Delhi District Court
State vs Kailash on 10 February, 2015
FIR No.303/10
P.S. Narela
U/s. 61 of Punjab Excise Act, 1914.
State Vs Kailash
IN THE COURT OF SANDEEP GUPTA: METROPOLITAN
MAGISTRATE:ROHINI COURTS:DELHI
FIR No. 303/10
P.S. Narela
U/s. 61 of Punjab Excise Act, 1914
State Vs. Kailash
Date of Institution of case:-04.12.10
Date of Judgment reserved:-10.02.15
Date on which Judgment pronounced:- 10.02.15
JUDGMENT
Unique ID no. : 02404R0314642010
Date of Commission of offence : 29.07.10
Name of the complainant : Ct. Nisan, No.658/OD, PS Narela,
Delhi.
Name and address of the accused : Kailash S/o Devi Singh, R/o Jhuggi
No.A-66, Punarvas Colony, Gautam
Colony, Narela, Delhi.
Offence complained of : 61 of Punjab Excise Act, 1914
Plea of accused : Not guilty
Date of order : 10.02.2015
Final Order : Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:
Accused Kailash S/o Sh. Devi Singh has been sent up for the trial for the offence U/s. 61 of Punjab Excise Act, 1914 for the reason that on 29.07.10 at about 10:20 a.m. at Gali No.5, JK Farm, Gautam Colony, Narela Delhi, he was found in possession of one plastic katta which was found containing 72 half bottles of 'Angoori Masaledar' 375 ml without any permit or licence and on the basis of the said allegations, the present FIR bearing no.303/10 was registered at Police Station Narela and the accused has been charged with the offence under Section 61 of Punjab Excise Act, 1914.
FIR no. 303/10, P.S. Narela Page 1 of 8 State Vs. Kailash FIR No.303/10 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
2. After investigation, charge-sheet was filed against the accused and after supplying the copies to him in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C), a charge U/s. 61 of Punjab Excise Act, 1914 was framed against the accused on 17.01.2013, to which accused pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined four witnesses.
4. PW1 is Ct. Surender Singh, No. 2436/OD, PS Alipur, Delhi. He deposed that on 30.07.2010, on the instructions of the IO, he collected the samples duly sealed with the seal of SB No. 165/21/10 and on return handed over the receipt to the MHC(M). He further deposed that the samples had not been tampered with as long as it remained in his custody. He has not been cross-examined by Ld. defence counsel despite given opportunity.
5. PW2 is L/Ct. Kamlesh, No. 1741/NW, PS Shalimar Bagh, Delhi. She was the DD writer. She deposed that on 29/07/10, she recorded DD no. 32 B regarding recovery of illicit liquor from a person at main Gali No. 5, near J.K. Farm house, Gautam colony, Narela, Delhi, whose attested copy is on file record. She had brought the original DD register containing the aforesaid entry. The same was in her handwriting. The attested copy of the same was Ex. PW2/A. She has not been cross-examined by Ld. defence counsel despite given opportunity.
6. PW3 is Ct. Nishan, No. 658/OD, PS Alipur, Delhi. He was the initial recovery witness. He deposed that on 29/07/10, while patrolling, when he was present at Gautam colony, near J.K. Farm house, one secret informer came to him and informed that one person would come carrying one plastic katta containing illicit liquor and if raided, that person can be apprehended with illicit liquor. He further deposed that he informed the SHO through telephone who FIR no. 303/10, P.S. Narela Page 2 of 8 State Vs. Kailash FIR No.303/10 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Kailash ordered him to take immediate action. He further deposed that he asked 4/5 public persons to join the investigation but none agreed. Thereafter, he took the position at the road gali No. 5, near J.K. Farm House, Gautam colony, Narela, Delhi, at about 10.20 a.m, he saw one person coming from the Safiabad road side carrying one plastic katta which was found containing 72 half bottles of 'Angoori Masaledar' 375 ml without any permit or licence iabad road side, who was carrying one plastic katta on his head. Thereafter, he stopped him and checked the plastic katta, which was found containing illicit liquor. Thereafter, on interrogation he revealed his name as Kailash S/o Sh. Devi Singh, present in the court. Thereafter, he gave this information to PS upon which IO/ HC Suraj Bhan came at the spot and he handed over accused and case property i.e one plastic katta containing illicit liquor to him. Thereafter, IO recorded his statement Ex.PW3/A. Thereafter, IO requested 4/5 passers by to join the proceedings but none agreed. Thereafter, IO opened the katta and counted the case property, which was found to be containing 72 half bottles of Angoori Masaledar Sharab, out of which IO separated one half bottle as a sample and put the remaining case property in the same plastic katta and sealed both sample and remaining case property with the seal of SB. Thereafter, IO filled form M-29 and seal after use was handed over to him. Thereafter, IO seized the case property vide seizure memo Ex. PW3/B. Thereafter, IO prepared the rukka and handed over the same to him for registration of FIR upon which he went to PS and got the case registered and came back at the spot with original rukka and copy of FIR and handed over the same to the IO. Thereafter, IO prepared the site plan at his instance. Thereafter, IO arrested the accused vide arrest memo Ex. PW3/C and conducted his personal search vide Ex.PW3/D. Thereafter, on producing surety, accused was released on bail. Thereafter, they went to the police station and deposited the case property in malkhana. Thereafter, IO recorded his statement.
FIR no. 303/10, P.S. Narela Page 3 of 8 State Vs. Kailash FIR No.303/10 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Kailash MHC(M) had produced one plastic katta without any seal. The katta was opened and found containing half bottles of illicit liquor out of which around 15-20 half bottles were empty. Case property was shown to the witness and witness correctly identified the same as recovered from the possession of accused. The plastic katta along with half bottles of liquor were Ex.P1 collectively.
During his cross-examination by Ld. defence counsel, he admitted that the spot was a residential area but no notice was given to the residents of the locality who refused to join the investigation. He further deposed that the seal was handed over to IO on the same day after reaching to the PS. He denied the suggestion that no recovery was effected from the accused. He further denied the suggestion that all the paper work was done at PS and that he had deposed falsely.
7. PW4 is HC Suraj Bhan, No. 169/OD, PS Alipur, Delhi. He was the investigating officer in the present case. He has also deposed on the similar lines as that of PW3 Ct. Nishant. Therefore, his testimony is not repeated herein for the sake of brevity and to avoid verbosity/repetition. In addition to this he proved the rukka Ex.PW4/A and site plan Ex.PW4/B. He also correctly identified the accused. He also deposed that on 30/07/2010, the abovesaid sample was sent to excise laboratory through Ct. Surender vide RC No. 165/21. Thereafter, he recorded statement of witnesses. Thereafter, report/result was received from Excise Lab and same was Ex.PW4/C. After completion of investigation, chargesheet was prepared and filed in the court.
MHC(M) had produced one plastic katta sealed with the seal of court seal. The katta was opened and found containing half bottles of illicit liquor out of which around 15-20 half bottles were empty. Case property was shown to the witness and witness correctly identified the same as recovered from the possession of accused. The plastic katta with half bottles of liquor were Ex. as FIR no. 303/10, P.S. Narela Page 4 of 8 State Vs. Kailash FIR No.303/10 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Kailash P1 collectively.
During his cross-examination by Ld. defence counsel, he deposed that he requested public persons to join the investigation but none agreed. He did not give any notice to public person who refused to join the investigation. He denied the suggestion that no recovery was effected from the accused. He also denied the suggestion that the case property was planted upon the accused and that he had deposed falsely.
8. As far as, Excise report is concerned, I take judicial notice of the same.
9. It is a matter of record that after examination of all the material witnesses on 03.04.2014 prosecution evidence was closed.
10. Subsequent to the recording of statement of witnesses, statement of accused was recorded and all the incriminating evidence having came on record were put to the accused, in which he submitted that he is innocent and has been falsely implicated in the present case. He has further submitted that he does not wish to lead any evidence and final arguments were heard.
11. I have heard both the parties and perused the record.
12. In the present matter, the accused has been charged U/s. 61 of Punjab Excise Act, 1914 and to convict the accused, the prosecution has to prove that the accused was found in possession of one plastic katta which was found containing 72 half bottles of 'Angoori Masaledar' 375 ml without any permit or licence.
13. In the present case, the deposition of PW3 and PW4 shows that public persons were requested to join the proceedings but none agreed. In these circumstances, like the present one, if public person were asked to join but have refused to assist the member of police party, they could have served the said public witness with a notice in writing to join police proceedings but perusal of the record shows that nothing sort of this was done in the present case. Even FIR no. 303/10, P.S. Narela Page 5 of 8 State Vs. Kailash FIR No.303/10 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Kailash non examination or non joining of any public witness cast doubts on the case.
14. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence 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".
15. In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, 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 to 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 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 FIR no. 303/10, P.S. Narela Page 6 of 8 State Vs. Kailash FIR No.303/10 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Kailash 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 provision 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".
Hence, it creates doubt in the story of prosecution.
16. The another material thing, which is required to discuss about the case of the prosecution is that on 29.07.10, PW3 was on patrolling duty and present at Gautam Colony, near J.K. Farm house, Delhi meaning thereby that at the relevant time he was not in the PS and it seems he was outside the PS, then as per Punjab Rules, he being on duty was required to enter his departure & arrival to & from the PS Narela in the DD Register of the said PS
17. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No. II-The following matters shall, amongst others, be entered.:-
(c) The hour of arrival and the 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 personality by signature or seal.
Note:- The term Police Station will include all places such as Police Lines & Police Posts, where Register No. II is maintained.
18. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW3. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the presence of PW3 and other staff at the spot. Hence, it creates doubt in the prosecution story.
19. Further, in the present case, no efforts were made to hand over the FIR no. 303/10, P.S. Narela Page 7 of 8 State Vs. Kailash FIR No.303/10 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Kailash seal after use in the presence of independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out. Further, it is also seen that the case property when first time produced before the court i.e. one plastic katta without any seal. The katta was opened and found containing half bottles of illicit liquor out of which around 15-20 half bottles were empty. It is also an admitted fact that recovery memo was prepared before the registration of the FIR. But the perusal of recovery memo shows that FIR number is mentioned at the top of it. It is a surprising fact that how the FIR number came at the top when the FIR was not registered at that time. No explanation has been given on this point. All these things create severe doubt over the story of prosecution.
20. In view of the above said discussion, I am of the considered view that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Kailash is hereby acquitted from the charges U/s. 61 of Punjab Excise Act, 1914.
21. File be consigned to Record Room after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini Court,Delhi ANNOUNCED IN THE OPEN COURT TODAY i.e. 10th February, 2015 FIR no. 303/10, P.S. Narela Page 8 of 8 State Vs. Kailash FIR No.303/10 P.S. Narela U/s. 61 of Punjab Excise Act, 1914.
State Vs Kailash FIR No. 303/10 P.S. Narela U/s. 61 of Punjab Excise Act, 1914 State Vs. Kailash 10.02.2015 Present: Ld. APP for the State.
Ld. counsel for the accused with accused on bail. I have heard the arguments and perused the record. Vide separate judgment dictated to the steno in the open court, accused Kailash is acquitted of the said offence U/s. 61 of Punjab Excise Act, 1914 At request, previous bail bond of accused is extended in terms of Section 437 A of Cr.P.C.
File be consigned to Record Room, after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini/Delhi FIR no. 303/10, P.S. Narela Page 9 of 8 State Vs. Kailash