Delhi District Court
State vs . on 17 September, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR METROPOLITAN
MAGISTRATE1 (EAST) KARKARDOOMA COURTS, DELHI
In the matter of:
State
Vs.
Urmila
FIR NO. 351/2003
P.S. Krishna Nagar
JUDGMENT
1. Sr. No. of the case : 472/03
2. Date of institution : 16.09.2004
3. Name of the complainant : Constable Hari Singh
4. Date of commission of offence : 14.10.2003
5. Name of accused : Urmila @ Baby,
S/o. Sh. Surender Singh,
R/o. 28/1/12, Gali no. 2,
East Azad Nagar, Delhi.
6. Offence complained of : Section 61 of the Punjab
Excise Act, 1914
7. Plea of guilt : Accused pleaded not guilty
8. Date of reserving the Judgment : 31.08.2012
9. Final order : Acquitted
10. Date of such Judgment : 17.09.2012
Page no. 1 of 11 St. vs. Urmila; FIR No. 351/2003
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1. The case of the prosecution is that on 14.10.2003, accused Urmila @ Baby was found in possession of 16 quarter bottles of illicit liqour at about 7.00 pm at Near water tank, East Azad Nagar, Delhi. First Information Report (in short 'FIR') No. 351/2003 under section 61 Punjab Excise Act, 1914 (in short 'the Act') as applicable to the National Capital Territory of Delhi was registered at Police Station Krishna Nagar, Delhi. After investigation, chargesheet was filed before this Court under section 61 the Act and thereafter, accused was summoned for the offene under section 61 of the Act .
2. In light of the above stated facts and proceedings, after making compliance of provisions of section 207 Code of Criminal Procedure, 1973 (in short "Cr.P.C") vide order dated 19.07.2005 finding a prima facie case, Dr. Rajneesh Kumar Gupta, the then Learned MM Krishna Nagar, framed charge for the offence punishable under section 61 of the Act, to which the accused pleaded not guilty and claimed trial.
3. For proving its case, the prosecution has produced five witnesses.
3A. PW1 HC Rajender Prasad, proved the present FIR Ex. PW1/A. 3B. PW2, Lady Constable Yogita, mentioned that on 14.10.2003, after receiving a call at Police Station, she went to the spot, i.e., Pani Ki Page no. 2 of 11 St. vs. Urmila; FIR No. 351/2003 3 Tanki, East Azad Nagar, where ASI Mahesh Yadav and Ct. Hari Singh alongwith 16 qurters bottles of illicit liquor. Thereafter, she took the personal search of the accused. Further, witness identified the accused and case property Ex. P1 to P14.
3C. PW3 HC Babu Ram, mentioned that on 14.10.2003, he made a entry in register no. 19 regarding the deposition of case property in Malkahna at serial no. 2178/435 and copy of the same is Ex. PW3/A. 3D. PW4, HC Raj Kumar, deposed on the directions of IO SI Mahesh Yadav, he obtained the sample, i.e., two quarter bottles vide R. C. No. 63/21 from the Malkhana for depositing the same at Excise Laboratory.
3E. PW5, HC Hari Singh, mentioned that on 14.10.2003, he was on patrolling duty and at about 7.00 pm, when he reached at near water tank, East Azad Nagar, he saw that accused alongwith one bag in her right hand was coming from the side of Swaran Cinema and started moving back after seeing him. On suspicion, accused was stopped and on checking the said bag, 16 quarter bottles of illicit liquor was found. Meanwhile, ASI Mahesh Yadav also reached at the spot. I handed over the accused and recovered liquor to him. Thereafter, Lady Ct. Yogita was also called at the spot by the IO. IO took two quarter bottles from the recovered liquor as a sample and sealed the sample and remaining liquor with the seal of MSY. Thereafter, IO filled the Form M29 and prepared the seizure memo Ex. PW2/A. Thereafter, IO recorded his Page no. 3 of 11 St. vs. Urmila; FIR No. 351/2003 4 statement Ex. PW5/A and prepared the rukka and handed over th same to him for the registration of FIR. He went to PS and after came back from the PS, he handed over the copy of FIR and original rukka to IO. Thereafter, IO arrested the accused and W/Ct. Yogita personally search her. Further, witness identified the accused and case property Ex. P1 to P14 3F. PW6, SI Mahesh Yadav, deposed on the lines of PW5. Apart from that, he mentioned that he filled the excise from Ex. PW6/A and prepared the site plan at the instance of Ct. Hari Singh Ex. PW6/B.
4. Statement of accused was recorded under section 313 Cr. P.C., when accused was briefed on all the incriminating evidence, he denied the allegations and mentioned that he has been falsely implicated in this case after lifting her from her house. However, he opted not to lead evidence in his defence.
5. I have heard the State through Sh. M. A. Khan, Learned Assistant Public Prosecutor and Ms. Neeta Goel, Learned counsel for accused. Record is also gone through.
6. Ld. APP for the State argued that prosecution witnesses have fully supported the prosecution case and they have identified the accused and case property in their respective evidence and there is no Page no. 4 of 11 St. vs. Urmila; FIR No. 351/2003 5 law which provides that examination of public witness is necessary and therefore, accused may be convicted. Learned defence counsel had contended that despite the availability of public persons on the spot, no independent witness was joined during recovery and further there are number of lacunas in the prosecution case; that seal was not handed over to independent witness, which pushing the case in the shadow of doubts.
7. It is observed that the case of the prosecution in respect of offence under section 61 of the Act is entirely based on the testimony of prosecution witnesses who are police officials. It is evident that no public witness was joined though the quarter bottles were allegedly recovered from the accused from a public place. It is a well settled principle of law that despite the availability of public witnesses, if no independent witness has been joined during investigation or at the time of recovery, then the testimony of police officials has to be scrutinized carefully. In Satish Kumar Vs. State CRL. A. 125/2000 decided on 16.07.2012, Hon'ble Delhi High Court has observed that the testimony of a witness cannot be completely ignored or brushed aside just for the fact that the witness is a police person but where all the prosecution witnesses are police persons only and no independent witness to the incident is examined by the prosecution, it becomes necessary to exercise a greater caution.
Page no. 5 of 11 St. vs. Urmila; FIR No. 351/2003 6 The Hon'ble Allahabad High Court also in the case titled as Swami Dayal vs. State, 1953 D.L.R. All.10, has put the legal position in a nutshell as follows :
"A search is not vitiated by noncompliance with the provisions of Sec. 103 of the Code of Criminal Procedure, a breach of which only put the Court on guard and incline it to scrutinize evidence of witnesses more closely. The effect of such irregularity will, however, depend on the circumstances of each particular case. But a search carried out with the aid of witnesses available at the time, even though they may not be independent, cannot be characterized to be in any way improper and cannot, in any case, have the effect of sweeping away the results of such a search."
In Prithavi Pal Singh Vs. State, 2000(1) JCC (Delhi), 274, it has been held by Hon'ble Delhi High Court that failure to comply with the provisions of Code of Criminal Procedure (Cr.P.C.) in respect of search and seizure and particularly those to sections 100, 102,103 and 165 per se does not vitiate the trial, but it has to be born in mind that conducting the search and seizure in violation of statutory safeguards would be violative of reasonable, fair and just procedure. In Menka Gandhi Vs. Union of India, (1978) 1 SCC 248, it was held that when a statute itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, and accused has the right to a reasonable, fair and just procedure. Sections 100, 102,103 and 165 of the Cr.P.C. provide for a reasonable, fair and just procedure.
Following was held in Ratan Lal Vs. State, 1987 (2) Crimes 29 :
Page no. 6 of 11 St. vs. Urmila; FIR No. 351/2003 7 "...................No public witness was involved in the matter of search and seizure as envisaged by subsection (4) of Section 100 Cr.P.C.. The explanation offered is that public witnesses were requested but they declined to cooperate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case is may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to cooperate without reasonable cause inspite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187 I.P. C. and this has been clearly spelt out in subsection (8) of the Section 100 Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards."
In Ritesh Chakarvarti Vs. State of Madhya Pardesh, 2006(4) RCR, (Criminal) 480, Hon'ble Supreme Court has held at Para no. 24, 25 & 26 that:
"24. If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even Page no. 7 of 11 St. vs. Urmila; FIR No. 351/2003 8 nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken.
"25. Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus :
" The Court may presume
(a) ***
(b) ***
(c) ***
(d) ***
(e) ***
(f) ***
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who holds it."
"26. An adverse inference, therefore, could be drawn for non examination of material witnesses."
As per prosecution witnesses, some public persons were asked to join the investigation but none was agreed and went away without disclosing their names and addresses. No notice for not joining the investigation were given to these public witnesses. Recovery witnesses did not call any local resident/shopkeepers to join the investigation.
8. It has come in the cross examination of IO SI Mahesh Yadav Page no. 8 of 11 St. vs. Urmila; FIR No. 351/2003 9 that dabba in which the sample was kept, was brought by Ct. Hari Singh. But he could not tell as to from where said Hari Singh has acquired the said Dabba. Ct. Hari Singh has not deposed that he had arranged the said Dabba.
9. As per the IO SI Mahesh Yadav, case property was deposited into Malkahana. This witness has not deposed that case property was not tempered until it remains in his custody. As per MHC(M), he made an entry on 14.10.2003 in register no. 19 regarding the deposition of the case property in the Malkhana. Said MHC(M) has not deposed that case property was not tempered until it remains in his custody. He has also not deposed that Excise Form M29 was deposited into Malakhana alongwith case property.
10. Seal was not handed over to any independent public witness but same was handed over to the member of the raiding party, i.e., Ct. Hari Singh.
11. Chapter 22, Rule 49 of Punjab Police Rules, 1934 provides as under : "22.49 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 Page no. 9 of 11 St. vs. Urmila; FIR No. 351/2003 10 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 or the officer concerned and shall be attested by the latter personally by signature or seal".
In the present case, the abovesaid provision appears to have not been complied with by the prosecution. The DD entry vide which recovery witnesses had left the police station has not been produced on record. Even the number of said DD entries made in register no. II, if any, has not been brought on judicial record. In my opinion, at least in the facts and circumstances of the case, said DD entries vide which recovery witnesses had left the police station must have been produced, so as to prove the possibility of said police officials reaching at the spot.
12. As per the version of the prosecution, accused was in possession of illicit liquor without any licence or permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where knife was arranged for by the accused. Atleast some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the button operated knife. Hence, prosecution has failed to prove that accused was found in possession of knife beyond reasonable doubts. Page no. 10 of 11 St. vs. Urmila; FIR No. 351/2003 11
13. IO SI Mahesh Yadav himself has stated in his cross examination that no alteration was done on the documents which was prepared before the registration of FIR. It has come in the evidence of SI Mahesh Yadav that document, i.e., seizure memo Ex. PW2/A was prepared before registration of FIR. But FIR number has been mentioned on the document. The prosecution has not given any explanation as to how the FIR No. had come on the abovesaid document. Form M29 was filled by the IO in single copy only and not in triplicate.
14. As per PW2 Lady Ct. Yogita, she conducted the personal search of the accused, being a lady. But personal search memo Ex. PW2/DX1 does not bears her signature.
15. In light of discussions made above, I am of the opinion that prosecution has failed to prove the charge under section 61 of the Act beyond reasonable doubts and accordingly, accused is acquitted for the offence under section 61 of the Act.
Announced in the open court (Sanjeev Kumar) On 17th Day of September, 2012 Metropolitan MagistrateI (East) (total eleven pages) Karkardooma Courts, Delhi Page no. 11 of 11 St. vs. Urmila; FIR No. 351/2003