Delhi District Court
In Re: State vs Munna Kumar on 13 July, 2012
IN THE COURT GAURAV RAO: METROPOLITAN MAGISTRATE:
SOUTH DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS MUNNA KUMAR
F.I.R. No: 288/03
U/s 61/1/14 Excise Act
P.S. Defence Colony
Date of Institution of Case : 02.09.2003
Date of Judgment Reserved for : 13.07.2012
Date of Judgment : 13.07.2012
JUDGMENT:
(a) The serial no. of the case : 575/2/03
(b) The date of commission of offence : 02.07.2003
(c) The name of complainant : SI Nafe Singh
(d) The name, parentage, of accused : Munna Kumar s/o Sh. Kishan
Bahadur, R/o C748, Shankar
Camp, Rangpuri Pahari, Vasant
Kunj, New Delhi.
Present Address : As above
FIR No.288/03 State Vs. Munna Kumar 1/12
(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 : 13.07.2012
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 02.07.2003 at about 04.30 p.m. at Near Bus stand, Sirifort Road, Opp. Kamla Nehru College, New Delhi within the jurisdiction of PS Defence Colony accused Munna Kumar was found in possession of 30 bottles of illicit/country liquor (each bottle containing 750 ml) without any permit or license and in contravention of notification issued by Delhi Administration and thus thereby the accused committed offence punishable u/s 61 of Punjab Excise Act 1914.
2. Charge sheet filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide order dated 24.02.2004, charge u/s 61/1/14 Punjab Excise Act was framed against accused to which he pleaded not guilty and claimed trial.
FIR No.288/03 State Vs. Munna Kumar 2/12
3. In order to prove the charges against the accused, prosecution examined five witnesses, where after the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Cosnt. Gurmeet singh deposed that on 02.07.2003 he was on duty at Ansal Plaza and SI Nafe Singh met him and told about a secret information. He deposed that Cont. Namdev was also with him at that time. He deposed that at about 04.30 p.m. he along with SI Nafe Singh and Const. Namdev reached at Srifort Road, OPP. K.N. College. He deposed that in the meantime HC Rajender of EIB also came there. He deposed that at about 04.30 p.m. the accused came from the side of KN College carrying a plastic katta on his shoulder. He deposed that accused was on foot. He deposed that he was stopped and on checking of his plastic katta 30 bottles of Mastana Desi Sharab were found in it. He deposed that accused was taken to PS with the recovered bottles. He deposed that IO prepared documents at the PS and he took the accused to hospital for his medical. He deposed that arrest memo of accused was prepared. Thereafter Ld. APP crossexamined the witness after declaring FIR No.288/03 State Vs. Munna Kumar 3/12 him hostile.
5. During his crossexamination conducted by Ld. APP he denied the suggestion that the two sample bottles were sealed by the IO SI Nafe Singh at the spot prior to taking the accused to PS. He denied the suggestion that the remaining other 28 recovered bottles were sealed in the plastic bag at the spot. He denied the suggestion that the documents i.e. seizer memo, seizer memo of sample bottles and rukka were prepared by SI Nafe Singh at the spot. He admitted that the seal belonged to SI Nafe Singh. He denied the suggestion that HC Om Parkash came at the spot and recorded his statement. He denied the suggestion that he has not deposed the true facts of the proceedings of the case in order to create a doubt in prosecution case so as to save the accused.
This witness has correctly identified the case property Ex. P1/1 to 28 and P2.
6. PW2 HC Rajender Malik deposed that on 02.07.2003 he was posted in EIB, Vikas Bhawan, New Delhi and on that day at about 04.15 p.m. he reached at Sirifort Road Opp. Kamla Nehru College, New Delhi there SI Nafe Singh, Const. Namdev and Const. Gurmeet Singh me him and SI FIR No.288/03 State Vs. Munna Kumar 4/12 Nafe Singh joined him in the raiding party. He deposed that he was also having the information about a person coming with liquor. He deposed that at about 04.30 p.m, the accused came on foot from the side of Srifort bus stand and he was carrying a plastic katta on his shoulder. He deposed that accused was stopped and on checking the katta was found containing 30 bottles of country made liquor with label of mastana Spl. Spiced Country Sprit. He deposed that two bottles were sealed separately for sample and were seized vide memo Ex. PW2/A after sealing the bottles with the seal of NS and seal was given to him after sealing the sample bottles and sealing the remaining 28 bottles, in the plastic katta. He deposed that seizure memo of 28 bottles is Ex. PW2/B. He deposed that the plastic katta was also sealed with the seal of NS. He deposed that SI Nafe Singh prepared rukka and sent Const. Namdev to PS for FIR and after FIR Const Namdev returned at spot with HC OM Parkash and HC Om Parkash conducted further investigation of the case. He deposed that accused was arrested vide documents Ex. PW2/C. This witness correctly identified the case property Ex. P1/1 to 28 and Ex.P2.
7. PW3 HC Janardhan deposed that on 02.07.2003 at about 06.50 FIR No.288/03 State Vs. Munna Kumar 5/12 p.m. while he was posted as DO at PS Defence Colony he recorded FIR No. 288/03 i.e. Ex. PW3/A and his endorsement on the rukka is Ex. PW3/B.
8. PW4 Const. Namdev deposed that on 02.07.2003 he was posted as constable in PS Defence Colony and on that day he along with constable Gurmeet and ASI Nafe Singh was on patrolling duty near Ansal Plaza. He deposed that when they were present at the spot, one secret informer met with SI Nafe Singh and informed that one person is carrying illicit liquor, if raid is conducted he can be apprehended. He deposed that on this IO requested some persons to join investigation but none of them agreed and left the place without disclosing their names and addresses. He deposed that without wasting time he prepared raiding party, including him, secret informer and constable Gurmeet. He deposed that thereafter, they reached the spot i.e. in front of Kamla Nehru College, Sirifort Bus Stand. He deposed that at the spot they met with HC Rajinder Malik for EIB, who was having same information. He further deposed on the same lines as was deposed by PW2
9. PW5 SI Nafe Singh deposed on the same lines as deposed by PW2 FIR No.288/03 State Vs. Munna Kumar 6/12 and 4.
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 was planted upon the accused. It was also argued that a careful scrutiny of the testimony of the prosecution witnesses would reveal that they contradicted each other on material particulars. 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. I have heard the rival submissions. No doubt that Police officials/official witnesses are as good as any other witness however, when FIR No.288/03 State Vs. Munna Kumar 7/12 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 '' '' it Roop Chand V/s State of Haryana was observed as under :
''When some witness from the public was available 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''.
14. 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''.
FIR No.288/03 State Vs. Munna Kumar 8/12
15. Further reliance can be placed upon "Hem Raj v. State of Haryana AIR 2005 SC 2110, Sahib Singh v. State of Punjab AIR 1997 SC 2417, D.V. Shanmugham v. State of A.P., AIR 1997 SC 2583 and Pawan Kumar v. The Delhi Administration, 1989 Cr.L.J 127 Delhi wherein it has been observed that in the absence of public witness/nonjoining of public/independent witnesses the prosecution story has to be approached with caution more so when the investigation officer failed to take action against those who refused to join the alleged raid.
16. As is evident from the deposition of the prosecution witnesses and the site plan the place of alleged recovery was a very busy place/ought to be a very busy place as it was at the bus stand on Srifort Road just in front of Kamla Nehru College and admittedly public persons were also present.
However, none from the public could be joined by the police official during the alleged raid and seizure. 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.
FIR No.288/03 State Vs. Munna Kumar 9/12
17. 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. Till the time case property is not dispatched to the FSL the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of the seal, contraband and the samples being tempered with cannot be ruled out (Tara Singh v. State of Punjab (P&H) 2004 (1) R.C.R. (Criminal) 623).
18. Apart from the non joining of independent witness the prosecution story suffers from various loop holes. Admittedly, no signatures of the person depositing the case property in the Malkhanna were taken in register no. 19 by MHC (M) and neither the signatures of the person who took the sample to FSL were taken. 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 REPORTS 95.
FIR No.288/03 State Vs. Munna Kumar 10/12
19. 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 '' .
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. One of the alleged recovery witness i.e. Cont. Gurmeet Singh, who was examined as PW1 did not support the prosecution story on material counts. He gave a contrary version of the incident as against what was deposed by other alleged recovery witnesses. Much against and contrary to the prosecution story he denied that the recovered liquor was seized at the spot or that the material prosecution documents e.g. Seizue memo, rukka etc were prepared at the spot by the IO. His testimony and cross examination by Ld. APP created serious doubts upon the prosecution story and rendered it unreliable.
FIR No.288/03 State Vs. Munna Kumar 11/12
22. 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.
23. 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 is accordingly entitled for acquittal.
24. I order accordingly.
Announced in the open (Gaurav Rao) Court on 13.07.2012 MM (SD)/Delhi. FIR No.288/03 State Vs. Munna Kumar 12/12 F.I.R. No: 288/03 U/s 61/1/14 Excise Act P.S. Defence Colony 13.07.2012 Pr: Ld. APP for state.
Accused is present on bail along with his counsel. No PW is present. I have gone through my last orders. In terms of my last orders and as the matter is 9 years old and the matters cannot be allowed to linger on till eternity, prosecution evidence stands closed.
Statement u/s 313 Cr.P.C. of the accused has been recorded. Accused has submitted that he does not lead any evidence in his defence.
Ld. Defence Counsel has submitted that he is ready with the final arguments. Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao)
MM (SD)/Delhi/13.07.2012
FIR No.288/03 State Vs. Munna Kumar 13/12
FIR No.288/03 State Vs. Munna Kumar 14/12