Delhi District Court
State vs . on 1 September, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR METROPOLITAN
MAGISTRATE1 (EAST) KARKARDOOMA COURTS, DELHI
In the matter of:
State
Vs.
Juber @ Guddu
FIR NO. 290/2003
P.S. Gandhi Nagar
JUDGMENT
1. Sr. No. of the case : 15/03
2. Date of institution : 23.02.2004
3. Name of the complainant : Ct. Pavender Kumar
4. Date of commission of offence : 16.10.2003 and 11.02.2010
5. Name of accused : Juber @ Guddu
S/o. Sh. Kamar Khan
R/o. Village Mukandpur,
PS Samaypur, Badali
Delhi
6. Offence complained of : Section 61 of the Punjab
Excise Act, 1914 and 174A IPC
7. Plea of guilt : Accused pleaded not guilty
8. Date of reserving the Judgment : 13.08.2012
9. Final order : Acquitted u/s. 61 Excise Act
& Convicted u/s. 174A IPC
10. Date of such Judgment : 01.09.2012
Page no. 1 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03
2
1. The case of the prosecution is that on 16.10.2003, accused Juber @ Guddu was found in possession of one plastic bag containing 65 quarter bottles of liquor at about 7.00 pm at Thokar No. 17, Pusta Road, Gandhi Nagar, Delhi. First Information Report (in short 'FIR') No. 290/03 under section 61 Punjab Excise Act, 1914 (in short 'the Act') was registered at Police Station Gandhi 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 . During trial accused was remained absent and therefore, NBW was issued against him and thereafter, process under section82 Cr.P.C. was issued against him. Despite that accused could not appear in the court in stipulated time and therefore, he was declared as proclaimed offender and supplementary challan under section 174A IPC was also filed against the accused.
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 30.11.2011, finding a prima facie case, Sh. Vivek Kumar Gulia, the then Learned MM Gandhi Nagar, framed charge for the offence punishable under section 61 of the Act, to which the accused pleaded not guilty and claimed trial and vide order dated 21.02.2012, this court has also framed charge against the Page no. 2 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 3 accused for the offence under section 174A IPC for which he plead not guilty and claim trial.
3. For proving its case, the prosecution has produced seven witnesses.
3A. PW1, HC Madan Lal, mentioned that on 17.11.2003, he collected the sealed exhibits, i.e., two quarter bottles from the MHC(M) through RC No. 99/21 in sealed condition and deposited the same at Excise Office, ITO and after coming back he handed over the copy of RC to MHC(M).
3B. PW2, Ct. Pavinder Kumar, mentioned that on 16.11.2003, he was on patrolling duty and when he reached at Thokar No. 17, Pusta Road, Gandhi Nagar, Delhi, he saw that one person was standing at thokar no. 17 who is having a plastic bag. On seeing him, he tried to escape. On suspicion, he chased and apprehended him and after checking the abovesaid bag, he found that there was 65 quarter bottles of bony scot. He informed this information at PS and after sometime ASI Pandurang (IO) reached at the spot. He handed over the accused and case property to IO. Thereafter, IO recorded his statement Ex. PW2/A and gave mark to every quarter bottle as 12365. Bottle no. 1 and 65 were taken out as a sample from recovered quarter bottles and sealed the sample and remaining liquor with the seal of PR. Form M29 was also filled up by IO at the spot. Thereafter IO prepared recovery memo Page no. 3 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 4 of recovered liquor Ex. PW2/B. Thereafter IO prepared the rukka and handed over to him for the registration of FIR. He went to PS for the registration of FIR and after sometime came back at the spot and handed over the copy of FIR and original rukka to IO. Site plan was prepared by IO Ex. PW2/C at his instance. Thereafter, accused was arrested and personally searched vide memo Ex.PW2/D & Ex.PW2/E respectively. Further, witness identified the accused and quarter bottles having serial No. 2 to 64 Ex. P1 (collectively) in the Court. 3C. PW3, HC Om Parkash, mentioned that on 16.10.2003, case property of the present case alongwith excise from and sample were deposited into Malkahana by the IO and same was mentioned in register no. 19. Copy of the same is Ex. PW3/A. 3D. PW4, HC Lakhi Singh, proved the present FIR Ex. PW4/A. 3E. PW5, SI Pandu Rang, mentioned that on 16.10.2003, after receiving DD No. 23A, he went to the spot, i.e., thokar no. 17, Pusta Road, Gandhi Nagar, Delhi, where Ct. Pavinder Kumar met and handed over the accused and recovered plastic bag containing 65 quarters bottles to him. Further he deposed on the lines of PW2. Apart from that he mentioned that he filled the form M29 at the spot Ex. PW5/A. On 17.11.2003, samples were sent to Excise Office through Ct. Madanpal through RC No. 99/21. Further, witness identified the accused and quarter bottles having serial No. 2 to 64 Ex. P1 (collectively) in the Court.
Page no. 4 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 5 3F. PW6, HC Surender, mentioned that on 10.01.2012, he executed the process under section 82 Cr.P.C. against the accused Juber @ Guddu and report of the same is Ex. A. 3G. PW7, SI Amit Partap, mentioned that on 20.08.2011, on the directions of the SHO PS Gandhi Nagar, he prepared the supplementary challan under section 174A IPC against the accused and filed the same before this court.
4. Statement of accused was recorded under section 313 Cr. P.C. When accused was briefed on all the incriminating evidence and documents, he denied the allegations and mentioned that he has been falsely implicated in this case. Further he stated that he was in custody in some other case and therefore, he could not appeared before this court and he has himself filed application of his production warrant . However, he opted to lead evidence in his defence but no witness was examined by accused to prove his defence.
5. I have heard the State through Sh. M. A. Khan, Learned Assistant Public Prosecutor and Sh. Dinesh Yaduwanshi, Learned counsel for accused from DLSA. 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 Page no. 5 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 6 accused and case property in their respective evidence and there is no 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, thereby pushing the case in the shadow of doubts. It is further submitted that due to demolition of zhuggi's accused started residing at Bawana and could not appear before the court in the present case and he was in custody in some other case during the relevant period.
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 Page no. 6 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 7 police persons only and no independent witness to the incident is examined by the prosecution, it becomes necessary to exercise a greater caution.
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. Page no. 7 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 8 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.
In Ratan Lal Vs. State, 1987 (2) Crimes 29 , it was held:
"...................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, Page no. 8 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 9 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 occurance. But, not only no such attempt was made, even 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 Page no. 9 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 10 witnesses did not call any local resident/shopkeepers to join the investigation.
8. As per PW1 HC Madan Lal, he on 17.11.2003 collected exhibits (2 quarter bottles of bonne scotch) of the present case from MCH(M) HC Om Parkash in sealed condition and same was deposited at Excise Office. This witness has not stated that he had collected the excise form also from the MHC(M) and same was deposited to Excise Laboratory.
9. As per PW2 he informed to police station about the incident and after sometime, IO ASI Pandu Ram reached at the spot. As per said IO, on 16.10.2003, on receiving DD NO. 23A, he went to the spot. It is not clear as to which mode PW2 had informed to the police station about the incident. Said DD entry has also not been produced and proved on record.
10. As per MHC(M), Ct. Om Parkash case property remained into custody from 16.10.2003 to 17.11.2003 but he has not deposed that case property including samples were not tempered until it remained in his custody.
11. PW5 IO ASI Pandu Ram has deposed that recovered Page no. 10 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 11 liquor/case property was handed over to him by Ct. Pawinder and same was deposited into Malakhana bue he did not depose that case property including samples were not tempered until it remained in his custody.
12. 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 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.
Page no. 11 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 12
13. As per the version of the prosecution, accused was in possession of one plastic bag containing 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.
14. Now, I have to consider the charge under section 174A IPC. In respect of this offence prosecution has examined two witnesses namely HC Surender (PW6) and SI Amit Partap (PW7). It is observed that during the trial of the present case accused remained absent and therefore, NBW were issued against him and thereafter, on 08.10.2009 process under section 82 Cr.P.C. was issued against him. Said process was published by HC Surender (PW6) but accused did not appear on the next date of hearing, i.e., 11.02.2010 and therefore, after recording statement of process server (PW6), accused was declared vide order dated 12.04.2010 that proclamation was duly published and therefore, accused was declared as proclaimed offender. PW7 SI Amit Partap has proved supplementary challan under section 174A IPC. Accused in his Page no. 12 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 13 statement under section 313 Cr.P.C. has mentioned that he was in custody in some other case and therefore, he could not appear before the court during the trial. Accused has not examined any witness in his defence to show that he was in custody in some other case during the relevant period when he was absent in the present case. Hence, it has been proved on record that accused failed to appear at the specified place and the specified time as required by a proclamation published under sub section (1) of Section 82 of the Code of Criminal Procedure, 1973.
15. In light of discussions made above, I am of the opinion that prosecution has failed to prove the charge under section 61 Excise of the Act beyond reasonable doubts and accordingly, accused is acquitted for the offence under section 61 Excise Act but has proved the charge under section under section 174A IPC and therefore, accused is convicted for the offence under section 174A IPC.
Announced in the open court (Sanjeev Kumar) On 01st September, 2012 Metropolitan MagistrateI (East) (total thirteen pages) Karkardooma Courts, Delhi Page no. 13 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03 14 FIR No. 290/2003 PS : Gandhi Nagar U/s. 61 Excise Act & 174A IPC 06.09.2012. ORDER ON THE POINT OF SENTENCE Present: Ld. APP for the State.
Accused/convict produced from JC with Sh. Dinesh Yaduwanshi, Ld. Counsel for accused from DLSA.
Heard on the point of sentence. It is urged by Ld. APP for State that maximum sentence may be awarded to accused/convict On the other hand, it is stated by Ld. counsel for convict that convict is the first offender and is the only bread winner and earner of his family, therefore, lenient view may kindly be taken.
The convict remained in judicial custody from 20.08.2011 till today. Keeping in view the facts and circumstances, convict is sentenced to imprisonment for the period already undergone by him.
Copy of judgment and order on sentence supplied to convict free of cost.
File be consigned to Record Room.
Announced in the open court ( Sanjeev Kumar )
th
On 06 September, 2012 Metropolitan Magistrate1 (East )
Karkardooma Courts,Delhi.
Page no. 14 of 13 St. vs. Juber @ Guddu ; FIR No. 290/03