Delhi District Court
State vs . Mahesh Kumar on 9 May, 2008
State Vs. Mahesh Kumar
IN THE COURT OF SH. GAUTAM MANAN:M.M : NEW DELHI.
In the matter of:
STATE VS MAHESH KUMAR
FIR NO. : 110/03
P.S.: AMBEDKAR NAGAR
U/S: 61/1/14 EXCISE ACT
JUDGMENT:
1. Sr. No. of the case 447/02
2. Date of commission of offence 14.03.2003
3. Name of the complainant State through: HC Devinder Singh
4. Name of the accused Mahesh Kumar, S/o Om Prakash,
r/o 224, Devli Village, Kumar
Mohalla, New Delhi.
5. Offence complained of U/S 61/1/14 Excise AcT
6. Plea of the accused Pleaded not guilty.
7.Final Order Acquitted
8. Date of institution of the case 30.07.2003
9. Date when the case was
reserved for orders 09.05.2008
10.Date of such order 09.05.2008
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. Accused Mahesh Kumar has been sent up for trial on the allegations that on 14.03.2003 at about 2:10 AM in front of plot of Chander, B-Block, durga Vihar, Devli within the area of PS Ambedkar Nagar he was found in possession of five gunny bags containing 5 Boxes each total of 1200 quarter Bonny Scot Bottles without any permit or State Vs. Mahesh Kumar license and in contravention of the Notification and thereby he committed an offence punishable U/s 61/1/14 of Excise Act.
2. Accordingly, vide order dt. 22.07.2004 of my Ld. Predecessor a charge U/S 61/1/14 of Excise Act was framed against the accused to which the accused pleaded not guilty and claimed trial.
3. In support of its case prosecution has examined three witnesses.
PW1 is HC Devinder Singh who deposed that on 13.03.2003 he was on patrolling duty with Constable Mahinder & Raghuubir. At about 2 AM a secret informer gave an information to them that one person Mahesh supplies liquor and would take some liquor at vacant plot. He further deposed that on receipt of the information, he requested 2-3 persons to join the investigation, but none became ready. He further deposed that he formed a raiding party and raided the plot. The accused managed to escape taking advantage of the dark but the above stated case property was recovered from the plot. Later on the accused Mahesh was arrested on 08.04.2003 when he surrendered before the Court. The witness proved the seizure memo of liquor as Ex PW1/A and rukka as Ex PW1/B. The witness proved the arrest memo of accused as Ex PW1/C. The case property has been proved as Ex P-1 to P-5.
PW2 HC Pritam Singh proved the FIR in question as Ex PW2/A. PW3 ASI Mahinder Singh (IO) deposed that PW1 handed over State Vs. Mahesh Kumar the copy of FIR to him as the investigations of the present case was marked to him. He prepared the site plan at pointing out by PW1. The witness proved the site plan as ExPW3/A. The case property was deposited in Malkhana nad samples were sent to Excise Lab.
4. Thereafter, prosecution evidence was closed and statement of accuse was recorded under section 281 Cr.P.C. wherein all the incriminating evidence existing on record including exhibited documents were put to the accused person to which stand of the accused person was of general denial and he stated that he is innocent and has been falsely implicated in this case. However, accused person has chosen not to lead evidence in his defence.
5. I have heard Ld. APP for the State and perused the record carefully.
6. Admittedly, in the present case no public witness has been joined despite availability. Admittedly, several public witnesses were available at the time when the accused person was arrested and when the alleged recovery was affected from the accused person and other formalities were completed. The alleged place of recovery is the thickly populated area and admittedly none of the occupants from any of the said houses were even requested to become a witness. Even the name or addresses of the persons who were requested to join the investigation, have not been mentioned. Admittedly, no notice was served by the IO upon the public persons on their refusal to join the investigation. Thus, it appears that sincere efforts were not made by the IO to join independent State Vs. Mahesh Kumar witnesses and hence the benefit of doubt must be given to the accused person. I am fortified on this point by the judgments in the case of Prem Singh Vs State, 1996, CRL. L.J. 3604 (Delhi), Sadhu Singh Vs State of Haryana 2000(2) C.C. Cases HC 73.
7. In the present case, the departure entry of the police officials for patrolling and returning of the police officials to the PS with the accused and the case property have not been placed on the record. In the absence of the same it cannot be ascertained as to whether the police persons were actually on patrolling duty and at what time they came back along with the case property and the accused. It further makes the prosecution version doubtful. From the testimony of PWs, it is clear that no efforts were made to hand over the seal after use to independent public person and hence benefit of doubt is to be given to the accused. I am supported on this point by the judgment in the case of Saifullah Vs State 1998 (1) C.C. Cases 497 (Delhi) and Abdul Gaffar Vs State 1996 JCC 497 (Delhi).
8. Perusal of the seizure memo Ex. PW 1/A reveals that FIR number and case particulars are mentioned on the said memo. However, case of the prosecution is that seizure memo was prepared prior to the registration of FIR. If that be so then it creates doubt why the seizure memo bears case particulars. This makes the recovery from the accused person doubtful and manipulation cannot ruled out.
9. The PW1 during his cross examination admitted that there was so much weight of the each bag no person could lift more than one bag than how it was possible for the accused to have possessed such quantity of liquor on his own. Admittedly the accused was not arrested from the spot nor the plot belongs to him than how the investigations made in the case reached to the conclusion that the accused Mahesh was at the plot with the liquor. All these facts creates doubt of the recovery.
10. Moreover, out of 1200 bottles of 180ml each only twenty five bottles were taken out as sample thus it cannot be stated with certainty that the other bottles were containing liquor too. The Excise result of even of one bottle has not been proved in accordance with law.
11. In view of above said discussions, I am of the considered opinion that the prosecution has not been able to prove its case against the accused person beyond reasonable doubt. Accused person is given benefit of doubt and he is accordingly acquitted of the charge punishable U/S 61 of Excise Act. Bail bond and surety bond canceled. Case property be disposed of as per law after expiry of period of appeal.
File be consigned to record room.
Announced in open Court on 9th May 2008 (GAUTAM MANAN) METROPOLITAN MAGISTRATE NEW DELHI