Delhi District Court
State vs Mangal on 9 February, 2009
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IN THE COURT OF SH. SATISH KUMAR ARORA: MM KKD COURTS
DELHI
FIR No. 318/06
U/s 61 Excise Act
P.S. Kalyan Puri
State Vs Mangal
JUDGMENT
a.Sl. No of the case : 02402R0491482006 b. Date of institution : 07.8.2006 c. Date of commission of offence : 12.6.06 d.Name of the complainant : State e.Name of the accused & his parentage and address : Mangal s/o Mahadev r/o Jhuggi no 17/311, Kalyan Puri, Delhi f. Offence complained of 61 Excise Act g. Plea of the accused : pleaded not guilty h. Order Reserved : 9.2.09 i. Final order : Acquitted.
j. Date of such order : 9.2.09 Brief reasons for the decision of the case.
1. Accused Mangal is facing trial having been charged for the Page no. of 8 alleged commission of offence punishable u/s 61 Excise Act . Brief facts leading to the initiation of the present criminal proceedings against the accused may be summed up as under : On 12.6.2006 at about 6.50 pm when Ct. Sukhbir Singh with Ct. Anil Kumar were patrolling in area of PS Kalyan Puri, Delhi and reached at opposite DTC bus depot, accused was found coming from the side of Gazipur Sabji Mandi, having a plastic cane on his right shoulders. Finding him under suspicious circumstances, accused was apprehended and searched. Upon search, cane in possession of accused was found to contain liquor without any licence or permit and thereby he was found to have committed an offence punishable under section 61 Excise Act. Thereafter, Ct. Sukhbir Singh called up the PS through phone and HC Shailender reached at the spot. Liquor in the cane was measured with the help of a bucket and 750 ml bottle. Upon measurement, quantity of the liquor cane came to be 8.25 litres. After ascertaining the quantity, one quarter bottle liquor was separated as sample. The sample bottle and the cane was sealed with the seal of SS and form M29 was filled up for the purpose of chemical examination. Thereafter, IO HC Shailender recorded the statement of Ct. Sukhbir and got the FIR registered through him. Upon completion of investigation, challan was filed in the court and cognizance of the offence u/s 61 of Excise Act was taken against the accused.
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2. On the appearance of accused, the copy of documents /challan were supplied, and after hearing the arguments on charge, charge for the alleged commission of the offence u/s 61 Excise Act was framed to which accused pleaded not guilty and claimed trial. Thereafter, case was fixed for PE.
3. In support of its case, prosecution has examined five witness. PW1 Ct. Anil Kumar, who was accompanying the complainant Ct. Sukhbir, is one of the recovery witnesses. While deposing on the lines of prosecution story, he deposed that he had brought the bottle and the bucket upon instruction of the IO for measuring and pouring the contents of the cane. He further deposed that IO HC Shailender while apprehending the accused and seizing the case property, requested 45 passersby to join the proceedings but none agreed. In his cross examination, he deposed as correct that the lid of the cane which was sealed , can be opened without opening the seal and the contents thereof can be changed without removing or tampering the same.
PW 2 Ct. Sukhbir is also a recovery witness. While deposing on the lines of prosecution story, he proved his statement given to IO as Ex.PW1/A. He also deposed that the site plan was prepared at the instance of Ct. Anil and the accused was interrogated, arrested and personally searched vide arrest memo and personal search memo Page no. of 8 Ex.PW1/C and B respectively in his presence. In his cross examination, he also deposed as correct that the lid of the cane which was sealed , can be opened without opening the seal and the contents thereof can be changed without removing or tampering the same.
PW 3 HC Veer Sain , DO, is a formal witness who recorded the FIR and proved the copy of FIR as Ex.PW3/A with his signature at point A. PW 4 HC Shailender Singh is the IO of the case. He reached at the spot vide DD no. 21A, where Ct. Sukhbir and Ct. Anil handed over to him the accused along with case property. He measured the quantity of the illicit liquor, poured the contents in one plastic bucket and took the sample in one quarter bottle. Thereafter, he seized and sealed the same, got the case registered, arrested the accused and sent the sample for chemical examination.
PW 5 Ct. Ved Pal is a formal witness who deposited the sample in Excise Laboratory.
4. Statement of the accused was recorded U/s 281 Cr PC wherein he denied the allegations of the prosecution and stated that he was innocent and has been falsely implicated in this case. However, the accused preferred not to lead any evidence in his defence.
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5. I have heard the Ld.APP for the state and Ld. Counsel for the accused and have carefully perused the judicial file.
6. During the investigation of the case no public witnesses were joined nor there seems to be any sincere efforts having been made in this regard, when it was possible to do so as accused has been apprehended near a DTC bus depot at about 6.50 pm where the presence of public persons can not be ruled out. Reference can be made to State of Punjab Vs. Gurmel Singh 1991 (2) Recent Criminal Reporters 361 Hon'ble Court held that: " Where there were 20 shops nearby and the investigating officer had ample opportunity to join independent witness statement of official witnesses would not be sufficient to convict the accused. Contention of the prosecution that the police officials had no ill will to involve the accused in false case was repelled."
No doubt as to the non joining of independent witnesses, the law is well settled on this point. Reference can be made to the judgment of Hon'ble Supreme Court in Tahir Vs. State of Delhi, AIR 1996 SC 3079 wherein it was observed "no infirmity attaches to the testimony of the police officials, merely because they belong to police force and there is no rule of law or evidence which lays down that conviction can not be recorded on the evidence of the police officials if found reliable unless Page no. of 8 corroborated by some independent evidence." It was further observed "The rule of prudence, however, only requires a more careful scrutiny of their evidence since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witnesses of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
However, as already discussed, there was ample opportunity for the IO to join independent witnesses.
7. It is on the basis of the aforesaid that the prosecution evidence in the present case is to be weighed. From the perusal of the aforesaid prosecution evidence, I am of the opinion that the testimony of police officials is neither convincing nor reliable so as to form the basis of the conviction of the accused.
8. First and foremost lacuna is the manner in which the sample has been sealed. Both PW1 and PW2 in their cross examination deposed as correct that the contents of the cane can be changed without removing or tampering the seal. It is the bounden duty of the police that when they are seizing the case property, it should be done in such a Page no. of 8 manner that the case property or its contents can not be interfered with without removing or tampering with the seal. In the present case, the seal has been put in a such a manner that the contents can be changed without affecting the seal in any manner whatsoever. This lacuna coupled with the fact that no independent witness has been joined when there was every occasion for the IO to join them seriously dents the prosecution version.
Further, the testimony of material witnesses is silent as to whether any seal handing over memo was prepared which constitutes a material link evidence and when there is a specific deposition that sample was taken in a quarter bottle and the same along with plastic cane was sealed with seal of SS and seal after used was given to PW.
Further, the perusal of the seizure memo of illicit liquor Ex PW1/B shows that FIR number is mentioned therein. There is not a single word in the testimony of any of the witnesses as to when and at what stage FIR number was inserted in Ex PW1/B. Reference can be made to Mohd Hasim V/s State 1999 VI AD ( Delhi ) 569 ( Hon'ble Mr Justice M S A Siddiqui) wherein it was observed that documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and was held that in both case, Page no. of 8 prosecution case would collapse.
Apart from this, the presence of PW 1 and PW2 at the spot is not proved. If they had departed from PS for patrolling duty the entry to this effect must exist in the Roznamcha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamcha had been produced it would have not shown their departure as all.
9. In view of the aforesaid, I hold that prosecution has failed to prove its case beyond reasonable doubt against the accused and he is given the benefit of doubt and is acquitted for the offence punishable U/s 61 of Punjab Excise Act. His B/B/S/B are discharged. File be consigned to Record Room.
Announced in the open court on 09.2.09 (SATISH KUMAR ARORA) METROPOLITAN MAGISTRATE, KARKARDOOMACOURTS, DELHI Page no. of 8 IN THE COURT OF SH. RAVINDER SINGH MM KKD COURTS DELHI ORDER ON THE POINT OF SENTENCE Present: APP for State.
Convict Convict person states that he is the sole bread earner of the family and is facing trial in this case for the last three months and he belongs to poor strata of the society and he further submitted that he is in J/C in this case since 21.8.08 till date, so he be released for the period already undergone in J/C.
2. On the contrary, Ld. APP of this Court has submitted that no leniency may be shown to the convict and prayed for maximum punishment and prayed no leniency may be shown to the convict.
3. After hearing the arguments and on perusal of the material on the record, it is not in dispute that accused is in J/C since 21.08.2008 and he has already undergone almost 3 months in JC. Taking note of the same, I am of the considered opinion that the interest of justice would be met if the convict is given benefit of of section 428 Cr.P.C.. Accordingly, he is sentenced for the period which he has already undergone in jail during Page no. of 8 trial and with fine of Rs.500/, in default, accused to undergo SI for one month. Fine paid.
4. Accused be released from Judicial custody if not required in any other case Announced in the open court on 9.2.09 (SATISH KUMAR ARORA) METROPOLITAN MEGISTRATE, KARKARDOOMACOURTS, DELHI Page no. of 8 FIR No. 304/04 U/s 61 Excise Act P.S. Kalyan Puri 8.12.08 Pr. APP for the State.
Accused on bail with ld. counsel.
Matter was listed for S.A. Accused submitted that he wants to plead guilty. The matter is passed over for the post lunch session so as to give time and opportunity to the accused to consider upon his decision of pleading guilty for the offence with which he is charged. Put up at 2 pm. MM:KKD/8.12.08 At 2 pm. Pr. APP for the State.
Accused on bail with Ld. counsel.
Accused is enquired as to whether he still wants to plead guilty, he answers in affirmative. After being satisfied that accused is pleading guilty voluntarily, his statement as to plea of guilt be recorded separately.
In view of plea of guilt of the accused, vide separate judgment of the even date, he has been convict for the offence punishable u/s 61 Excise Act. Copy of the judgment be supplied to the accused free of cost.
Page no. of 8 Put up on 17.12.08 for arguments on order on sentence.
MM:KKD/8.12.08
Page no. of 8
FIR No. 474/04
U/s 61 Excise Act
P.S. Kalyan Puri
20.11.08
Pr. APP for the State.
Accused on bail with ld. counsel.
Matter was listed for PE. PW 3 HC Jagbir Sigh examined and discharged. At this stage, accused submitted that he wants to plead guilty. The matter is passed over for the post lunch session so as to give time and opportunity to the accused to consider upon his decision of pleading guilty for the offence with which he is charged. Put up at 2 pm. MM:KKD/20.11.08 At 2 pm. Pr. APP for the State.
Accused on bail with Ld. counsel.
Accused is enquired as to whether he still wants to plead guilty, he answers in affirmative. After being satisfied that accused is pleading guilty voluntarily, his statement as to plea of guilt be recorded separately.
In view of plea of guilt of the accused, vide separate judgment of the even date, he has been convict for the offence punishable u/s 61 Page no. of 8 Excise Act. Copy of the judgment be supplied to the accused free of cost.
Put up on 20.12.08 for arguments on order on sentence.
MM:KKD/20.11.08
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State vs. Mohd.
Yousuf
Us 66/192, 7/177, M V.
ACt
21.11.08
Pr. APP for the State.
Accused on bail.
Matter was listed for final arguments. At this stage, accused submitted that he wants to plead guilty. The matter is passed over for the post lunch session so as to give time and opportunity to the accused to consider upon his decision of pleading guilty for the offence with which he is charged. Put up at 2 pm. MM:KKD/21.11.08 At 2 pm. Pr. APP for the State.
Accused on bail.
Accused is enquired as to whether he still wants to plead guilty, he answers in affirmative. After being satisfied that accused is pleading guilty voluntarily, his statement as to plea of guilt be recorded separately.
In view of plea of guilt of the accused, vide separate judgment of the even date, he has been convict for the offence punishable u/s 66(1)/ Page no. of 8 192, 7/177 M V Act. Copy of the judgment be supplied to the accused free of cost.
Put up on 29.1.09 for arguments on order on sentence.
MM:KKD/21.11.08
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FIR No. 363/04
U/s 61 Excise Act
P.S. Kalyan Puri
8.12.08
Pr. APP for the State.
Accused on bail with ld. counsel.
Matter was listed for PE. PW 2 ASI Srinivas examined and discharged. At this stage, accused submitted that he wants to plead guilty. The matter is passed over for the post lunch session so as to give time and opportunity to the accused to consider upon his decision of pleading guilty for the offence with which he is charged. Put up at 2 pm. MM:KKD/8.12.08 At 2 pm. Pr. APP for the State.
Accused on bail with Ld. counsel.
Accused is enquired as to whether he still wants to plead guilty, he answers in affirmative. After being satisfied that accused is pleading guilty voluntarily, his statement as to plea of guilt be recorded separately.
In view of plea of guilt of the accused, vide separate judgment of the even date, he has been convict for the offence punishable u/s 61 Page no. of 8 Excise Act. Copy of the judgment be supplied to the accused free of cost.
Put up on 9.1.09 for arguments on order on sentence.
MM:KKD/8.12.08
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State vs. Chander Bhan.
Vehicle no. DL 1PA 5056.
8.12.08
Pr. APP for the State.
Accused on bail.
Matter was listed for further final arguments. At this stage, accused submitted that he wants to plead guilty. The matter is passed over for the post lunch session so as to give time and opportunity to the accused to consider upon his decision of pleading guilty for the offence with which he is charged. Put up at 2 pm. MM:KKD/8.12.08 At 2 pm. Pr. APP for the State.
Accused on bail.
Accused is enquired as to whether he still wants to plead guilty, he answers in affirmative. After being satisfied that accused is pleading guilty voluntarily, his statement as to plea of guilt be recorded separately.
In view of plea of guilt of the accused, vide separate judgment of the even date, he has been convict for the offence punishable u/s 66(1)/ 192A, 138(3)/177, M.V.Act, R.7 DMVR r/w s.177 M.V.Act. Copy of the Page no. of 8 judgment be supplied to the accused free of cost.
MM:KKD/8.12.08