Delhi District Court
Giving Notice. In The Case Of Pawan Kumar vs . The Delhi Administration, 1989 on 17 April, 2015
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
FIR No. : 278/10
P.S. : Aman Vihar
Unique ID No. : 02404R0367162011
State
Vs.
Surali
S/o Gulab Singh
R/o 44, Prem Nagar Iind, Block Y 2,
Suleman Nagar, Delhi.
Date of institution of case : 10.01.2011
Date of reserving the judgment : 08.04.2015
Date of pronouncement of judgment : 17.04.2015
JUDGMENT
1. S. No. of the Case: 1178/2/11 2. Date of Commission of Offence: 13.09.2010 3. Date of institution of the case: 10.01.2011 4. Name of the complainant: Ct. Prashant 5. Name of the accused: Surali 6. Offence complained or proved: 61/1/14 Punjab Excise Act 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 17.04.2015 FIR No. 278/10 PS Aman Vihar Page 1 of 11 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Succinctly, the facts of the case as per prosecution are that on 13.09.2010 at about 9.30 p.m. at Sukhi Nehar near Mubarak Pur Road, Prem Nagar-II, Delhi, accused Surali was found in possession of one white colour plastic katta containing 198 quarters of Raseela Santra Desi Sharab printed with labels for sale in Delhi. without any licence or permit. Accused was arrested, case property was deposited in malkhana and upon completion of investigation, challan was prepared and filed in court for trial.
2. The copies of charge sheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C.
3. Prima facie case having been made out, charge for offence U/s 61/1/14 of Punjab Excise Act was framed against the accused on 27.03.2012 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined the following witnesses:-
PW-1 HC Balwan Singh deposed that on 13.9.2010 he was posted in PS Aman Vihar as duty officer with duty hours from 4:00pm to 12:00night and on FIR No. 278/10 PS Aman Vihar Page 2 of 11 that day at about 11:0pm he received rukka through Ct. Prashant sent by HC Atar Singh. On the basis of the same he recorded FIR in the present case. A print out of FIR No. 278/2010 was obtained and handed over to Ct. Prashant and another print out was retained to be tagged in FIR register maintained as per Rules. The print out of the FIR (3 pages) is Ex. PW 1/A is the same which was got registered by him in the present case on the basis of the information fed into the computer which was being used for similar purposes in routine and was under his lawful control. He further certified that nothing abnormal took place during that period to affect the accuracy and correctness of the information fed into the computer. Endorsement upon rukka is Ex. PW 1/B. PW-2 Ct. Prashant deposed that on 13.9.2010 he was on patrolling duty at beat No. 10. At about 9:30pm when he reached at near Sukhi Nehar, Mubarakpur Road, he noticed that one person was coming from the side of Devender Public School with a plastic katta. Upon noticing him in police uniform that person turned back. On suspicion he apprehended the accused and checked the plastic katta and it found to contain quarters of illicit liquor. He immediately gave information to police post and HC Attar Singh reached at the spot and he handed FIR No. 278/10 PS Aman Vihar Page 3 of 11 over accused alongwith recovered liquor to him. IO recorded his statement which is Ex. PW 2/A PW-3 HC Attar Singh deposed that on 13.09.2010 he received the D.D entry no. 25 PP. He went to the spot i.e Sukhi Nehar where he met Ct. Parshant, who handed over to him the accused Surali and the illicit liquor which was recovered from the possession of the accused. The illicit liquor consisted of 198 quarter bottles carried in a bag. He recorded the statement of Ct. Parshant Ex. PW- 2/A upon which he prepared the Tehrir Ex. PW 3/B and handed over the same to Ct. Parshant. He got the FIR registered and came back to spot and handed over the copy of FIR and original rukka. After that he filled the Form no. M-29 Ex. PW 3/A. Four quarters bottles were taken out as a sample and tied with white cloth alongwith mouth of the bag and both sample bottle and bag seal with the seal of AS. Seal after use handed over to Ct. Parshant. He seized the case property vide seizure memo Ex. PW -2/B. Accused was arrested and personally searched vide memo Ex. PW 2/C & Ex PW- 2/D. Accused was released on police bail. Case property was taken to the PS and deposited in Maal Khana. Later on sample were sent to the excise lab through Ct. Parshant. Later on he collected the report from FIR No. 278/10 PS Aman Vihar Page 4 of 11 excise lab Ex. PW -3/C and place the same on record. Then he concluded the charge-sheet and filed the same for judicial verdict.
5. Prosecution evidence was closed on 27.11.2014 as all the material witnesses have been examined. Thereafter, accused was examined U/s 281 R/w Section 313 Cr.P.C on 10.12.2014 wherein he denied all the incriminating material against him which has come on record and claimed false implication. He opted not to lead defence evidence.
6. This court heard the final arguments and perused the judicial record.
7. In the present case, it is the case of the prosecution that on 13.09.2010 at about 9.30 p.m. at Sukhi Nehar near Mubarak Pur Road, Prem Nagar-II, Delhi , accused Surali was found in possession of one white colour plastic katta containing 198 quarters of Raseela Santra Desi Sharab printed with labels for sale in Delhi without any licence or permit
8. Evidently, no public witness to the recovery of the liquor has been cited in the list of witnesses. The place of recovery was Sukhi Nehar near Mubarak Pur Road, Prem Nagar-II, Delhi. No sincere efforts by the IO are seen on the file for non-joining the public witnesses. It is well settled proposition that non joining of FIR No. 278/10 PS Aman Vihar Page 5 of 11 public witness shrouds doubt over the fairness of the investigation by police. Even Section 100 (4) CrPC casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. The police officer is entrusted with ample power under the provisions of Cr.P.C. to initiate proceedings u/s 187 IPC if any person does not cooperate with him despite giving notice. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under :
"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 witnesses or 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 witnesses in 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 FIR No. 278/10 PS Aman Vihar Page 6 of 11 throwing doubt on the arrest or the recovery of the knife from the person of the accused."
9. Ld APP for state has argued that mere non joining of public witnesses is not fatal for the prosecution case and has relied upon the judgment of Appabhai and another v State of Gujrat, AIR 1988 SC 696, wherein it was held that the prosecution case cannot be thrown out or doubted on the sole ground of non production of public witnesses, as the public witnesses keep themselves away from the court unless it is inevitable. The contention of Ld. APP is acceptable to that extent the mere non joining of public witness is not sufficient for acquitting the accused. However, every case has to be dealt with in accordance with the material available on record. In the present case, it is not only the absence of public witnesses which only raises doubt on the prosecution but there are other circumstances also which are discussed in the later part of the dicta, which raises suspicion over the prosecution version and it is well settled dogma that every accused is presumed to be innocent and is entitled to benefit of any doubt in prosecution story. Ld APP has also argued that no notice can be given by the police officials to the public witnesses u/s 187 IPC as it only relates to Section 37 Cr.P.C, where only the persons specified are bound to assist the police. This court FIR No. 278/10 PS Aman Vihar Page 7 of 11 does not agree with the said contention of Ld APP, the police official can ask any public person to assist him and can give notice to him and on unreasonable omission, the person can be prosecuted. There is no bar that such notice cannot be given by police officials to the public persons. Section 187 IPC provides for punishment of persons who are bound by law to assist public servant, intentionally omits to do so. The contention of Ld APP is that only persons u/s 37 Cr.P.C are bound by law to assist police officials and no other. This contention is in my view totally merit less. All public persons are bound to assist police officials in discharge of their duties. S. 65 of Delhi Police Act, 1978 reads as follows:
"Section 65. Persons bound to comply with the reasonable directions of police officer.-
All persons shall be bound to comply with the reasonable directions given by a police officer in the discharge of his duties under this Act. Where any person resists, refuses or fails to comply with any direction referred to in sub-section (1), a police officer may, without prejudice to any other action that he may take under any other provision of this Act or any other law for the time being in force remove such person and either produce him before a Metropolitan Magistrate or, in trivial cases, release him when the occasion which necessitated the removal has FIR No. 278/10 PS Aman Vihar Page 8 of 11 ceased to exist: Provided that the person so removed shall in all cases be produced before the Metropolitan Magistrate or released, as the case may be, within a period of twenty-four hours of such removal."
The contravention of Section 65 also entails a punishment as prescribed for in S. 119 of Delhi Police Act, 1978. Thus, this court is unable to accept that the ambit of S.187 is limited to S.37 Cr.P.C and no more.
10. The present case totally rests upon the alleged recovery of the case property from the possession of the accused at the relevant time. When the public persons were not joined in the investigation, then in such case the arrival and departure entries of the police officials who apprehended the accused with the case property are a vital piece of evidence. The entries are not proved on record. In addition, the police official who apprehended the accused has not been examined by the prosecution. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per the PPR rules. It is apposite at this juncture to reproduce 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:-
FIR No. 278/10 PS Aman Vihar Page 9 of 11
(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 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."
11. Ld. APP has asserted that the accused has not asked any questions relating to the non production of arrival and departure entries and as such the prosecution is not obliged to prove the said entries. In the present case, admittedly, no public witness has joined the investigation and thus it becomes more important and incumbent in the present case that the arrival and departure entries be proved to corroborate the fact of presence of the police personnel on the spot. More specifically, proving of the arrival and departure entry of police personnel who apprehended the accused with case property appears indispensable, as the instant case rests completely on the alleged recovery.
12. It is dogmatic in criminal jurisprudence that the prosecution is under the obligation to prove the case against accused beyond reasonable doubt. The FIR No. 278/10 PS Aman Vihar Page 10 of 11 standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is well settled legal proposition that the benefit of doubt goes in favour of the accused.
13. Considering the facts that - no independent public witness was cited or examined and DD entries not proved, when kept in juxtaposition to each other, shrouds clouds of suspicion over the prosecution version.
14. Thus, this court is of the considered view that the benefit of doubt in the present case be given to the accused and he is entitled to be exonerated of the charges against him in the present case. The accused Surali is hereby acquitted for the offence U/s 61/1/14 Punjab Excise Act. Bail bonds are cancelled. Surety is discharged. Documents, if any be returned after cancellation of endorsement on the same. Case property be confiscated to State as per Rules.
15. File after necessary compliance be consigned to record room Announced in open court (SUSHIL ANUJ TYAGI) 17st day of April 2015 Metropolitan Magistrate, Rohini Courts: Delhi FIR No. 278/10 PS Aman Vihar Page 11 of 11