Delhi District Court
State vs . : Ganesh on 6 June, 2019
IN THE COURT OF SHRI. HIMANSHU RAMAN SINGH:
METROPOLITAN MAGISTRATE - 04 (SOUTHWEST)
DWARKA COURTS: DELHI
State Vs. : Ganesh
FIR No : 25/16
U/s : 33/58D Delhi Excise Act
P.S. : Kapashera
JUDGMENT
1. Sl. No. of the Case : 430681/16
2. Date of commission of offence : 28.01.2016
3. Date of institution of the case : 19.07.2016
4. Name of the complainant : SI Shashank Tripathi
5. Name of accused, parentage & : Ganesh
Address S/o Sh. Harnam Singh
R/o H. No. A24, Chander
Vihar, Nihal Vihar, New
Delhi.
6. Offence complained off : u/s 33 Delhi Excise Act
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 27.05.2019
9. Final order : Acquitted
10. Date of final order : 06.06.2019
State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 1 of 20
Brief statement of reasons for decision :
1. In the present case, the allegations against the accused are that on 28.01.2016, at about 12.40 a.m. at in front of BPCL Road, Dwarka Link Road, Delhi within the jurisdiction of PS Kapashera, accused was found in possession of 12 cartoon boxes of Impact Grain Whiskey having 48 quarter bottles, 4 cartoon boxes of Episode Classic Whiskey having 48 quarter bottles, 7 cartoon boxes of Asli Santra Masaledar Desi Sharab having 50 quarter bottles as described in seizure memo in violation of P10 Permit. At the complaint of complainant SI Shashank Tripathi, the present case was registered and after completion of investigation, chargesheet was filed against the accused for the offence punishable under section 33 Delhi Excise Act.
2. After going through the chargesheet and entire material available on record, cognizance was taken and the accused was summoned. Copy of charge sheet was supplied to him and provisions of Cr. P. C. were complied with. On the basis of prima facie evidence, charge was framed against the accused for the offence punishable under Section 33 (F) of Delhi Excise Act, to which he pleaded not guilty and claimed trial.
3. Prosecution filed the list of 12 witnesses and examined 08 witnesses.
4. PW1 ASI Kartar Singh deposed that on 28.01.16, he was posted at PS Kapashera as MHCM and proved the deposition of case property which was State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 2 of 20 mentioned at serial no. 1259/16 in register no. 19 and is Ex. PW1/A.
5. PW2 ASI Shashank Tripathi deposed that on 28.01.16, he along with HC Brij Lal, HC Satender and Ct. Pankaj was present at Golakhdham Temple in Bijwasan where he met with secret informer, who informed that vehicle carrying illicit liquor can be trapped if trap is laid on Dwarka Link Road. He shared the information with his senior officers and on their instructions, he went to Dwarka Link Road, Near BPCL main road at about 11:30 p.m and formed a raiding party. He further deposed that thereafter, we stopped a vehicle Maruti Esteem, baering registration no. DL 8CH 4987 of white golden color. He further deposed that on checking, we found cartoon boxes and on opening the cartoon boxes we saw that the cartoon was filled with boxes of "Impact Whiskey", "Episode Whiskey" and "Asli Santara" . We briefly counted 23 cartoons of liquor out of which 12 were of Impact Whiskey, 4 cartoons were of Episode Whiskey and 7 cartoons of Asli Masaledar. He further deposed that thereafter, he informed to the DO PS Kapashera and thereafter SI Yogendra Kumar reached at the spot and that he handed over the case property to SI Yogendra, who separated the samples and sealed the case property and filled Form M29. He also gave written complaint to IO, Ex. PW2/A and prepared rukka and got registered FIR through Ct. Rajender. At around 05: 00 a.m the second HC Sumer Singh arrived at the spot and the said IO drew up the site plan at my instance. The accused was interrogated and his disclosure statement was recorded. He was arrested and searched vide arrest and personal search State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 3 of 20 memo. IO recorded my statement on the same day.
6. PW3 HC Brij Lal deposed that on 27/28.01.16, he was posted as HC at excise intelligence bureau. SI Shashank Tripathi called me, HC Satender and Cont. Pankaj asked us to reach Golakhdham Mandir, Bijwasan Village. We reached at the spot at about 11:00 p.m. We also found secret informer at the spot. At about 11:30 p.m. we all went to Dwarka Link Road near BPCL main gate. At about 12:40 p.m. secret informer pointed out towards one vehicle i.e. Esteem car bearing no. DL8 CH4987 of light golden color. SI Shashank Tripathi made gesture to the driver of the vehicle to stop the vehicle and to park the vehicle on the side of the road. SI Shashank Tripathi found some cartoon on the back seat on the vehicle. SI enquired the driver about his name and told that his name was Ganesh S/o Harnam Singh. Thereafter SI told DO Kapashera and told him about the circumstances. At about 01:30 a.m. SI Yogender along with one Cont. reached at the spot. We counted the cortoons at the spot. There were total 23 cartoons out of which there was 12 cartoons of Impact Whiskey, 4 cartoons of Episode Whiskey and 7 cartoons of Asli Santara.
7. PW4 Ct. Pankaj deposed that in the intervening night of 27/28.01.2016, he was posted as a Constable at Excise Intelligence Bureau. On that day, SI Shashank Tripathi called him, HC Satender and HC Braj Lal and asked them to reach Golak Dham Mandir, Bijwasan Village as SI Shashank has received a secret information about illicit liquor by one State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 4 of 20 person.
Thereafter, he alongwith HC Satender, HC Braj Lal and SI Shashank Tripathi reached near Golak Dham Mandir, Bijwasan Village, one secret informer also met them at the spot. At about 11.30 pm, they all went to Dwarka link Road near BPCL main gate and laid a trap.
Thereafter, they started searching the vehicles going towards Dwarka Side. At about 12.40 pm secrete informer pointed towards at Esteem Car no. DL 8CH 4987 light golden colour. SI shashank Tripathi made gesture to the driver of Esteem car to stop the vehicle and to park the vehicle on the side of the road. They found the foul smell coming out from the car.
SI shashank Tripathi found some cartons of illicit liquor from the back side of the car. On checking they found some more cartons in the dikki of the car. Name of the driver revealed as Ganesh. ( accused is present in the court and correctly identified by the witness). Information was given to PS Kapashera. IO SI Yogender alongwith ct. Rajender reached at the spot. Accused and case property was handed to the IO.
Thereafter, IO checked the car and found total 23 cartons, out of them 12 cartons of Impact Whiskey, 4 cartons of Episode Whiskey and 7 cartons of Asli Santra. Thereafter, IO gave serial no. 1 to 23 to all cartons. Carton no. 1 to 12 were containing 48 quarter bottles of Impact Whiskey for sale in Haryana. IO took one quarter bottle each from carton no. 1 to 12. IO gave serial no. 13 to 16 of Episode Whiskey Cartons for sale in Haryana. Each carton was containing 48 quarter bottles of Episode Whiskey. IO took one quarter bottle as sample from carton no. 13 to 16. IO gave serial no. 17 State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 5 of 20 to 22 of Asli Santra Masaledar Sharab containing 50 quarter bottles each of Asli Santra for sale in Haryana. IO took one quarter bottle from serial no. 17 to 22. IO gave serial no. 23 to last carton which was containing 12 bottles of Asli Masaledar Santra. IO took one bottle as sample from serial no. 23.
All the sample quarter bottles and bottles were separately sealed with the seal of YK and remaining liquors were kept in same cartons and sealed with the seal of YK and seized vide memo Ex. PW2/B. Car no. DL 8CH 4987 seized vide memo Ex. PW2/C. Form M29 was filled by the IO at the spot and same is Mark X. Thereafter, on the complaint of SI shashank Tripathi, IO prepared rukka and got the case registered. Rukka was handed over to Ct. Rajender. After registration of FIR, he returnbed back to spot and handed over the copy of FIR and original rukka to HC Sumer. IO prepared the site plan at the instance of SI shashank Tripathi already Ex. PW2/D. Accused Ganesh was arrested vide memo Ex. PW2/F. Accused is present in the court and correctly identified by the witness. IO recorded the disclosure statement of accused Ex. PW2/E. After use, seal was handed over to Ct. Rajender vide memo Ex. PW2/H. IO recorded his statement. He can identify the case property if shown to him.
Photographs of car no. DL 8CH 4987 was shown to the witness. Witness correctly identified the car in the photographs and same is Ex. PW4/A colly. He can identify case property, if shown to him. Case property is already Ex. P1 colly. Identity of case property is not disputed by the accused. Photographs of case property shown to the witness. Witness State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 6 of 20 correctly identifies the case property in the photographs and same are Ex. PW2/A and P1 to P4 colly. Copy of Register no. 19 serial no. 1259 taken on record on which entry was made regarding disposal of case property at point A. copy of the same is Ex. PW4/B ( OSR).
8. PW5 ASI Sumer Singh deposed that on 28.01.2016, he was posted at PS Kapashera as HC. On that day, after registration of FIR, investigation of the present case was marked to him. He alongwith Ct. Rajender reached at the spot. SI Yogender, SI Shashank Tripathi, HC Braj Lal, HC Satender, Ct. Pankaj alongwith accused Ganesh met him at the spot. IO SI Yogender produced one Esteem car no. DL 8CH 4987 and sealed case property duly sealed with the seal of YK. Thereafter, he prepared site plan at the instance of SI Shashank Tripathi Ex. PW2/D bearing my signature at point A. Accused Ganesh was arrested vide arrest memo Ex. PW2/F bearing my signature at point B. Accused Ganesh is present in the court today ( correct identified by witness). Personal search of the accused is Ex. PW2/G bearing my signature at point B. He recorded the statement of accused Ex. PW2/E bearing my signature at point B. Thereafter, they returned to PS. Case property was deposited at PS Malkhana and after medical examination of the accused he was produced before the court and sent to JC.
On 17.02.2016, samples were sent to Excise lab vide RC no. 130/21/16 through Ct. Yashwant and after collecting the result of excise I filed the chargesheet. Witness correctly identified the car in the photographs and the photographs are Ex. PW2/A colly.
State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 7 of 209. PW6 Ct. Yashwant deposed that on 17.02.2016, he was posted at PS Kapashera as Constable. On That day, as per directions of IO, he collected samples duly sealed with seal of 'YK', vide RC no. 30/21/16 for depositing in Excise Lab. After depositing the same, received copy of RC was deposited with MHC(R). Till the case property remained in his possession, no tampering was carried out with the same.
10. PW7 Ct. Rajender deposed that on 28.01.2016, he was posted at PS Kapashera as a constable. On that day, he joined investigation along with SI Yogender and reached at in front of BPCL Gate Dwarka Link Road, where SI Shashank met us. Accused Ganesh was also present there along with illicit liquor along with Esteem car no. DL 8CH 4987. SI Shashank produced accused and case property before SI Yogender. There were 23 cartons out of which there were 12 cartons of Impact Whiskey, all cartons containing 48 quarter bottles each, 4 cartons of Episode Whiskey all cartons containing 48 quarter bottles each, and 7 cartons of Asli Santra, (out of them, six cartons containing 50 quarter bottles and one carton containing 12 bottles). Thereafter, IO took 22 quarter bottles from each carton and one bottle from one carton as sample and separately sealed with the seal of YS and seized vide memo, Ex.PW2/B bearing my signatures at pt. B. Seal after use was handed over to me. Form M 29 was filled by the IO at the spot.
SI Yogender prepared tehrir on the basis of complaint of SI Shashank and handed over to him for registration of FIR. After registration of FIR, he State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 8 of 20 returned back at spot and handed over copy of FIR and original rukka to HC Sumer. HC Sumer prepared site plan at the instance of SI Shashank Ex.PW2/D. Car no. DL 8CH 4987 seized vide memo, Ex.PW2/C bearing my signatures at pt. B. Accused Ganesh was arrested vide memo Ex.PW2/F, bearing my signatures at pt. B. Accused Ganesh is present in court (correctly identified by witness). Personal search memo of accused is Ex.PW2/G, bearing my signatures at pt. B. IO recorded the disclosure statement of accused Ex.PW2/E, bearing my signatures at pt. B. IO prepared seal handing over memo Ex.PW7/A, bearing my signatures at pt. A. Thereafter, we returned to PS and case property was deposited in malkhana PS. After medical examination of the accused, he was sent to lockup. Photographs of car no. DL 8CH 4987 were shown to witness, who correctly identified the car in photographs. Same are Ex.PW4/A colly.
MHCM submitted that case property has already been disposed off vide order of this court. Panchnama of case property and photographs of car are already on record as Ex.P2 and Ex.P3 collectively and case property is Ex.P1 colly.
11. PW8 Sh. Yogender Kumar deposed that on 28.01.2016 he was posted as SI at PS Kapashera. On that day, on receipt of DD no. 6B, he along with Ct. Rajender went to spot i.e. Dwarka Link Road, in front of BPCL Gate, where he met SI Sashank Tripathi, Ct. Brij Lal, HC Satender and Ct. Pankaj, who produced 23 peties of illicit liquor, one Esteem Car, bearing no. DL 8CH 4987, accused Ganesh and complaint already Ex.PW2/B. State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 9 of 20 Thereafter, he checked the illicit liquor i.e. 12 peties of ADS Impact Grain Whiskey, four cartons were of Episode Whiskey and 7 cartons were of Asli Santra. Out of 7 cartons of Asli Santra, 6 cartons were containing 50 quarter bottles each and 7th carton was containing 12 bottles. In total, there were 23 cartons. Thereafter, he took one quarter bottle from each carton i.e. 23 sample bottles and tied mouth of the sample bottles with white cloth and sealed the same with seal of YK. Remaining quarter bottles and bottles were kept in respective cartons and sealed the same with the seal of YK. He gave mark to 23 cartons as serial no. 1 to 23 and to sample bottles as serial no. 1A to 23A. Thereafter, he seized illicit liquor vide seizure memo already Ex. PW2/A, bearing my signatures at pt.B. Seal was handed over to Ct. Rajender after use, vide memo already Ex.PW2/H, bearing my signatures at pt.B. He also prepared form M 29, Ex.PW8/A, bearing my signatures at pt.A. He also seized the car, vide memo, already Ex.PW2/C, bearing my signatures at pt.C. Thereafter, he prepared rukka. Same is now Ex.PW8/B,bearing my signatures at pt.A and he handed over to Ct. Rajender, who went to PS and got present FIR registered and thereafter, came to spot along with HC Sumer as further investigation was marked to HC Sumer. He handed over all documents of case and accused and case property to HC Sumer.
On next day, he took the seal from Ct. Rajender and taken over memo of seal was prepared. Same is already Ex.PW7/A. Accused was correctly identified by witness as present in the court. Panchnama of case property and photographs of car are on record and shown to witness, who correctly identified the same. Same are already Ex.P1.Photographs of case State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 10 of 20 property were shown to witness, who correctly identified the same. Case property is already Ex.P3 colly.
12. Accused admitted the genuineness of result of analysis of chemical examiner, already Ex.PW11/A and statement of Ct. Harender Ex.X under section 294 Cr.P.C.
13. No other witness was examined by the prosecution. Thereafter, prosecution evidence was closed. Statement of the accused was recorded under section 313 Cr.P.C. The accused stated that he has been falsely implicated in the present case and the case property has been falsely planted. Thereafter, final arguments were heard at length.
14. Ld APP for the state has contended that prosecution has been able to discharge the burden of proof cast upon it and the accused be convicted in the present case.
15. Per contra it has been contended by the counsel for the accused that there are material contradictions in the testimonies of the witnesses making them unreliable and the accused may be acquitted in the present case. The submissions of the ld counsel can be summarised as under:
(a) PW1 is the MHC(M) of this case and he had stated in his examination in chief that on 28.01.2016, S.I. Yogender Kumar deposited the case property i.e. illicit liquor and esteem car bearing No. DL8CH4987 in State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 11 of 20 Malakana but PW5 ASI Sumer Singh has stated in his cross examination (11th line) I deposited the case property in the Malakana.
(b) PW1. MHC(M) ASI Kartar Singh has stated in his cross examination (3rd line) it is correct that on 23 boxes the seals are in broken condition. It is correct that without touching the seal, the case property i.e. liquor bottles can be taken out easily from the all Pulanda/patties.
(c) PW2 SI Sushank Tripathi in his cross examination has stated (11 TH line) that I reach at Golak Dham Temple Bijwasan on my private car make wagonR. All other three police officials came at Golak Dham Temple Bijwasan in their respective four wheeler vehicles. We all reached at Dwarka Link Road Near BPCL Main Gate on our respective Four wheeler vehicles. But PW3 said in his cross examination (3 rd para 1st line) I reached the spot at about 11.00 P.m. by taking lift in the auto rickshaw and after (2 lines) this witness stated that we had assembled at Golak Dham Mandir Bijawasan and from there we had all gone to the spot on foot. But PW4 stated in his cross examination (3rd line) it took me around half an hour to reached the spot and I reached there by taking lift.
(d) PW2 SI Sushank Tripathi has stated in his cross examination (page 2, 5th line) we all left the spot after completion of investigation at about 5.00 am. And after (12 lines) this witness states, the constable who came to the spot along with I.O. brought the alleged car to the P.S. But PW5 SI Sumer State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 12 of 20 Singh stated in his cross examination(1st Line) I alongwith constable Rajendra had left the spot the after completion of investigation at 6.00 a.m in the alleged car alongwith case property.
(e) PW2, SI Sushank Tripathi in his cross examination (page 2, 6 th line) has stated, our statements recorded by the I.O at P.S. Kapashera at about 5.20 am. But PW4 Constable Pankaj in his cross examination at (page 2, 6th line) had stated, statements of all the police officials were recorded by the I.O. at the spot.
(f) PW2, SI Sushank Tripathi in his cross examination (page 2, 8 th line) has stated, we had gone from the spot to the P.S. in our respective four wheeler vehicles but PW3 SI Brij Lal has stated in his cross examination on (page 2, 1st Line), SI Sushank Tripathi, Constable Pankaj and myself had left the spot after completion of investigation at 5.00 am. And we all left the spot on foot But PW7 Constable Rajendra had stated in cross examination (page 2nd 1st line) excise officials along came to P.S. alongwith as at 4.00 am and thereafter accused was taken for his medical examination by me in QRT vehicle and reached the hospital at 4.30 am and thereafter again came to P.S. at about 5.30 am and thereafter we never visited the spot.
(g) PW2, SI Sushank Tripathi in his cross examination (page 2, 13th line) has stated , we had not taken out the illicit liquor from the car till I.O. had reached at the spot. But PW4 Constable Pankaj has stated in his cross State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 13 of 20 examination (page 2, 8th line) the carton boxes from the car was taken out at the spot by us at around 1.30 am in the morning.
(h) PW4 Constable Pankaj, in his cross examination on (page 2, 11 th line) has stated, I do not know how and what time the case property was taken to P.S. by the I.O. from the Spot as we (excise officials) had already left the spot But PW7 Constable Rajendra in his cross examination has stated (3rd Line) Esteem Car has taken to P.S. by the two excise officials who's name I do not remember. Case property was taken to P.S. in the QRT vehicle along with myself, S.I Yogender and one driver. But PW8 S.I Yogender had stated in his cross examination (2nd para, 1st line) I cannot tell as to how case property was shifted to P.S. as I had already left the spot.
(i) PW4 Constable Pankaj has stated in his cross examination (2 nd page last line) in permission regarding the arrest of accused to the relative of the accused was not given in my presence and no person i.e. relative of accused came to the spot till the time of remained there. But PW5 S.I Sumer Singh in his cross emanation has stated ( 3 rd last line) the wife of the accused came to the spot and her signature were taken on the arrest memo. I had not informed the wife of the accused but the same was done by (1 st line)(It is pertinent to mention here that arrest memo was prepared by PW5 ASI Sumer Singh). Moreover PW7 stated that he handed over the seal to the IO at the spot (at line 13) and PW8 stated that constable Rajendra handed over the seal to me on next day (at line 14).
State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 14 of 20(j) PW7 Constable Rajendra has stated in his cross examination (3 rd last line) I went to P.S. with rukka at about 12.15 am on my motor cycle and came back to the spot at about 1.00 am alone But PW8 S.I. Yogender Kumar had stated in his cross examination (1st para 6th line) Constable Rajendra took Rukka at 3.30 am. on my motor cycle and he came back at the spot at about 5.00 am. Along with second IO H.C Sumer on my motor cycle.
(k) The DD entries of their patrolling duty are not on record nor any public witnesses are join in the investigation inspite of their availability.
16. I have considered the submissions of both parties. I have also gone through the statements of witnesses and documents placed on record. The arguments advanced by the counsel for the accused have merit and cannot be simply brushed aside.
17. It has been held by Hon'ble High Court of Delhi in State Vs. Dharmender Singh Mehta and anr. 2012 V AD (Delhi) 108 that "it is now very well established that in all criminal cases, the prosecution has to establish the guilt of the accused beyond reasonable doubt through unimpeachable evidence". It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 15 of 20 file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also,1 it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
18. There are material contradictions in the testimony of witnesses as brought out in the arguments advanced by the defence. In order to sustain conviction under section 33 Delhi Excise Act, the prosecution is required to prove the following ingredients:
a). The accused was found in the possession of illicit liquor and
b). He/She was possessing the same without any license/permit.
19. The prosecution has failed to examine any public witnesses, therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witnesses that are examined by the prosecution in the present case are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous facts, other than truth, cannot be ruled out. The police witnesses cannot be straightway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 16 of 20 investigation and still no genuine and sincere efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in Pawan Kumar vs. Delhi Administration 1987 CC 585 Delhi High Court.
20. From the perusal of record it is clear that no serious attempt was made by the concerned police officials to get independent public persons to join the police proceedings of raid and of subsequent apprehension of the accused despite availability of such witnesses. In case titled as Anoop Joshi Vs. State 1992(2) C.C. Cases 314(HC), Hon'ble High Court of Delhi had observed as under: "18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
21. In case titled as Roop Chand Vs. The State of Haryana, 1999 (1) C.L.R. 69, the Hon'ble Punjab & Haryana High Court held as under: State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 17 of 20 "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. 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 the 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 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. In case titled as Sadhu Singh Vs. State of Punjab, 1997 (3) Crime 55 the Hon'ble Punjab & Haryana High Court had observed as under: "5. 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".
"6. In the present case, the State examined two witnesses namely, State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 18 of 20 Harbans Singh ASI who appeared as PW1 and Kartar Singh, PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
23. In circumstances like the present one, if members of the public had in reality refused to assist the members of the raiding party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of seeking their initial assistance for joining the raid or later at the time of apprehension of the accused since after the apprehension of the accused, there was no possibility of accused escaping his arrest or crime going undetected.
24. The present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by the police officials. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads 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 State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 19 of 20 station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the State vs. Om Prakash nature of their duty. This entry shall be made immediate 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 terms Police Station will include all places such as Police Lines and Post Posts where Register no. II is maintained."
25. It has been recorded in the testimony of PW1 MHCM that the case property was produced in open condition in such a way as anyone could tamper with the case property. This casts serious doubt on the case property itself. In his cross examination he deposed that without touching the seal the liquor bottles can be taken out easily from the pullandas.
26. In light of the aforesaid discussion, it can be safely concluded that prosecution has failed to prove its case on judicial file beyond reasonable doubt. Considering the meager evidence that has come on record, which are having several contradictions, it would be highly unsafe to record a finding of guilt against the accused. In view of the foregoing reasons, I hold that the Prosecution has failed to prove the charge against the accused beyond reasonable doubt. The benefit of doubt goes to accused as per principles of criminal justice. Accused stands acquitted for the offence punishable u/s 33 of Delhi Excise Act in present case.
Announced in open court
on 06.06.2019 (Himanshu Raman Singh)
Metropolitan Magistrate04,
Dwarka, Delhi/ 06.06.2019
State Vs. Ganesh, FIR no. 25/16, PS : Kapashera, Page 20 of 20