Delhi District Court
Roop Chand vs . State Of Haryana 1990 (1) Clr 69 It Was on 3 May, 2011
IN THE COURT OF SHRI RAJESH MALIK : MM (WEST) 05
TIS HAZARI COURTS : DELHI
1.FIR No. :177/01
2.Unique Case ID No. :R0225802001
3.Title
3(A).Name of complainant :HC Krishan Kumar
3(B).Name of accused :Smt. Shailender Kaur W/o
Sanjay Kumar R/o WZ23A,
Sant Garh, Tilak Vihar, Delhi.
4.Date of institution of challan :07.12.2001
5.Date of Reserving judgment :03.05.11
6.Date of pronouncement :03.05.11
7.Date of commission of offence :07.04.01
8.Offence complained of :Under Section 61 of Punjab
Excise Act,1914
9.Offence charged with :Under Section 61 of Punjab
Excise Act,1914
10.Plea of the accused :Pleaded not guilty
11.Final order :Acquitted.
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The case of the prosecution in brief is that on 07.04.01 at about 9.45 pm near in front of Shamshan Ghat, Sant Garh, Delhi, she was found in possession of one plastic can containing country liquor equivalent to 11 bottles of 750 ml each seized vide seizure memo Ex.PW1/A without any permit or licence and thereby committed an offence punishable u/s 61.1.14 FIR No.177/01 1/7 Excise Act.
2. Accordingly, charge sheet was filed, copies were supplied to the accused in compliance of section 207 cr.p.c and charge u/s 61/1/14, Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. The prosecution in support of its case examined five witnesses.
PW1 Ct. Naresh Kumar deposed that on 07.04.01, during patrolling duty along with HC Krishan in the area of Sant Garh at about 9.30 pm, HC Krishan received secret information about illicit liquor. IO requested fourfive persons to join the raiding party but none agreed. After preparing raiding party, they held nakabandi at Sant Garh near Shamshan Ghat. At about 9.45 pm, they noticed a woman coming from the side of B Block, Tilak Nagar carrying a plastic can in her right hand. She was stopped at the instance of secret informer, the plastic can was checked and thereafter, IO measured the contents of liquor with the help of bucket, bottle and mug brought by him. Out of which, one bottle was taken out as sample and remaining liquor was put back in the same plastic can. Thereafter, the sample bottle and plastic can were sealed with the seal of KK. IO handed over the seal to him after use. IO filled up excise form at the spot. The case property was taken into possession vide seizure memo Ex.PW1/A. IO prepared rukka and handed over the same to him for getting the FIR registered. He went to PS, got the FIR registered and handed over the copy of FIR and rukka to HC Rajender Singh on the instruction of the Duty Officer as the further investigation was handed over to him. Then they reached at the spot. IO handed over the accused, prepared documents and FIR No.177/01 2/7 case property to HC Rajender. HC Rajender Singh prepared site plan at the instance of HC Krishan. The accused was arrested and was later on released on bail.
PW2 ASI Kailash deposed that he registered FIR vide Ex.PW2/A and made endorsement vide Ex.PW2/B on rukka.
PW3 HC Bhagwant Singh deposed that on 05.09.2001, he collected the excise result from the excise office vide Ex.PW3/A. Thereafter he presented the file before SHO who prepared challan and filed in the court.
PW4 Ct. Ram Naresh deposed that on 23.04.2001, he took the bottle of liquor as sample of this case to the excise office vide RC No.25/21. After depositing the sample there, he obtained the acknowledgement and handed over the same to MHCM.
PW5 HC Rajender Singh deposed that on 07.04.2001, he was posted as HC at PS Tilak Nagar. After registration of FIR, the further investigation was handed over to him. He along with Ct. Naresh Kumar went to the place of occurrence i.e. Near Shamshan Ghat, Sant Garh where he met HC Krishan Kumar who handed over him one plastic can, sample bottle sealed with seal of KK, accused, and memos prepared by him to him. Upon the instance of HC Krishan Kumar, he prepared site plan vide Ex.PW5/A. He arrested accused vide arrest memo Ex.PW5/B and put FIR particulars on the top of the memos. He recorded statements of witnesses. Late on, accused was admitted to police bail. The case property was deposited at Malkhana. On 23.04.2001, upon his instructions, Ct. Ram Naresh collected sample bottle along with FormM29 from MCHM and deposited the same at Excise Office, ITO. After deposit, he returned the FIR No.177/01 3/7 receipt to MHCM and I recorded his statement. He identified the case property as Ex.P1 being recovered from the possession of accused Shalender kaur present in the court.
4. No other PW was examined . PE was closed. Accused was examined u/s 281 Cr.P.C wherein accused submits that she is innocent and has been falsely and wrongly implicated in this case. She further submits that nothing incriminating was recovered from her possession, in fact, she was lifted by the police official and was taken to PS where liquor was planted upon her. However, she denied to lead any evidence in defence.
5. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully.
6. Now, the stage has been set to examine the case of the prosecution to see whether it inspires confidence and passes the test of probability, credibility and trustworthiness.
7. Apparently, no independent public witness has been joined either during raid or during investigation despite prior secret information and opportunity. As per the case of the prosecution, the alleged recovery took place at about 9.45 pm and as per the testimony of PW1 Ct. Naresh Kumar, he admitted that the place of information is a residential area and IO did not ask the passers by in writing to join the raiding party. The explanation given that certain public persons were requested but they refused does not appeal to common sense and does not appear plausible as even names and addresses of those requested have not been mentioned. It does not appeal to common sense that police officials even could not obtain the names and addresses of the persons requested. Admittedly no legal action has been taken against any FIR No.177/01 4/7 of the persons who refused to join the raid. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
8. In the case of PREM SINGH VS. STATE 1996 CRI.L.J.3604 (DELHI) and in the case of PAWAN KUMAR VS. DELHI ADMN.1989 CRLJ 0127 DEL wherein the court observed as under: ''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 explanation 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 FIR No.177/01 5/7 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.''
9. Further, there is also delay of about 16 days in sending the sample property to the excise lab which has not been explained and in such circumstances especially when the seal was not handed over to independent persons and remained with the police officials of the same police station where the property was lying benefit of doubt must be given to the accused as observed in AJIT SINGH VS. STATE OF PUNJAB 1984 (2) RECENT CRIMINAL REPORTS 95.
10. Also in this case no efforts were made to hand over the seal after use to independent public persons and in such cases in view of SAIFULLA VS. STATE 1998 (1) CCC 497 (DELHI) and ABDUL GAFFAR VS STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused.
11. Now, since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts , the only plausible findings which can be given against the accused are that of not guilty. Accordingly, the accused is acquitted in the present case. Her surety is discharged. Bail bond cancelled. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
File be consigned to records after due compliance.
Announced in the open (RAJESH MALIK) Court on 03.05.11 MM ( West)05/NEW DELHI FIR No.177/01 6/7 FIR No. 177/01 PS Tilak Nagar 04.05.11 Present: Ld. APP for the State. Accused in person with counsel. Today case is fixed for PE. No PW is present. PE stands closed.
Statement of the accused has been recorded. However she does not want to lead evidence in her defence.
Ld. Counsel for accused requests that arguments be heard today itself. Accordingly, arguments heard.
Vide separate judgment dictated and announced in the open court, accused is acquitted of offences under Section 61.1.14 Excise Act.
Her bail bond is extended till the expiry of period of limitation for appeal. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
File be consigned to records after due compliance.
(RAJESH MALIK) MM( West)05/NEW DELHI FIR No.177/01 7/7