Delhi District Court
State vs . Rajni on 14 March, 2013
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Rajni
FIR NO: 113/10
P. S Ambedkar Nagar
U/s 61 Punjab Excise Act
Unique ID No. 02406R0353602010
JUDGMENT
Sl. No. of the case and : 208/3 (8.11.2010) Date of its institution : 24.9.2010 Name of the complainant : Ct. Harkesh Date of Commission of offence : 9.5.2010 Name of the accused : Smt. Rajni Offence complained of : 61 Punjab Excise Act Plea of accused : Not Guilty Case reserved for orders : 14.3.2013 Final Order : Acquittal Date of orders : 14.3.2013 BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Rajni upon a charge sheet filed by the State Vs. Rajni 1/8 FIR no.113/10 police station Ambedkar Nagar under section 61/1/14 Punjab Excise Act.
2. The allegations upon the accused is that on 9.5.2010 at around 9.45 am at near Toilet Subhash Camp, Dakshin Puri, New Delhi, accused was found in possession of 90 quarter bottles of illicit liquor. This country made liquor was being carried by accused without any permit or license and in contravention of Notification of Govt. of NCT Delhi.
3. After completing the formalities, the investigation was carried out by PS Ambedkar Nagar and a charge sheet was filed against the accused. The charge was framed against the accused u/ s 61 Punjab Excise Act, to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined three witnesses.
5. PW 1 Ct. Harkesh who deposed that on 9.05.2010, he was posted as constable at PS Dr. Ambedkar Nagar. On that day he was on patrolling duty and were present at Gate no.8, Subhash Camp, Ambedkar Nagar. One lady was carrying plastic katta and after seeing him in police uniform turned back and tried to escape but was apprehended and checked. After checking kattas, illicit liquor were found. He informed the PS Ambedkar Nagar. After sometime IO/HC Ishwar Singh visited at the spot. HC Ishwar Singh counted the illicit liquor which were found 91 quarter bottles. HC Ishwar Singh recorded his statement. The illicit liquor were seized with the seal of DS vide seizure memo which was prepared in my presence Ex.PW1/A. Thereafter HC Ishwar Singh prepared rukka and sent it to PS through him for the registration of the case and the FIR was got registered through him. During the course of investigation HC Ishwar Singh arrested the accused in his presence vide memo Ex.PW1/B and her personal search was conducted by WC Anita vide memo Ex.PW1/C. He proved the case property as Ex.P1. He was cross examined by Ld. Counsel for the accused.
State Vs. Rajni 2/8 FIR no.113/10
6. PW 2 is HC Mahender Singh who deposed that on 4.6.2010, he was posted as constable at PS Ambedkar Nagar. MHC gave him a road certificate no.58/21 for depositing the sample in Excise Laboratory, ITO. He took the sample and deposited in Excise Laboratory. He started from the PS at about 12 in the noon. During the time, sample remained in his possession, it was not tampered with. (The road certificate is not on record).
7. PW 3 is HC Ishwar Singh who deposed that on 9.05.2010, on receiving of DD no.15 B, same is Ex.PW3/A he alongwith WC Anita reached at Beat no.8, Subhash Camp, Ambedkar Nagar where Ct. Harket met him and handed over him the accused alongwith recovered illicit liquor. He counted the illicit liquor which were found 91 quarter bottles. He recorded the statement of Ct. Harkesh. The illicit liquor were seized with the seal of DS vide seizure memo already Ex.PW1/A. Thereafter he prepared rukka and sent it to PS through Ct. Harkesh for the registration of the case and the FIR was got registered through Ct. Harkesh. During the course of investigation, he arrested the accused vide memo already Ex.PW1/B and her personal search was conducted by WC Anita vide memo Ex.PW1/C. He was cross examined by Ld. Counsel for the accused.
8. After these witnesses were recorded, the accused was examined u/s 313 Cr.PC in which accused has not admitted the incriminating evidence against her and further stated that she does not want to lead defence evidence.
9. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so State Vs. Rajni 3/8 FIR no.113/10 provided by any statute. This general burden never shifts and it always rests on the prosecution.
10. After going through the complete evidence and records of this case I am of the view that the accused deserves acquittal in this case on the following grounds.
11. Firstly, if the police personnel who has apprehended the accused with the illicit liquor was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 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 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 view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no. II, they were patrolling in the particular area. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
State Vs. Rajni 4/8 FIR no.113/10 "wherein it has been observed 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."
13. The next defence is that the public witness are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. Not even a single public witness has been examined by the prosecution nor joined in the investigation and no reason has been put forward by the prosecution witnesses that for what reason they are unable to gather support from public or independent witnesses to establish the guilt of the accused. Although, it can be said that it was a chance recovery but the incident had occurred from in a busy locality and therefore, it cannot be said that no public person would have been available at the spot. And even if the prosecution has not joined the public witnesses, it was incumbent upon the prosecution to at least put forward the reasons for not doing so. The failure on the part of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has State Vs. Rajni 5/8 FIR no.113/10 observed as under;
" 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 shop keepers 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."
14. In "Roop Chand Vs. The State of Haryana 1999 (1) C.L.R, the Punjab & Haryana High Court held as under: "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 from 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 State Vs. Rajni 6/8 FIR no.113/10 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 non joining 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".
15. In "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court observed that "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 non availability 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".
16. Since all the witnesses are police personnels and the necessary safeguards in the investigation has not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police.
17. Further as per the case of the prosecution it is not clear that to whom the seal after the use was handed over and when the seal was returned to the IO. No State Vs. Rajni 7/8 FIR no.113/10 memo has been prepared and proved on the record. The prosecution was bound to prove on the record as to when the seal was returned to the IO to remove the element of the tampering with the case property. Not only this there is an unexplained delay in sending the sample to the excise laboratory. The incident is of 9.5.2010 and the sample was sent to the Excise Laboratory on 4.6.2010. There is no evidence that the sample remained intact till delivery to the office of chemical examiner. Till that time the sample remained in police possession. It was the duty of the police to send the samples to the laboratory without any unexplained delay which could rule out any tampering with the case property which was not done in the present case and the case property remained in the police station for a period of around one month at the disposal of the police.
18. The prosecution although, has tried to prove its case but there is still a reasonable doubt regarding the false implication of the accused at the hands of the police. The benefit always goes to the accused.
19. On the basis of aforesaid discussions, it is held that the prosecution has failed to prove its case beyond reasonable doubt, hence the accused is acquitted of the offence u/s 61of Punjab Excise Act. She is set at liberty.
Announced in the open court (Navjeet Budhiraja)
on 14.3.2013 Metropolitan Magistrate04,
South, New Delhi
State Vs. Rajni 8/8 FIR no.113/10