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Delhi District Court

State vs . Ashok Kumar on 9 May, 2014

               IN THE COURT OF SH. HARVINDER SINGH,
               METROPOLITAN MAGISTRATE (WEST) ­ 03,
                      TIS HAZARI COURTS, DELHI.
                                                         FIR No.541/2008
                                                             PS - Nangloi
                                         U/s - 78­61­1­14 Excise Act, 1914
                                                   State Vs. Ashok Kumar
Unique Case ID No.02401R1521412008

                                 J U D G M E N T

(a) Sr. No. of the case 4521/1/08

(b) Date of offence 03.09.2008

(c) Complainant Ct. Bhupender Singh, No.922­DO, PS Nangloi, New Delhi.

(d) Accused Ashok Kumar S/o Late Sh. Kitab Singh R/o H. No.167, Risal Garden, Nangloi, New Delhi.

(e) Offence(s) Under Section 61­1­14 of The Punjab Excise Act, 1914.

 (f) Plea of accused       Pleaded not guilty

 (g) Final Order           Acquitted

 (h) Date of institution   25.10.2008

 (i) Date when judgment  Not reserved
     was reserved

 (j) Date of judgment      09.05.2014

1. The allegations against accused are that on 03.09.2008 at 06:00 am at Biscuit Factory Road Chauraha, Nihal Vihar, Nangloi, Delhi, accused was found in possession of illicit liquor contained in milk canes and katta as per seizure memo mark 'X' which accused was carrying in motorcycle make Bajaj Discover bearing FIR No.541/2008 Page No. 1 of 15 registration number DL­4SAY­7165. According to prosecution, accused thereby committed offence punishable under Section 61­1­14 of Punjab Excise Act, 1914 extended to Delhi.

2. After completion of investigation, charge­sheet was filed. Charge for the offence under Section 61 of Punjab Excise Act, 1914 was framed against the accused vide order dated 11.08.2009 to which accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE

3. Prosecution adduced evidence in support of its case. In this matter, PW1 HC Amba Dass has proved and exhibited formal FIR Ex.PW1/A and endorsement on Rukka Ex.PW1/B. PW1 was examined, cross­examined and was discharged.

4. PW2 Ct. Bhupender has deposed that on 03.09.2008, he was posted at PS Nangloi, PP Nihal Vihar. On that day, he was patrolling in the morning in the area of Nihal Vihar at 50 feet Road. While patrolling at about 06:00 am, a secret informer informed him that one motorcyclist would come from Nangloi side and will approach towards Biscuit Factory and who is having in his possession illicit liquor. He immediately reached at Biscuit Factory Road near the crossing. There, he met with one Ct. Ravinder from Excise Department, he was not wearing police uniform. He also stated about the same secret information. They both kept waiting by the side of FIR No.541/2008 Page No. 2 of 15 the road. In the meanwhile, they noticed one motorcyclist approaching from Nangloi side. The registration number of motorcycle was DL­4SAY­7165. The motorcycle was having five milk containers and one plastic sack loaded on it. The motorcycle was tried to stop, but, its rider attempted to take about turn. They apprehended him, he is the accused. They checked the milk containers and found it containing quarter bottles of liquor. The plastic sack was also having quarter bottles of liquor. Ct. Ravinder called PCR by dialing phone number 100. In response to their information, HC Mahavir reached there from PP Nihal Vihar. They handed over the recovered liquor, accused and his motorcycle to HC Mahavir Singh. He checked the recovered liquor and found that there were 90 quarter bottles of Murthal No.01 country made liquor in one milk container, three other milk containers were having 80 quarter bottles each of Orange Masaledar country made liquor for sale in Haryana only and the fifth container was having 90 quarter bottles of Narangi Special. The plastic sack was found containing 90 quarter bottles of Bonnie Scott. HC Mahavir requested 4 - 5 passerby to join the proceedings, but, none agreed and left without disclosing their names and addresses on personal grounds. The recovered liquor was seized by IO vide seizure memo Ex.PW2/A. His statement was also recorded by IO Ex.PW2/B. Thereafter, IO prepared Tehrir and sent him to police station for getting FIR registered. After getting FIR Ex.PW1/A registered, he returned at the spot. He FIR No.541/2008 Page No. 3 of 15 handed over original Tehrir/Rukka along­with copy of FIR to the IO. IO arrested the accused vide arrest memo Ex.PW2/C and conducted his personal search vide memo Ex.PW2/D. The motorcycle which accused was using for transporting the liquor was also seized by the IO vide memo Ex.PW2/E. The RC of the motorcycle and driving license of the accused was also seized vide memo Ex.PW2/F and Ex.PW2/G respectively. He correctly identified the accused and case properties Ex.P1, Ex.P2, Ex.P3, Ex.P4, Ex.P5 and Ex.P6 (Collectively) and the milk containers Ex.P1/A, Ex.P2/A, Ex.P3/A, Ex.P4/A, Ex.P5/A and Ex.P6/A. Subsequently on 10.09.2008, he was directed to take the samples from MHC(M) in the present case. Accordingly, he collected 12 samples which were sealed in a polybag with the seal of 'MS' along­with excise form and deposited the same at excise lab in sealed intact condition. During the period the samples remained in his possession, the same were not tempered with in any manner. In his cross­examined by Ld. APP for the State, he has deposed that IO had marked the milk containers as serial No.01 to 05 and further that IO had separated 02 quarter bottles each from the milk containers and the plastic sack recovered from the accused as samples and also marked the sack with serial No.06. He further deposed that IO had prepared form M - 29 and further that IO had sealed the milk containers with help of cloth with the seal of 'MS'. He further deposed that IO had sealed the plastic sack as well as the samples separated with the FIR No.541/2008 Page No. 4 of 15 seal of 'MS' and further that IO had put seal mark on Form M - 29, however, he could not state all these facts earlier due to memory loss due to passage of time. In cross­ examined by Ld. Counsel for the accused, he admitted that the spot is a busy public place and further that no public witnesses are cited in the case, but, deposed that IO requested many passerby, but, none of them agreed to join the investigation. He further admitted that no notice was served to any public person. PW2 examined, cross­examined and was discharged.

5. PW3 Ct. Ravinder Malik has deposed that on 03.09.2008, he was posted in Excise Department L­Block, Vikas Bhawan as Constable. On that day, he was standing at Biscuit Factory at Nihal Vihar on receiving secret information. At about 06:00 am, Ct. Bhupender reached at the spot. He told him that he had also received secret information that one person would come on motorcycle with the milk container filled with illicit liquor. They both kept waiting by the side of the road. In the meanwhile, they noticed one motorcyclist approaching from Nangloi side. The motorcycle number was DL­4SAY­7165. The motorcycle was having five milk containers and one plastic sack loaded on it. The motorcycle was tried to stop, but, its rider attempted to take about turn. They apprehended him, he is the accused. They checked the milk containers and found it containing quarter bottles of liquor. The plastic sack was also having quarter bottles of liquor. He called PCR by dialing phone FIR No.541/2008 Page No. 5 of 15 number 100. In response to his information, HC Mahavir reached there from PP Nihal Vihar. They handed over the recovered liquor, accused and his motorcycle to HC Mahavir Singh. He checked the recovered liquor and found that there were 90 quarter bottles of Murthal No.01 country made liquor in one milk container, three other milk containers were having 80 quarter bottles each of Orange Masaledar country made liquor for sale in Haryana only and the fifth container was having 90 quarter bottles of Narangi Special. The plastic sack was found containing 90 quarter bottles of Bonnie Scott. HC Mahavir requested 4 - 5 passerby to join the proceedings, but, none agreed and left without disclosing their names and addresses on personal grounds. The recovered liquor was seized by IO HC Mahavir vide seizure memo Ex.PW2/A. Statement of Ct. Bhupender was also recorded by IO. Thereafter, IO had prepared Tehrir and sent Ct. Bhupender to police station for getting FIR registered. After getting FIR Ex.PW1/A registered, Ct. Bhupender returned at the spot and he handed over original Tehrir/Rukka along­with copy of FIR to the IO. IO had arrested the accused vide arrest memo Ex.PW2/C and conducted his personal search vide memo Ex.PW2/D. The motorcycle which accused was using for transporting the liquor was also seized by the IO vide memo already Ex.PW2/E. The RC of the motorcycle and driving license of the accused was also seized vide memo Ex.PW2/F and Ex.PW2/G. IO had marked the milk containers as serial No.01 to 05 FIR No.541/2008 Page No. 6 of 15 and separated 02 quarter bottles each from the milk containers and the plastic sack recovered from the accused as samples and also marked the sack with serial No.06. IO prepared form M - 29 and he sealed the milk containers with help of cloth with the seal of 'MS'. IO sealed the plastic sack as well as the samples separated with the seal of 'MS'. IO put seal mark on Form M - 29. He correctly identified the accused and case property. In his cross­examination by Ld. Counsel for the accused, he admitted that the spot is a busy public place and no public witnesses is cited, but deposed that IO requested many passerby, but, none of them agreed to join the investigation. He further admitted that no notice was served to any public person. PW3 examined, cross­examined and was discharged.

6. PW4 ASI Mahavir Singh has deposed that on 03.09.2008, he was posted at PP Nihal Vihar, PS Nangloi as HC and was on night emergency duty. On receiving D.D.No.08 Ex.PW4/A at PP Nihal Vihar at 06:30 am, he immediately went to the place of incident i.e. biscuit factory chowk, Nihal Vihar. There, he met with Ct. Bhupinder and Ct. Ravinder when he made the inquiry from them Ct. Bhupender disclosed the whole facts to him and gave his statement Ex.PW4/A. He also requested passer by to join the investigation, but, none of them agreed and left the place without disclosing their names and addresses. Ct. Bhupender handed over to him the custody of accused as well as handed over the possession of one motorcycle on which five FIR No.541/2008 Page No. 7 of 15 milk drums were attached with hooks attached to motorcycle and one plastic bag. He opened the milk drums and he found that there was no milk in the drums and in fact drums were containing quarter bottles of country made liquor. When he checked the first drum it found containing 90 quarter bottles having label of Murthal No.01 Masaledaar Sharaab for sale in Haryana. Thereafter, on opening the second drum he found it containing 80 quarter bottles having the label of Orange Falkon Masaledaar Desi Sharaab for sale in Haryana. In the third drum as well as in the forth drum also, he found 80 quarter bottles having the label of Orange Falkon Masaledaar Desi Sharaab for sale in Haryana. In the fifth one drum, he found it containing 90 quarter bottles Narangi Special Desi Masaledaar Sharaab for sale in Haryana only. Thereafter, he also opened the plastic bag and it found containing 90 quarter bottles having label of Bonne Scoott Whiskey for sale in Chandigarh only. He took out from each drum as well as from the plastic bag two bottles as a sample and sealed them separately and kept them in a plastic katta and sealed it with the seal of 'MS' and the remaining liquor were seized in the respective drums as well as plastic katta with the seal of 'MS' and the seizure memo was prepared as Ex.PW2/A. Thereafter, he filled the Form No.25 and the impression of seal was taken Ex.PW4/B and thereafter, seal was handed over to Ct. Bhupender. Thereafter, he prepared the Rukka Ex.PW4/C and handed over the Rukka to Ct. Bhupender for registration of FIR. After registration of FIR No.541/2008 Page No. 8 of 15 FIR, Ct. Bhupender came back at the spot and handed over to him original copy of Rukka as well as copy of FIR. He seized the motorcycle Ex.PW2/C. He also seized the RC of motorcycle Ex.PW2/F. He seized the driving license of accused vide Ex.PW2/C. The photographs of the motorcycle and case property were clicked from the official camera Ex.PW4/C. Thereafter, he prepared the site plan Ex.PW4/D and thereafter, accused was arrested vide arrest memo Ex.PW2/C. Personal search of accused was conducted vide personal search memo Ex.PW2/C. He correctly identified the accused and case properties Ex.P1, Ex.P2, Ex.P3, Ex.P4, Ex.P5 and Ex.P6 (Collectively) and the milk containers Ex.P1/A, Ex.P2/A, Ex.P3/A, Ex.P4/A, Ex.P5/A and Ex.P6/A. In his cross­examination by Ld. Counsel for the accused, he deposed that in D.D.No.08 departure time is not mentioned and further that on D.D.No.08 does not bear stamp of Police Station. He further deposed that place of incident was a public place and further that public persons were passing by. PW4 examined, cross­examined and was discharged.

7. On 23.04.2014, further prosecution evidence was closed by the Court. STATEMENT OF ACCUSED

8. After closure of prosecution evidence, the statement of the accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973. Incriminating evidence was FIR No.541/2008 Page No. 9 of 15 put to him. He denied all the allegations and stated that he is innocent and has not committed any offence. Accused opted not to lead any evidence in his defence.

9. Final arguments from both sides heard. Record is perused. APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS

10. In the present case, accused person has been charged for committing an offence under Section 61 of The Punjab Excise Act, 1914. All four witnesses are official witnesses. In order to prove the guilt of the accused, prosecution has to prove that the accused was found in possession of illicit liquor in contravention of notification issued by Delhi Administration and thereby committed an offence under Section 61 of Punjab Excise Act, 1914. Prosecution has examined PW2, PW3 and PW4 to prove the recovery of illicit liquor from the accused. The alleged spot of recovery is a busy chaurasta/place at main road. However, witnesses have not deposed regarding any concrete effort to join public witnesses being made by them at the time of affecting the alleged recovery of illicit liquor, despite their availability on the spot.

11. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In view of this Court, the non­joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.

FIR No.541/2008 Page No. 10 of 15

In case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), it was held as that :­ "where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected".

In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :­ "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Non­examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye­witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."

In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under : ­ "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found ­ as in the present case ­ that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."

In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : ­ "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."

FIR No.541/2008 Page No. 11 of 15

In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : ­ "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 commuters 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 effort was made to join any public witness even though number of them were present. No plausible 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 circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.

In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under : ­ "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."

In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) FIR No.541/2008 Page No. 12 of 15 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.

In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non­joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.

12. On 13.03.2012, the case property was produced first before the Court and it was observed that the case property has been produced in one plastic sack without seal and in milk containers with broken seal/illegible seal/illegible case particulars containing quarter bottles of illicit liquor and many of bottles were empty. This shows that there might be tempering with the case property when the same was kept in the Malkhana. It further caste the shadow of doubt on the case of the prosecution as the condition of the case property contradict the testimony of prosecution witnesses.

In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73 it was observed as under :­ "During the trial when the case property was produced namely the components of the still, there was no identify mark or chit on the case property to indicate that it related to the alleged recovery pertaining to the petitioner. There was no FIR No. or even chit placed on such a property. When such is the situation, the said property could be used in each and every case against anybody. FIR No.541/2008 Page No. 13 of 15 There has to be proper identification of the property."

In the case of "State of Punjab Vs. Bagga Singh" 1987 Crl. App. No. 578 (P&H) DB, it was held that recovery was not corroborated by the evidence of official witnesses since "the case property produced before the trial court does not bear any identity marks".

In the case of "Datu Ram Vs. State" 1996 1 AD (Delhi) 52, it has been held that all the links starting from the seizure of sample till the same reaches the hands of public analyst must be proved to conclude that the seals remained intact.

In the case of "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that in the absence of any link evidence that the property deposited in the malkhana remained intact till brought before the Court, accused is entitled to benefit of doubt.

In the case of "Ayub Khan Vs. State" (Delhi Administration) ILR 1989 Delhi 467, it was observed as under : ­ "Similarly, in the present case by not examining Malkhana Moharrir of the Police Station where the case property was kept, the prosecution has not been able to establish the chain to prove that the case property after being seized remained intact without being tampered with throughout the particularly when it remained in the Malkhana. Hence, for this short reason, it must be held that the appellant could not have been convicted of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act."

13. There are other facts/contradictions also on the record which erodes the credibility of prosecution evidence. PW2, PW3 and PW4 have deposed in their FIR No.541/2008 Page No. 14 of 15 examination­in­chief that PW4 seized the case properties vide seizure memo Ex.PW2/A before preparation of Rukka and before sending the Rukka for registration of the case. If, we believe that the illicit liquor and bus were seized vide seizure memos before sending of the Rukka then how come the seizure memos bear the particulars of this case. The seal after use was not handed over to any independent witness by investigating officer and the same also creates a doubt whether the case properties were genuinely recovered in this matter or not. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as 1996 JCC 497. In these circumstances, the above­said facts also erode the credibility of the prosecution evidence.

14. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given benefit of doubt in this matter. Accused person namely Ashok Kumar is accordingly, acquitted for the offence punishable under Section 61 of The Punjab Excise Act, 1914. Case properties be confiscated to the State and be destroyed after expiry of period of appeal.

Announced in open Court on May 09, 2014.

(HARVINDER SINGH) M.M.­03/THC (WEST), Delhi/09.05.2014 FIR No.541/2008 Page No. 15 of 15