Delhi District Court
State vs . Shashi @ Raju on 23 February, 2013
IN THE COURT OF MS CHETNA SINGH METROPOLITAN
MAGISTRATE-02 (SOUTH) NEW DELHI
STATE Vs. Shashi @ Raju
FIR NO. 504/02
U/s : 61/1/14 Punjab Excise Act
P.S. : Malviya Nagar
Date of Institution : 07.04.2003
Date on which case reserved for Judgment : 23.02.2013
8.Date of judgment : 23.02.2013
JUDGMENT
1.Sl No. of the case : 50/03
2.Date of the Commission : 08.06.2002
of the offence
3.Name of the accused : Shashi @ Raju s/o Sh. Om Prakash
: Mandela R/o H. No. 823, Gali no. 8,
: Block-I, Shani Bazar, Sangam Vihar,
: New Delhi
4.Name of the complainant : ASI Babu Khan, No. 2519-D
5.Offence complained of : 61/1/14 Excise Act
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
FIR No. 504/02 State Vs. Shashi @ Raju 1/7
BRIEF FACTS
The story of the prosecution is that on 08.06.2002 at about 10.45 A.M. at M.B. Road, T point opposite Ashok Market, New Delhi, falling within the jurisdiction of Police Station Malviya Nagar, the accused Shashi @ Raju was found in possession of 20 cartons of illicit liquor in a car bearing no. DL-3CS-4476 and thereby he committed an offence punishable under section 61 of the Excise Act.
On the basis of the said statement of the complainant ASI Babu Khan an FIR bearing number 504/09 was lodged at Police Station Malviya Nagar.
After investigation, chargesheet under section 173 Cr.P.C was filed on 07.04.2003.
On the basis of the chargesheet, a charge for the offence punishable under section 61 Excise Act was framed against the accused Shashi @ Raju and read out to the said accused person, to which the accused person pleaded not guilty and claimed trial on 29.04.2010.
Appreciation of Evidence In order to prove the above said allegations against the accused, the prosecution has examined following witnesses.
PW-1 HC Veer Sen was examined on 01.06.2011 and he was posted at PS Malviya Nagar. He deposed that on 24.07.2002 sample of the present case was sent to Excise Lab through Ct. Vijender vide RC no. 107/02. The copy of register no. 19 is Ex. PW-1/A. This witness was cross examined by the Ld. defence counsel wherein he denied the suggestion that false entries have been made to implicate the accused falsely in this case.
FIR No. 504/02 State Vs. Shashi @ Raju 2/7 PW-2 WASI Usha Rani was examined on 01.06.2011 who is a formal witness and proved the copy of FIR Ex. PW-2/A and her endorsement on the rukka Ex. PW-2/B. This witness was cross examined by the Ld. defence counsel wherein he denied the suggestion that false FIR have been made to implicate the accused falsely in this case.
PW-3 Retired SI Babu Khan was examined on 22.10.2011 and deposed that on 08.06.2002, he was posted at PP Pushp Vihar in PS- Malviya Nagar and on that day at about 9.30pm on receipt of DD no. 5 regarding quarrel he along with Ct. Ajeet reached at M.B. Road in front of Asian Market where one secret information was received through secret informer that one Santro car bearing no. DL-3CS-4476 of grey colour would be coming from Mehrauli side containing illicit liquor of Haryana. He further deposed that request was made to public persons to join the investigation but none of them agreed and left the place without disclosing their names and addresses and due to paucity of time no written notice could be served upon them. He further deposed that they had put barricades at the spot and started checking vehicles. He further deposed that about 10.30pm, one SI Mahender from Excise Department came to the spot with 5 associates and joined the raiding party. He further deposed that at about 10.45pm one Santro car came which was stopped and on checking liquor kept in cartons was found. Driver of the car was apprehended and his name was revealed as Shashi @ Raju. He further deposed that on checking, 10 cartons of Desi Bonny Scott Special Malted Whiskey for Sale in Haryana only was found, each carton contains 40 quarter bottles and 8 petis of Masaledar Desi Sharab contains 50 quarter bottles each of 180ml for sale in Haryana was found and 2 petis of Jalpari FIR No. 504/02 State Vs. Shashi @ Raju 3/7 containing 50 quarter bottles of 180ml for sale in Haryana was found. One quarter bottle was taken out from each petis as sample. Remaining illicit liquor was put into 7 white kattas and sealed with the seal of BK and seized vide Ex. PW-3/B. He further deposed that seal after use was handed over to Ct. Ajeet. Rukka was prepared vide Ex. PW-3/A and case was registered. The car was also seized vide Ex. PW-3/C. Further investigation was carried out by HC Satbir.
This witness was cross examined by Ld. defence counsel wherein he stated that he did not record the secret information in any register in PS as he was out of the PS in relation to DD no. 5 pertaining to quarrel. He further stated that the spot was a public place. He further deposed that he left the spot at about 2pm. His statement was recorded at the spot by 2nd IO at about 2.00pm. He denied the suggestion that nothing was recovered from the possession of the accused or that recovery was planted or that all the documents have been prepared at the PS. PW-4 HC Ram Avtar was examined on 26.06.2012 and deposed that on 08.06.2002, he was posted at Excise Department as HC and on that day he was on patrolling duty along with IO/SI Mahender Kumar Meena, HC Virender and Ct. Jasbir. He further deposed that at about 10.30pm they reached at M.B. Road in front of Asian Market and met SI Babu Khan who was checking the vehicles and they joined him. He further deposed that one Santro car came which was stopped and on checking the same, liquor was found. Driver of the car was apprehended and his name was revealed as Shashi @ Raju. He further deposed that on checking, 10 cartons of Desi Bonny Scott Special Malted Whiskey for Sale in Haryana only was found, each carton contains 40 quarter bottles and 8 petis of Masaledar Desi Sharab contains 50 quarter bottles each of 180ml FIR No. 504/02 State Vs. Shashi @ Raju 4/7 for sale in Haryana was found and 2 petis of Jalpari containing 50 quarter bottles of 180ml for sale in Haryana was found. One quarter bottle was taken out from each petis as sample. Remaining illicit liquor was put into 7 white kattas and sealed with the seal of BS and 20 petis of liquor was seized vide Ex. PW-3/B. He further deposed that seal after use was handed over to Ct. Ajeet. The car was also seized vide Ex. PW-3/C. Thereafter, rukka was prepared and case was registered.
This witness was not cross examined by the accused despite opportunities given.
As all the material witnesses were examined, PE was closed vide order dated 30.01.2013. SA was recorded on 23.02.2013.
Thereafter, final arguments were advanced by Ld. APP for state and Ld. Defence Counsel. Heard. Considered.
The major lacunae in the case of the prosecution is non- examination of public witnesses.
There is no public witness to the recovery, which is essential in such cases where recovery in itself forms the sole ground for conviction of the accused.
JUDICIAL RESOLUTION The IO had sufficient opportunity to join a public witness. It is settled law that failure to join the public witnesses can prove fatal to the case of prosecution. My this view is further fortified by the case titled State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, wherein Hon'ble Supreme Court held:
The failure of the prosecution to examine independent witnesses though available is fatal for their case.
FIR No. 504/02 State Vs. Shashi @ Raju 5/7 In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that:-
Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
The court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 the division bench of Honorable Justices Sh. S.B.Sinha and Sh. Dalveer Bhandari observed:
"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 nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken. 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 its."
FIR No. 504/02 State Vs. Shashi @ Raju 6/7 An adverse inference, therefore, could be drawn for non-examination of material witnesses." (emphasis supplied) REASONS FOR DECISION In absence of a public witness to the recovery and also in absence of an explanation as to why a public person was not joined in the raiding party, the prosecution has failed to prove the recovery of the illicit liquor from the accused beyond reasonable doubt.
In the light of the above discussion, accused Shashi @ Raju is acquitted.
Previous bail bond in compliance of section 437-A Cr.P.C. to remain in force for a period of 6 month from today. File be consigned to record room.
ANNOUNCED IN OPEN COURT
ON 23.02.2013 (CHETNA SINGH)
MM-02(South)/23.02.2013
Certified that this judgment contains 7 pages and each page bears my signatures.
(CHETNA SINGH)
MM-02(South)/23.02.2013
FIR No. 504/02 State Vs. Shashi @ Raju 7/7