Delhi District Court
In Re: State vs Ram Prasad on 2 February, 2010
IN THE COURT OF SHRI GAURAV RAO: METROPOLITAN
MAGISTRATE: DELHI
In Re: STATE VERSUS RAM PRASAD
F.I.R. No: 932/99
U/s 61/1/14 Punjab Excise
Act
P.S. Nangloi
Date of Institution of Case : 31.08.2000
Date of Judgment Reserved for: 02.02.2010
Date of Judgment : 02.02.2010
JUDGEMENT:
(a) The serial no. of the case : 4578/1/08
(b) The date of commission of offence : 02.09.1999
(c) The name of complainant : ASI Bhagwat Singh
(d) The name, parentage, : Ram Parshad,
of accused s/o Hori Lal, R/o Jhuggi No. 189, T Camp, Hastal,
Uttam Nagar, 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
(g) The final order : Acquitted
(h) The date of such order : 02.02.2010
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 02.02.1999 at about 6.30 PM at PVC Market, Tikri Kalan Road, Near Shri Ram Dharam Kanta, Nangloi, Delhi within the jurisdiction of police station Nangloi accused Ram Prashad was found in possession of 88 pouches of illicit liquor without any permit or licence, which he was carrying on scooter no. DL4W-0316 and thereby the accused committed offence u/s 61 of Punjab Excise Act 1914.
2. Charge sheet was filed in the court and in compliance of section 207 Cr.p.c. documents were supplied to the accused and vide order dated 28.09.2001, charge u/s 61/1/14 Punjab Excise Act was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined five witnesses, whereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded on 16.08.2007 wherein he claimed himself to be innocent having been falsely implicated in the case.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 DO HC Jagmer Singh proved the registration of FIR no. 932/99 as Ex. PW1/A.
5. PW2 Ct. Sukhbir Singh deposed that on 20.09.1999 while he was posted at PS Nangloi on the instruction of IO, MHC (M) handed over him quarter sample duly sealed with the seal of BS, form 29 which he took to excise lab and deposited the same in Excise Lab. After depositing the same, receipt was handed over to the MHC(M). The sample was not tampered during the period it remained in his possession.
6. PW3 ASI Bhagwat deposed that on 02.09.1999 while he was posted at PS Nangloi (PP Tikri Border), he along with Ct. Pawan Kumar were on patrolling duty on Government Motorcycle no. DL1SG-6126 and at around 6:30 p.m. they were present near Sriram Dharam Kanta, Near PVC Market. He further deposed that a scooter bearing no. DL4SW-S-316 was coming from the side of Haryana and on seeing the driver of the scooter tried to move his scooter towards Haryana side. The said scooter was chased for 150 Yds. and checked and 88 Quarter bottles of liquor lebeled with OAK Superior Whisky were found in the both the dikkies of it. He further deposed that accused was interrogated and he disclosed his name as Ram Prashad (correctly identified). He further stated that out of which 8 quarter bottles were separated for sample and remaining were kept in the same. Thereafter the bag as well as the sample quarter were sealed with the seal of BS and seal after use was handed over to Ct. Pawan Kumar. Form 29 was prepared, ruqqa Ex. PW3/A was prepared and he sent the same through Ct. Pawan Kumar for registration of the case. He further deposed that Ct. returned to the spot along with the copy of the FIR. He prepared the site plan Ex.PW3/B and seized the liquor along with the scooter vide Ex.PW3/C and accused was released on bail after conducting his jamatalashi vide Ex.PW3/D. He further deposed that on 20.09.1999 sample liquor was sent to Excise office through Ct. Sukhvir and after collecting the excise result challan was filed. This witness correctly identified the case property as Ex. P1 collectively.
In his cross examination he admitted that only FIR no. 932/99 was written on the katta and no other particulars were mentioned. He denied the suggestion that the accused was not arrested in the residential area. He stated that first of all he prepared the seizure memo, then site plan, arrest memo, personal search memo, personal bond. He stated that he does not remember whether the entire written was completed while sitting or standing. He stated that he left the spot at about 9.30 pm and stated that he does not remember as to how many papers he took the signatures of the accused. He denied the suggestion that the accused was arrested from his house or that the case property was planted upon him.
7. PW 4 HC Om Prakash, MHCM deposed that on 02.09.1999, IO ASI Bhagwati Prasad deposited the case property i.e one sealed plastic katta, sample bottles, form M-29 all sealed with the seal of BS and scooter no. DL-4SW-0316 in the malkhana vide entry no. 3465 in register no. 19. He further deposed that on 20.09.1999 on the instruction of IO, he handed over the sealed sample to Ct. Sukhvir vide RC no. 353/21/99 for depositing the same in excise office and Ct. Sukhvir handed over the receipt to him in this regard. He further deposed that case property was not tempered with during the time it remained in his possession and scooter was released on superdari.
In his cross examination he admitted that there is a reproduction of seizure memo in column no. 4 in register no. 10 and the name of the PS is also not mentioned.
8. PW 5 Pawan Kumar deposed on the same lines as PW 4.
In his cross examination he admitted that the accused was arrested from a residential area. He stated that IO did not ask any residential person to join the raid. He stated that he cannot tell as to how many memos were prepared by the IO at the spot or how many papers were signed by the accused. He stated that he signed the seizure memo before sending the rukka and when he signed the same all the particulars written on the seizure memo. He stated that he does not remember as to who gave the information about the arrest of the accused to his family members. He denied the suggestion that nothing was recovered from the accused.
9. This is all as far as prosecution evidence in the matter is concerned.
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 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 recovered liquor planted upon 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.
12. 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.
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 the explanation 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''.
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''.
14. In the present case admittedly the place of alleged recovery of the illicit liquor was a residential area and various houses were located however, none from the public could be joined by the police official during the alleged raid and seizure. In fact, PW 5 Ct. Pawan Kumar stated in his cross examination that IO did not ask any public person to join the raid. No action was taken/no notice was served those who refused to join the investigation and even their names were not noted down and the explanation as furnished by the police officials is unreliable. 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.
15. 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.
16. In the present case, the prosecution failed to produce the al- leged scooter bearing no. DL-4SW-0136 on which the accused was al- legedly carrying the liquor pouches. It was an important link which went missing in the prosecution story.
17. In the present case as is evident from Ex. PW4/A that no signa- tures of the person who deposited the case property were obtained by the MHC (M) in register no. 19 at Sl. No. 3. As admitted by the MHCM Om Prakash even the name of the PS was not mentioned on the register. Even the signatures of the person who took the sample to excise office was not obtained at Sl. No. 7. All this shows the lackadaisical manner/shoddy man- ner in which the entire investigation was carried on by the police officials. The entire procedure of recovery, deposit of same in Malkhanna and pre- servation of the case property was done in such a casual manner that it showed utter disregard to the establish procedure of investigation and thereby rendering the trial futile. When the case property was produced in the court the seal was found to be broken. These circumstances especially when the seal was not handed over to independent persons 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) RECENT CRIMINAL RE- PORTS 95.
18. Neither the road certificate via which the sample was allegedly sent to Laboratory could be proved by the prosecution. In the absence of both these material documents/missing link in the prosecution story benefit has to be given to the accused. Reliance can be placed upon 1994 Drugs cases page 154'', titled as ''Ghanshyam V/s State'' and ''72(1999) DLT 435'', titled as ''Sunil V/s State''.
19. In this case the FIR number is mentioned on the recovery memo/seizure memo. Same is written in the same ink/pen/flow as the other particulars on the said documents. Admittedly this document was prepared before registration of F.I.R. In the case of MOHD. HASHIM VS. STATE 1999 (6) A.D. (DELHI) 569 it was observed that when documents are prepared before registration of F.I.R. and it contains the F.I.R. No. then inference has to be drawn that either F.I.R. was recorded prior in time or the documents were prepared later on and in such cases benefit of doubt is to be given to the accused.
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 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 Ram Prasad is accordingly entitled for acquittal. I order accordingly. Surety bonds cancelled, sureties discharged. Endorsements, if any on the documents of surety be cancelled forthwith. No further orders are required to be passed in the matter.
23. File be consigned to Record Room as per rules and procedure.
Announced in the open (Gaurav Rao) Court on 02.02.2010 MM (West)/Delhi. 02.02.2010 F.I.R. No: 932/99 U/s 61/1/14 Punjab Excise Act P.S. Nangloi Pr: Ld. APP (s) for state. Accused is present on bail.
Final arguments heard. Put up for Judgment at 4:00 p.m. At 4:00 p.m. Vide my separate judgment the accused has been acquitted for the charges in the present matter.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents if any be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao) MM (W)/Delhi.
02.02.20 10