Delhi District Court
State vs . Chottey Lal. on 15 April, 2010
1.
State Vs. Chottey Lal.
IN THE COURT OF MS. KAVERI BAWEJA : CHIEF METROPOLITAN
MAGISTRATE : DELHI
FIR NO.: 101/1998
P.S.: DBG Road
U/S.: 61/1/14 Punjab Excise Act.
State Vs. Chottey Lal
JUDGMENT
a. Sl. No. of the case : 388/2008
b. Name of the complainant : HC Ramesh Chand
c. Date of commission of
offence : 23.04.1998
d. Name of the accused : Chhotey Lal
S/o Sh. Saran Singh
R/o C-81/48, near Govt. qr.
No. E-164, Dev Nagar, Delhi.
e. Offence complained of : U/s 61/1/14 P.Ex. Act.
f. Plea of accused : Pleaded not guilty
g. Final arguments heard on : April 03, 2010.
g. Final order : Acquitted.
h. Date of such order : April 15, 2010.
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Accused Chhotey Lal S/o Saran Singh was sent up for trial by the SHO P.SDBG Road for the offence u/s 61/1/14 Punjab Excise Act. The brief facts of the prosecution case are that on 23.04.1998 at about 02:55 PM, at DBG Road near DTC booth, Anand Parvat 2. State Vs. Chottey Lal.
terminal, Delhi within the jurisdiction of PS DBG Road, the accused was found in possession of 25 quarters of whisky labelled Boxer without any permit or license. The accused was apprehended, the illicit liquor was seized and after separation of the sample, both the sample as well as the cane were sealed and seized vide appropriate memo, the rukka was prepared on the basis of which the FIR bearing No. 101/19981 was got registered, accused was arrested vide arrest memo and personal search memo, the sample was sent for expert analysis to the Excise Laboratory, the result was procured and after completion of investigation the challan was filed u/s 173(2) Cr.P.C.
2. On appearance, the accused was supplied with the copies of the challan u/s 207 CrPC and since a prima facie case u/s 61/1/14 Punjab Excise Act, was made out against him he was charged for the said offence, to which he pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution examined five PWs in all.
Statement of accused was recorded under section 281 Cr.p.C, wherein he denied the allegations against him and stated that he has been falsely implicated in the instant case. 3.
5. No DE was led by the accused.
6. I have heard the Ld. APP for state and Ld. counsel for the accused and scrutinized the evidence adduced on record by the prosecution.
7. Out of the five PWs examined by the prosecution, PW1, 2 and 5 are all formal witnesses. PW1 H.C Sanjay Kumar proved the FIRas Exh. PW1/A. PW2 Ct. Satyanarian received the sample from the MHCM P.S. DBG Road on 08.06.1998 comprising of a quarter bottle of liquor duly sealed with the seal of RCS, vide RC No. 9/21 and deposited it in the Excise Lab. He further deposed that till the case property remained in his possession, the same was not tempered with. PW5 ShriAnil Kumar Shukla was the Dy. Chemical examiner. He proved the report as Ex PW 5/A. Perusal of the testimonies of the said three PWs shows that they have not deposed anything incriminating against the accused and their testimonies are formal in nature. The two material witnesses examined by the prosecution were PW 3 Const. Rajbir and PW 4 HC Ramesh. Both supported the prosecution case on material particulars, identifying the accused and the case property as Exh.P- 1 to P 23. They also proved the seizure memo vide which the case property was seized as Exh. PW 3/A, the rukka was proved as Exh. 4.
PW4/A, site plan was proved as Ex. PW 4/A, the personal search memo of the accused was proved as Ex. PW 3/B.
8. However, their testimonies were not corroborated by any independent public witness. As regards non-joining of the public witnesses, no explanation has been given by the two official witnessesin their examination in chief, rather they never made any effort to even join the public witnesses. The place of occurance is a busy thorough fare and the time of alleged occurance is about 02:55 PM, when the public persons would have been present in abundance. Why no person was joined from the public in the investigation remained unexplained and on the asking of the defence counsel during the course of cross examination, the averments of PW 3 and PW 4 that none had joined the investigation even though requested orally by the IO remained seems to be only an after thought. The inference is definitely against the prosecution. Since the prosecution case is dependant only on the testimonies of official witnesses, it is necessary to subject their testimonies to a minute and thorough scrutiny, a test of which both the official witnesses were unable to stand.
9. The relevance of non joining of public witness has been discussed in Pawan Kuma r Vs. The Delhi Administration, 1989 5. State Vs. Chottey Lal.
CRLJ 0127 DEL wherein it is held that :
''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 witnessesor 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 witnessesin 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 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.'' 6. State Vs. Chottey Lal.
10. Further, perusal of the cross examination of the two material witnesses PW3 and PW4 shows that there are material contradictions in their testimonies which makes their testimonies quite unreliable. As per PW 4 after the seizure of the case property and separation of the sample it was sealed with the seal of RCS and the seal was handed over to PW 3. Whether the said seal had actually exchanged hands so as to eliminate the chances of any tampering at the behest of the IO is totally negated on the basis of the said contradictions and especially because no such handing over or receiving memo were ever prepared to show the said change of hand of the seal. Furthermore, even the presence of the said two witnessesat the spot is not established, as their departure entries from the PS to show that they were on patrolling duty at that time and thereafter arrived back in the PS alognwith the accused has not been established by placing of the said arrival and departure entries on record.
11. The case property was allegedly deposited by the IO with the MHCM but the MHCM failed to turn up in the witnessbox to depose as to whether any case property was deposited with him by the IO and if so, the date, time and the details of the property deposited with him could not be brought on record. Thereafter, whether the MHCM handed over the sample to PW 2 for depositing the same in Excise Laboratory could 7. State Vs. Chottey Lal.
also not be established and thereby the possibilityof tempering with the case property cannot be eliminated.
12. In the light of my above discussion, I find that the prosecution has failed to prove its case beyond the shadow of reasonable doubt. Accused is therefore, acquitted. His surety is discharged. Bail bond cancelled. Case property is forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
File be consigned to Record Room, after due compliance.
(Kaveri Baweja) Chief Metropolitan Magistrate Delhi Announced in the open court on April 15, 2010.