Delhi District Court
State vs Nitin Hingo Rani ("Acquitted") Page 1 Of ... on 30 May, 2011
FIR No.: 102/2003: U/s 61/1/14 Pb. Excise Act: PS Special Cell DOD: 30.05.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 102/2003 PS: Special Cell U/s 61/1/14 Punjab Excise Act Unique ID No.: 02401R5239622004 J U D G M E N T:
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(a) S. No. of the case : 2/3
(b) Name of complainant : ASI Anil Tyagi, No.501/SB, Special Cell NDR, Lodhi Colony, New Delhi.
(c) Date of commission of offence : 29.11.2003
(d) Name of the accused : Nitin Hingo Rani,
S/o Late Shri Manohar Lal
Hingorani,
R/o H.No.A2/83, Ground Floor,
Rajouri Garden, New Delhi.
(e) Offence complained of : U/s 61/1/14 Punjab Excise Act
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 30.05.2011
(h) Final Order : Acquitted
(i) Date of such order : 30.05.2011
______________________________________________________________ State V/s Nitin Hingo Rani ("Acquitted") Page 1 of 10 FIR No.: 102/2003: U/s 61/1/14 Pb. Excise Act: PS Special Cell DOD: 30.05.2011 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
Briefly stated the facts of the case are that accused Nitin Hingo Rani, S/o Late Shri Manohar Lal Hingorani is facing trial in the present case on the allegations that on 29.11.2003, at about 2.30 AM, at right front bedroom of H.No.8/83, ground floor, Rajouri Garden, New Delhi, within the jurisdiction of PS Special Cell, he was found in possession of 14 boxes of illicit liquor (out of which 9 boxes were of Whyte Hall and 5 of Mogul Monarch liquor and each box containing 12 bottles) and further 72 bottles of illicit liquor, in contravention of the provisions of Punjab Excise Act and thus committed an offence punishable under section 61/1/14 Punjab Excise Act.
Detail of Court Proceedings:
2. After completion of investigation, the accused stood chargesheeted for offence punishable U/s 61/1/14 Punjab Excise Act.
3. After filing of the charge sheet in the case, accused was supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments on charge, vide order dated 12.03.2008, charge U/s 61/1/14 Punjab Excise Act was framed against the accused, to which he pleaded not guilty and claimed trial.
State V/s Nitin Hingo Rani ("Acquitted") Page 2 of 10
FIR No.: 102/2003: U/s 61/1/14 Pb. Excise Act: PS Special Cell DOD: 30.05.2011
4. In order to bring home the guilt of accused, prosecution examined six witnesses, whereafter the PE in the matter was closed and statement of accused U/s 281 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case. He further stated that he does not wish to lead any defence evidence in the matter.
Evidence Held:
5. A total of six witnesses were examined by the prosecution in support of its case. A brief scrutiny of the evidence recorded in the matter is as under.
6. PW1, Shri Kewal Gupta, the public witness cited by the prosecution, in his evidence has turned completely hostile and has not at all supported the case of prosecution. He was thoroughly crossexamined by the learned APP. In his crossexamination, he denied the suggestion of prosecution that accused Nitin was occupant of H.No.A2/83, Rajouri Garden, Delhi. He further denied the suggestion that he had ever joined the raiding party with the police in the present case. This witness admitted his signatures on Seizure Memo Ex.PW1/A, however, he clarified that the contents of the same were not read over to him before taking his signatures by the police on the said document and the same were not within his knowledge. This witness further denied the suggestion of prosecution that photographs of the site from where recovery was effected were taken by the police. State V/s Nitin Hingo Rani ("Acquitted") Page 3 of 10 FIR No.: 102/2003: U/s 61/1/14 Pb. Excise Act: PS Special Cell DOD: 30.05.2011
7. PW2, Shri Surender Kumar, another public witness cited by the prosecution in his evidence has stated that accused was residing at A2/83, Rajouri Garden, Delhi. He further stated that on the request of some police officials, he joined the investigation of the present case, however, no recovery was effected in his presence. This witness also turned hostile to the prosecution case and was thoroughly crossexamined by the learned APP. In his crossexamination, he stated that accused Nitin was occupant of H.No.A2/83, Rajouri Garden, Delhi, however, he denied the suggestion of prosecution that police had informed him regarding possession of huge quantity of liquor by the accused. He further denied the suggestion of prosecution that he ever joined the investigation in the present case. He further denied the suggestion of prosecution that photographs of the bedroom of H.No.A2/83, Rajouri Garden, Delhi, where recovery of alleged liquor was effected were taken by the police. This witness was also cross examined by the learned defence counsel. In his crossexamination by learned defence counsel, this witness stated that the occupants of all the three floors of H.No.A2/83, Rajouri Garden are different persons and the boxes which were seized by the police were lying on road. He further stated that police obtained his signatures on blank papers.
8. PW3, HC Mahavir Singh was posted as Duty Officer in PS Special Cell at the relevant time and he has proved case FIR in the matter as Ex.PW3/A and the endorsement made upon the rukka as Ex.PW3/B. State V/s Nitin Hingo Rani ("Acquitted") Page 4 of 10 FIR No.: 102/2003: U/s 61/1/14 Pb. Excise Act: PS Special Cell DOD: 30.05.2011
9. PW4, ASI Prahlad in his evidence has stated that on 04.12.2003 on the directions of IO, he had deposited two sealed petti and one taat bori alongwith Form M29 at Vikas Bhawan, ITO vide RC No.90/21 and after deposition of the same, he handed over the receipt of RC to MHC(M). He further stated that till the time case property remained in his custody, it was not tempered with.
10. PW5, SI Bhoop Singh in his evidence has stated that on 29.11.2003, the investigation of the present case was marked to him and he prepared site plan Ex.PW5/A at the instance of first IO. He further stated that on 03.12.2003, he arrested the accused and conducted his personal search vide Ex.PW5/B and Ex.PW5/C and sample was sent to excise lab through HC Prahlad.
11. PW6, ASI Anil Tyagi, the first IO of the case in his evidence stated that on 28.11.2003, he received a secret information that occupant of H.No.A2/83, ground floor, Rajouri Garden had collected illegal liquor for supplying in the election campaign. He discussed the said information with senior officers and reduced the same into writing vide Ex.PW6/A and a raiding party was constituted in the supervision of Inspector Hriday Bhushan, comprising of members namely SI Sanjay Dutt, SI Mehtab, ASI Bhup Singh, ASI Sanjeev Lochan, HC Jagdish and himself. He further stated that at about 8.20 PM they left the office and reached at Sagar Ratna Restaurant, Rajouri State V/s Nitin Hingo Rani ("Acquitted") Page 5 of 10 FIR No.: 102/2003: U/s 61/1/14 Pb. Excise Act: PS Special Cell DOD: 30.05.2011 Garden and asked 45 passers by to join the raiding party, but none agreed and left the spot without disclosing their names and addresses. He further stated that at about 10 PM, he checked the aforesaid address and same was found locked. In the meanwhile, he observed some movement from inside the house and tried to open the same, but in vain. Thereafter, he asked the neighbours, out of which one Shri Kewal Gupta and Shri Surender Kumar gave their consent to join the investigation. At about 2.30 AM, they broke open the right hand side grill of the premises and found one girl, who introduced herself as maid of accused. He further stated that on checking the house, nine petties of Whyte Hall, five petties of Mughal Monarch (each petti was containing 12 bottles) and further 72 bottles of Mughal Monarch were recovered. He further stated that he took out one bottle each from each petti and 12 bottles from 72 bottles as sample and sample property and case property were seized and sealed with the seal of HB. He further stated that Form Excise was filled vide Ex.PW1/A and seal after use was handed over to ASI Bhoop Singh. He further stated that thereafter he prepared rukka and got the case FIR registered through ASI Bhoop Singh. This witness identified the photographs of the bottles of liquor as Ex.P1 to Ex.P14. He has further proved on record DD No.16 as Ex.PW1/C. This witness further identified the case property in court as Ex.P1 to Ex.P214. This witness was thoroughly crossexamined by the learned defence counsel. In his crossexamination, this witness stated that broken grill was not taken into possession and he did not record the statement of maid, who was found present at the spot at State V/s Nitin Hingo Rani ("Acquitted") Page 6 of 10 FIR No.: 102/2003: U/s 61/1/14 Pb. Excise Act: PS Special Cell DOD: 30.05.2011 the time of seizure of liquor. He further stated in his crossexamination that he did not make any enquiry regarding occupants of the first floor of that house; neither he collected any documents w.r.t ownership of that house. This witness further stated in his crossexamination that the seal of HB belongs to Inspector Hriday Bhushan, who has not been cited as witness in this case.
12. This is all as far as prosecution evidence in the matter is concerned.
13. Thereafter, the statement of accused U/s 281 Cr.P.C was recorded, wherein accused denied the evidence adduced against him and stated that he has been falsely implicated in this case. No defence evidence was led by the accused.
14. I have heard arguments advanced at bar by the learned defence counsel, Shri Chander M. Maini, advocate as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
Arguments advanced & Case law cited:
15. The learned defence counsel has very vehemently argued that the case of prosecution rests entirely upon the testimony of police witnesses and the two independent/public witnesses cited by the prosecution, i.e PW1 Shri Kewal Gupta and PW2 Shri Surender Kumar have not supported the case of prosecution, thereby giving an indication that they are planted witness. State V/s Nitin Hingo Rani ("Acquitted") Page 7 of 10 FIR No.: 102/2003: U/s 61/1/14 Pb. Excise Act: PS Special Cell DOD: 30.05.2011
16. It is further argued that the official, who had taken the sample to Excise Office vide Road Certificate, but the said road certificate has not been proved on record. In this regard, the ld defence counsel has placed reliance upon the judgment of our own hon'ble high Court in case reported as 1994 "drugs cases page 154, titled as "Ghanshyam v/s State", wherein Hon'ble Court has held that:
"If Road Certificate (RC) vide which the sample was token to the laboratory for examination is not produced in court, then that causes sufficient doubt to the prosecution story and it breaks the important link in the prosecution cases."
On the other hand, learned APP has argued that the said judgment is in the cases of NDPS, where the provisions are stringent and the punishment is harsh and the accused is entitled for benefit of doubt even for slightest lapse on the part of prosecution and the said judgment is not applicable in the cases of excise. I have considered the rival arguments and have carefully gone through the said judgment. I do not accept the argument of ld. APP that the said judgment is applicable only to the cases of NDPS. In my opinion, the said judgment is applicable to those cases where sample in sealed cover is sent for chemical examination/CFSL examination because the safe custody of sample is very material for any case because of which the prosecution normally proves the result of excise/CFSL. If the safe custody of sample itself is not proved, then the sample cannot be stated to have been taken in an untempered condition. Road Certificate is the important document which has to be proved on record by the prosecution which the prosecution has admittedly not proved in this case.
State V/s Nitin Hingo Rani ("Acquitted") Page 8 of 10 FIR No.: 102/2003: U/s 61/1/14 Pb. Excise Act: PS Special Cell DOD: 30.05.2011
17. It is further argued by the learned defence counsel that even the "Excise Result" has not been proved not record. In this regard, the learned defence counsel has relied upon the observations made in case reported as, "72 (1999) DLT 435", titled as, "Sunil V/s State", wherein Hon'ble High Court has been pleased to hold as as under:
"For want of proof of Analyst's Report, it cannot be presumed that what was recovered from the accused was liquor".
18. The prosecution has miserably failed in proving the fact that the alleged liquor was recovered from the possession of accused, as both the independent witnesses, i.e PW1 and PW2 have stated that the alleged liquor was lying outside the H.No.A2/83. The IO, i.e PW6 ASI Anil Tyagi in his evidence categorically admitted that he did not make any endeavour to ascertain as to whether accused was the occupant of the said house. The IO further failed to prove that why he did not use his own seal in sealing the case property and used the seal of HB, belonging to Inspector Hriday Bhushan. The cases, where the possession of a very thing/article entails penal consequences, then the liability of prosecution becomes all the more onerous to prove the possession of that particular commodity/article by the accused through cogent documentation, which is not there in this case. State V/s Nitin Hingo Rani ("Acquitted") Page 9 of 10 FIR No.: 102/2003: U/s 61/1/14 Pb. Excise Act: PS Special Cell DOD: 30.05.2011 Court View & Final Decision:
19. In this case, the IO was having prior information regarding the accused, but despite that it appears that no sincere effort has been made by him to conduct the investigation properly.
20. In view of the above discussion, I am of the considered opinion, that the prosecution has not been able to prove the charges against the accused beyond the shadow of doubt. The accused is accordingly entitled for acquittal. I order accordingly. His B/B stands cancelled, surety stands discharged. Endorsement(s), if any, either on the documents of surety or of accused be cancelled forthwith. Original documents, if any, either of accused or of surety be returned to its rightful owner fortwith. Case property be confiscated to State. File be consigned to record room after completion of necessary formalities.
Announced in the open court (Vinod Yadav)
on 30.05.2011 Chief Metropolitan Magistrate:
Delhi
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