Delhi District Court
State vs . Basanti on 17 September, 2015
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI.
FIR No.75/2011
PS - Nangloi
State Vs. Basanti
Unique Case ID No.02401R0422862011
JUDGMENT
(a) Sr. No. of the case 19/2/11
(b) Date of offences 19.03.2011
(c) Complainant HC Sudesh Kumar, No.478W, PS Nangloi, New Delhi.
(d) Accused person(s) Basanti W/o Sh. Tara Chand R/o A - 225, Amar Colony,
Rishi nagar, Nangloi, New Delhi.
(e) Offence(s) Under Section 33 of Delhi Excise Act, 2009.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 06.09.2011
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 17.09.2015
The brief facts of the case are that :
1. The accused has been charge sheeted for committing offence punishable under Section 33 of Delhi Excise Act, 2009. The allegations against the accused are that on 19.03.2011 at about 06:35 pm at Main Rohtak Road, Near Rajdhani Park Bus FIR No.75/2011 Page No.1 of 13 Stand, Nangloi, Delhi, accused was found in possession of 92 quarter bottles of illicit liquor without any license, permit or pass and in contravention of notification issued by Delhi Government. According to prosecution, accused thereby committed offence punishable under Section 33 of Delhi Excise Act, 2009.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed against the accused for offence punishable under Section 33 of Delhi Excise Act, 2009 vide order dated 08.08.2012 to which she pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE Main Witnesses(s)
3. The prosecution examined five witnesses to prove its case. PW3 HC Raju Palve and PW4 HC Sudesh Kumar in gist have deposed that on 19.03.2011, they were on patrolling duty in Beat No.5 and at about 06:35 pm, when they reached near 40 Feet Road, Radhani Park, Rohatak Road, they noticed one lady standing near Radhani Park Bus Stand having two bags in her hand. On seeing them in police uniform, she crossed the road in hurried manner and went towards Amar Colony. On suspicion, they chased her. PW4 stopped her at a distance and made inquiry from her regarding bags which she was carrying, but, she did not give any satisfactory answer. FIR No.75/2011 Page No.2 of 13 On suspicion PW4 checked both the bags and found that she was carrying liquor bottles. PW4 immediately gave information in PS. IO requested 2 - 3 passersby after disclosing the facts of the case to join investigation, but, none joined the investigation and left the spot with disclosing their names and addresses. In the meantime, ASI Ashok Kumar with one lady Ct. Nitesh came at the spot. They disclosed whole facts to IO ASI Ashok Kumar and handed over custody of accused with both bags. PW4 immediately gave information in PS. IO ASI Ashok Kumar also requested 2 - 3 passersby after disclosing the facts of the case for joining of investigation, but, none joined the investigation and left the spot with disclosing their names and addresses. Thereafter, as they were left with no other option, IO ASI Ashok Kumar checked one by one both bags and found that first bag was containing 44 quarter bottles containing country made liquor having label of 'Santra Masaledar Desi Sharab' for sale in Haryana only and was numbered as Sr. No.1 and from this bag, one bottle was kept aside as a sample and sample was number as Sr. No.1A and remaining liquor was seized in the same bag with seal of 'SK'. Thereafter, 2nd bag was checked and it was found containing 48 quarter bottles having label of 'Falcon Orange' for sale in Haryana only which was numbered as Sr. No.2. On bottle was kept aside from this bag as a sample and was numbered as 2A. Remaining bottles were again put in the same bag and was sealed. Samples were sealed separately with seal of 'SK'. Both FIR No.75/2011 Page No.3 of 13 bags were kept in one big plastic sack and was sealed with the seal of 'SK'. Form No. 29 was filled. Seizure memo Ex.PW3/A was prepared. IO ASI Ashok Kumar recorded statement of PW4 vide Ex.PW4/A. IO ASI Ashok Kumar prepared Rukka on statement of PW4 and handed over to PW3 for registration of FIR. After use, seal was handed over to PW4. PW3 immediately went to PS with Rukka and got the case registered. PW3 handed over the copy of FIR and original Rukka to IO ASI Ashok Kumar after returning at the spot. IO ASI Ashok Kumar prepared site plan Ex.PW4/B at instance of PW3. After interrogation, IO arrested accused vide memo Ex.PW1/A. Case property was deposited in malkhana. He correctly identified accused in the Court. PW3 and PW4 were examined, crossexamined and were discharged.
4. PW5 SI Ashok Kumar in gist has deposed that on 19.03.2011, D.D.No. 38A was assigned to him for necessary action. He alongwith Lady Ct. Nitesh immediately went to the place of incident at near Rajdhani Park Bus Stand, Rohtak Road, Delhi where he met with HC Sudesh and Ct. Raju Palve. HC Sudesh handed over to him custody of accused Basanti as well as possession of two bags. He requested 2 - 3 passersby to join investigation, but, none of them agreed and they all left the spot without disclosing their names and addresses. As they were left with no other option, he checked plastic bags one by one and found that first bag was FIR No.75/2011 Page No.4 of 13 containing 44 quarter bottles country made liquor having label of 'Santra Masaledar Desi Sharab' for sale in Haryana only. One quarter bottle was kept aside as a sample. The said bag was numbered as Sr. No.1 and sample was number as Sr.No.1A and remaining liquor was seized in same bag. Thereafter, 2nd bag was checked and it was found containing 48 quarter bottles filled with liquor having label of 'Falcon Orange' for sale in Haryana only. The said bag was numbered as Sr.No.2. One quarter bottle was kept aside as sample and was numbered as Sr.No.2A. Remaining quarter bottles were again put in same bag and seized. Samples were sealed separately with the seal of 'SK'. Both bags were kept in one plastic sack and said plastic sack was also sealed with seal of 'SK'. Form No.29 Ex.PW5/A was filled at the spot by him. After use, he handed over the seal to HC Sudesh. He prepared seizure memo Ex.PW3/A of recovered liquor. He recorded statement of HC Sudesh vide Ex.PW4/A. He made endorsement Ex.PW5/B on the same and handed over to Ct. Raju Palve. He immediately went to PS, however, they all remained at the spot with accused and case property. After sometime, Ct. Raju Palve came back at the spot and handed over original Rukka and copy of FIR to him. He mentioned FIR number on seizure memo and on Form No.29 prepared by him prior to registration of the case. He prepared site plan Ex.PW4/B at instance of HC Sudesh. After interrogation, he arrested accused vide arrest memo Ex.PW1/A, got conducted personal search of accused from Lady FIR No.75/2011 Page No.5 of 13 Ct. Nitesh vide personal search memo Ex.PW1/B and also recorded statements of witnesses. They came back to PS. Case property was deposited in malkhana. Medical examination of accused was got conducted at SGM Hospital. Next day, accused was produced before the Court. He also sent samples of case property to Excise Lab for examination. He collected the excise report Ex.PW5/C. He correctly identified accused and case property Ex.P1 (Collectively). After completion of investigation, charge sheet was prepared and was filed before Court with all the material collected during investigation. PW5 was examined, crossexamined and was discharged. Formal Witness(es)
5. PW1 W.Ct. Nitesh has deposed that on 19.03.2011, she was posted at PS Nangloi and on that day, she accompanied SI Ashok in investigation of present case and went to the spot at Rajdhani Park Bus Stand, Main Rohtak Road where they met with HC Sudesh and Ct. Raju. HC Sudesh handed over accused Basanti to SI Ashok alongwith case property and other documents. SI Ashok arrested accused Basanti vide arrest memo Ex.PW1/A and she conducted personal search of accused vide memo Ex.PW1/B and found cash Rs.40/. PW1 was examined, not cross examined by accused despite opportunity given and was discharged.
6. PW2 ASI Jagdish has proved and exhibited formal FIR Ex.PW1/B and endorsement on Rukka Ex.PW1/B. PW2 was examined, not crossexamined by FIR No.75/2011 Page No.6 of 13 accused despite opportunity given and was discharged.
7. On 01.09.2015, further prosecution evidence was closed. STATEMENT OF ACCUSED
8. After closure of prosecution evidence, statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating evidence was put to her. Accused person denied all the allegations and stated that she is innocent and has been falsely implicated in this case. Accused opted not to lead evidence in her defence.
9. Final arguments from both sides heard. Records perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
10. In matter of "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55, Hon'ble Punjab & Haryana High Court, it has been held that : "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."
11. As per chapter 22 rule 49 of the Punjab Police Rules (also applicable to Delhi Police) which is reproduced herein for ready reference : Chapter 22 Rule 49 of Punjab Police Rules, 1934 : "22.49 Matters to be entered in Register No. II The following matters shall, amongst FIR No.75/2011 Page No.7 of 13 others, be entered :
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately 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 term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
12. In the present case, the above said provision has not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police officials have not been proved on record.
13. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State", 1987 (2) Crimes 29, Hon'ble High Court of Delhi, it has been held that : "if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
14. Public witness has admittedly not being joined in investigation though available as the spot of recovery is a busy place and recovery is stated to have been affected at about 06:35 pm. PW5 has also not written down the names of persons who were present at the spot and were requested by him to join the investigation. No written notice was admittedly served upon them. The testimony of official witnesses, therefore, does not find any corroboration from any independent source. In view of FIR No.75/2011 Page No.8 of 13 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.
In matter of "Anoop Joshi Vs. State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi held that : "It is repeatedly laid down by this Court that 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 evident 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''.
In matter of "Roop Chand Vs. The State of Haryana", 1999 (1) C.L.R 69, Hon'ble Punjab & Haryana High Court held that : "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 he witnesses from the public had refused to 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''.
FIR No.75/2011 Page No.9 of 13
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."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : FIR No.75/2011 Page No.10 of 13 "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) 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 FIR No.75/2011 Page No.11 of 13 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.
15. The seal after use was not handed over to any independent person 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, abovesaid facts also erode credibility of prosecution evidence.
16. Accordingly, in view of the aforesaid facts, it has to be concluded that the prosecution has failed to establish beyond reasonable doubt that the alleged recovery was infact made from accused.
17. Section 52 of Delhi Excise Act, 2009 provides that presumption is raised with respect to commission of offence until the contrary is proved that the accused has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
FIR No.75/2011 Page No.12 of 13
18. Hence, before the presumption is raised the prosecution has to establish that illicit liquor was recovered from the accused. However, in this case, prosecution has failed to prove beyond reasonable doubt that illicit liquor was recovered from the possession of accused. Accordingly, presumption of Section 52 of the act ibid cannot be invoked.
19. 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 shadow of reasonable doubt. Accused Basanti is accordingly acquitted for offence punishable under Section 33 of Delhi Excise Act, 2009. Case property be confiscated to the State (if not already confiscated) and be destroyed after expiry of period of appeal (if it is still not destroyed).
20. File be consigned to Record Room after due compliance.
Announced in the open Court on September 17, 2015.
(HARVINDER SINGH) M.M.03/THC (West), Delhi/17.09.2015 FIR No.75/2011 Page No.13 of 13