Delhi District Court
State vs . Sunita @ Kamla on 31 October, 2014
State Vs. Sunita @ Kamla
FIR No. 738/06
PS: Keshav Puram
U/s 61/1/14 Excise Act
IN THE COURT OF SH. VIPLAV DABAS MM4(NORTH WEST) ROHINI
COURTS DELHI
State Vs. Sunita @ Kamla
FIR No. 738/06
PS: Keshav Puram
U/s 61/1/14 Excise Act
Case ID No. 02404R0072642007
Date of Institution of case : 27.02.2007
Date of Judgment : 31.10.2014
JUDGMENT:
a) Date of offence : 18.11.2006 b) Offence complained of : U/s 61/1/14 Excise Act c) Name of Accused, his : Sunita @ Kamla parentage & residence S/o Sh. Gopal R/o N-86/267, Jhuggi Railway Line, Lawrence Road, Delhi d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted Page No.1/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act BRIEF FACTS AND REASONS FOR DECISION:
1. That on 18.11.2006 at about 4:10 p.m, behind Attar Sain Jain Hospital, Lawrence Road, Delhi within the jurisdiction of PS Keshav Puram, accused was found in possession of one plastic Can containing 15 bottles of Country made liquor without any valid permit or license and thus committed an offence punishable u/s 61/1/14 Punjab Excise Act. After the usual investigation, the charge sheet for the offence U/Sec 61/1/14 Excise Act was filed against the accused.
2. The aforesaid charge-sheet was filed before the court on 27.02.2007, whereupon the cognizance of the offence was taken against the accused. Thereafter, the provisions of section 207 Cr.PC. were complied.
3. After hearing the arguments, charge u/s 61/1/14 Excise Act was framed against the accused to which the accused persons pleaded "Not Guilty" and claimed trial. Accordingly, the case was fixed for prosecution evidence.
4. During the course of the trial, prosecution examined five witnesses to substantiate the accusations levelled against the accused.
5. PW-1 HC Meg Singh No. 3111, Security E Block, Delhi proved the Page No.2/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act FIR exhibited as Ex. PW-1/A(OSR) which was recorded by him and the same bears his signature at point A. The endorsement on the rukka is Ex. PW-1/B bearing his signature at point B. The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity thereby amounting to its admission by/ on behalf of accused which proved the FIR.
6. PW-2 Constable Dilraj No. 1934/ North West PS Adarsh Nagar deposed that on 18.11.2006 he apprehended the accused Sunita who was carrying plastic Can containing liquor while he was on patrolling duty, that he sent the message to the PS telephonically upon which ASI Hari Ram and ASI Santosh reached at the spot and that he handed over the custody of accused and recovered plastic Can to the IO ASI Hari Ram. PW-2 Constable Dilraj further deposed that IO recorded his statement Ex. PW-2/A, that he arranged one empty bucket and bottle of 750 ml for measuring liquor which came out to be 15 bottles out of which one bottle was separated as sample and remaining liquor was poured in the same plastic Can, that Excise Form M-29 was filled and sample as well as plastic Can were sealed with the seal of HRS, that the seal after the use was handed over to the ASI Santosh, that the plastic Can was taken into possession vide seizure memo Ex. PW-2/B, that IO prepared rukka and handed over it to him for registration of the case, that the IO prepared the site plan Ex. PW-2/C and that accused was Page No.3/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act arrested and personally searched vide arrest memo and personal search vide Ex. PW-2/D and Ex. PW-2/E respectively. PW-2 Constable Dilraj further deposed thereafter the case property was deposited in the MallKhana which is Ex. P-1.
The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
7. PW-3 Constable Neeraj Kumar No. 669/North East, PS Shadhara proved the DD number 44B which was recorded by him in his own handwriting. The same is exhibited as Ex. PW-3/A. The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity thereby amounting to its admission by/ on behalf of accused which proved the said DD entry.
8. PW-4 HC Jitender No. 1213/North West, PS Mukherjee Nagar deposed that on 30.11.2006 he was posted at Constable in PS Keshav Puram and on that day MHC(M) HC Narender handed over to him one sealed bottles parcel sealed with the seal of HRS and he deposited the same in the FSL Excise Control Laboratory, Vikas Bhawan, I.P.Estate vide R/C No. 206/21/06 dated 30.11.2006. PW-4 HC Jitender further deposed that after depositing the same he returned to PS and handed over the copy of the R/C to MHC(M). PW-4 HC Jitender further deposed that no tampering Page No.4/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act etc was done with the case property.
The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
9. PW-5 Retired SI Hari Ram deposed that on 18.11.2006 after receiving the DD No. 44 B he alongwith W ASI Santosh reached at the back side of Attar Sen Jain Hospital where Ct. Dilraj Singh met him and handed over the custody of accused Sunita @ Kamla as well as case property, that he requested four/ five persons to join the investigation but none agreed and left the spot without disclosing their identity, that he recorded the statement of Contable Dilraj already Ex. PW-2/A, that he directed Constable Dilraj to arrange one empty bucket and bottle of 750 ml from nearby shop for measuring liquor which comes out to be 15 bottles out of which one bottle was separated as sample and remaining liquor was poured in the same plastic Can, that Excise Form M-29 Ex. PW5/A was filled and sample as well as plastic Can were sealed with the seal of HRS, that the seal after the use was handed over to the W ASI Santosh, that the plastic Can was taken into possession vide seizure memo already Ex. PW-2/B. PW-5 Retired SI Hari Ram further deposed that he prepared the rukka Ex. PW-5/B and handed over it to Ct. Dilraj for registration of the case, prepared the site plan and arrested the accused vide arrest memo Ex. PW-2/D and personally searched him vide personal search memo Ex. PW-2/E. PW-5 Retired SI Hari Ram further deposed that thereafter the case property was deposited with the Page No.5/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act MHC(M) and on 30.11.2006 the samples were deposited by Constable Jitender vide RC No. 206/21/06 and he collected the FSL result from the Excise Control Laboratory. The case property is Ex. P-1. During the cross examination the witness deposed that he does not remember the exact time when he reached the spot and again said that he reached at the spot at about 4:25 p.m, that he left the spot at about 8:00 p.m, that he prepared the seizure memo, arrest memo, personal search memo and also filled up the Excise Form while sitting on the bench lying near the Attarsen Jain Hospital, that he does not prepare any memo regarding the handing over of the seal as well as returning memo regarding the same, that he did not give any written notice to the passerby who refused to join the investigation, that WASI Santosh returned the seal to him after three four days of the incident and that the seizure memo was prepared by him from top to bottom. The witness denied the suggestion that accused was not caught with the illicit liquor and that all the documents have been prepared in Police Station to falsely implicate the accused.
10. Vide order dated 10.10.2014, prosecution evidence was closed by this Court after examination of all the material witnesses.
11. The Statement of Accused was recorded U/Sec 281 r/w 313 Cr. P.C on 27.10.2014 and all the incriminating circumstances appearing in evidence Page No.6/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act were put to the accused to which the accused replied that she has been falsely implicated in the present case and that nothing has been recovered from her possession. The accused chose not to lead any defence evidence and hence defence evidence was closed.
12. I have heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and have perused the record of the case.
13. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused that she has been falsely implicated in the present case, that nothing was recovered from her possession and that entire investigation is sham as no public witnesses were joined during the same.
14. I have heard the Ld. APP for the state as well the defence counsel.
15. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. It is evident from the testimony of PW-2 and PW-5 that accused was apprehended alongwith the alleged liquor at public place and public persons were asked to join the investigation who did not agree still police officials neither served any Page No.7/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act notice upon them to initiate prosecution for refusal nor recorded their names or addresses to show that the police officials made bonafide efforts to persuade the public persons to join the investigation. It is apparent from the testimony of PW-2 & PW-5 that the seal after use was handed over to W ASI Santosh by the IO and not any independent witness who both are police officials and were posted in the same police station on the relevant date and time which makes it highly probable that the entire proceedings were conducted at the police station, that the case property was planted one and that nothing was recovered from the accused at the spot. This observation is further strengthened from the admission made by PW-5 that handing over and returning memo of the seal was also not prepared. It is also pertinent to mention that prosecution has failed to produce any documentary evidence or the DD entries made to show that PW-2 Constable Dilraj was on patrolling duty. The prosecution witnesses have not even given the DD numbers vide which they deposited the case property with the Malkhana. These omissions on the part of the prosecution create doubt on the version that the accused was apprehended with the alleged liquor at the spot by the said PWs. Further, the testimony of PW-2 and PW-5 as well as perusal of rukka shows that the seizure memo Ex. PW-2/B and Form 29 exhibited as Ex. PW-5/A were prepared prior to the dispatch of the Rukka and registration of the FIR. However, perusal of the said document clearly shows that the FIR number and other particulars of the present case are mentioned on the said Page No.8/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act documents. It is further admitted by PW-5 that the entire seizure memo was prepared by him which indicates that this document was completely prepared in one go and not in bits. No explanation has come from the prosecution as to how the FIR number surfaced on this document which were prepared prior to the registration of the case. This fact casts a doubt upon the testimony of PWs because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said document. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
These failures on the part of prosecution create reasonable doubt in the prosecution story and is fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused. In support of aforesaid observations, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in Page No.9/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act 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 a case law reported as Roop Chand Vs. The State of Haryana 1999 (1) CLR 69, the Hon'ble 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 Page No.10/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act 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 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 Page No.11/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act 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".
In case law reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It Page No.12/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably 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, 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 joined. 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 stereo-type 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 Page No.13/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act on the prosecution version."
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is submitted as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
15. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal.
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16. It the present facts, it is pertinent to mention the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC)"
wherein the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt which failed to do so in this case. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the Page No.15/16 State Vs. Sunita @ Kamla FIR No. 738/06 PS: Keshav Puram U/s 61/1/14 Excise Act judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
17. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the accused beyond reasonable doubts benefit of which must go to the accused. Accordingly, accused Sunita @ Kamla, W/o Sh. Gopal is acquitted of the charge leveled against her. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Case property be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABAS)
today i.e on 31.10.2014 MM-04/North West, Rohini Courts:DELHI
31.10.2014
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