is shown in memo Ex. PW2/C. He admitted that site plan and seizure memo do not bear his signatures. He voluntarily stated that both are in his handwriting. Once lady constable arrived at the spot and she remained with the accused. He could not recall when he finally left the spot. He stated that he himself lifted the case property in his hand and got it deposited in the PS. After twothree days, the seal was handed over back to him. He had not made any alteration on those documents which were prepared by him before sending the rukka. He denied the suggestion that nothing was recovered from the possession of the accused.
State v. Sunita U/s 61 Punjab Excise Act FIR No. 253/02 PS Paschim Vihar
12. Thereafter, the PE was closed and statement of accused was recorded in which he denied all the allegations and pleaded innocence. No DE was led despite opportunity.
13. I have heard the brief submissions addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
14. The Ld. Counsel for accused has submitted that the investigation conducted by the IO is marred with loopholes and illegalities. Further, the accused was not arrested by a lady police officer as per the provisions of Cr.P.C. Hence, IO has flouted the legal provisions. He further submits that no public person was joined in investigation despite availability and no action was taken by the IO against those public persons also.
15. It is a cardinal principle of criminal jurisprudence that prosecution is supposed 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 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 the accused. Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such reason doubt in the prosecution case State v. Sunita U/s 61 Punjab Excise Act FIR No. 253/02 PS Paschim Vihar entitles the accused to acquittal.
16. It has been held in case of "Sadhu Singh V/s State of Punjab" 1997(3) Crime 55 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."
17. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference: 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 :
(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.
State v. Sunita U/s 61 Punjab Excise Act FIR No. 253/02 PS Paschim Vihar
18. In the present case, the above said provision appears to 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 Delhi High Court "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."
19. As per story of prosecution, on 08.06.2002 at about 7.20 PM at Meera Bagh, Jhuggis, Delhi, the accused was found in possession of 10 quarter bottles of illicit liquor. As per PWs, the case property was duly sealed with the seal of BS and the seal after use was handed over to Ct. Jasbir. However there is no memo/ case diary place on record to this effect.
20.No Public person has been made as a witness in the present case.
Admittedly the place of incident was the residential area. However, no
State v. Sunita U/s 61 Punjab Excise Act
FIR No. 253/02 PS Paschim Vihar
sincere efforts was made by the IO to persuade them to join the investigation. No notice was served upon the said witnesses.
21. 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 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 State v. Sunita U/s 61 Punjab Excise Act FIR No. 253/02 PS Paschim Vihar explanation for nonjoining 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''.
22.Furthermore, while during the examination in chief of PW2, case property was produced and was observed by the court that most of the bottles were empty.
23.Hence, in view of the above, story of the prosecution becomes doubtful and the benefit of doubt certainly goes in favour of the accused. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused Sunita is acquitted for the charges punishable U/s 61 Punjab Excise Act levelled against her.
24.As per section 437A Cr.P.C accused is admitted to bail on her furnishing personal bond in the sum of Rs.10,000/ with one surety of like amount. ANNOUNCED ON 22.05.2014 (SAUMYA CHAUHAN) MM07(West)/ Tis Hazari Court /22.05.2014 Certified that this judgment contains 11 pages and each page bears my signatures.
(SAUMYA CHAUHAN)
MM07(West)/ Tis Hazari Court /22.05.2014
State v. Sunita U/s 61 Punjab Excise Act
FIR No. 253/02 PS Paschim Vihar