Delhi District Court
State vs . Santosh on 2 March, 2016
IN THE COURT OF SH. MANISH KHURANA, ACMM
(NORTHDISTRICT) ROHINI COURTS: DELHI
FIR No. 10/2010
Unique Case ID No. 02404R0188612010
Police Station Mukherjee Nagar
Under Section 61/1/14 Excise Act
State Vs. Santosh
JUDGMENT
(a) Serial No. of the case 7/3/29.4.2010
(b) Date of offence 12.1.2010
(c) Complainant Ct. Megraj, No. 1960/NW, PS Mukherjee
Nagar
(d) Accused Santosh, S/o Sh. Ramadin, R/o Jhuggi No.
410, Autram Line, Kingsway Camp, Delhi
(e) Offence 61/1/14 Excise Act
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted for the offence U/s 61/1/14
Excise Act
(h) Date of institution 29.4.2010
(i) Date when judgment 27.2.2016
was reserved
(j) Date of judgment 2.3.2016
FIR No. 10/2010 PS Mukherjee Nagar State Vs. Santosh 1
BRIEF FACTS OF THE CASE:
1. Accused Santosh is facing trial on the allegations of the prosecution that on 12.1.2010, at about 6:40 PM, in front of Sewa Kutir, Delhi, within the jurisdiction of PS Mukherjee Nagar, he was found in possession of 36 bottles of illicit liquor without any permit or licence and in contravention of Notification issued by the Delhi Administration.
2. 'Rukka' was prepared by IO/HC Brijpal and thereafter, Duty Officer recorded the FIR. The time of incident is 6:40 PM and time of dispatch of tehrir is 8:00 PM. FIR was got recorded on 12.1.2010.
3. Investigation as mentioned above commenced and concluded upon filing of charge sheet. Charge for offence U/s 61 114 Excise Act was framed against the accused by the predecessor of this court on 20.12.2010. Accused opted to contest the matter.
4. In support of its case, prosecution has examined four FIR No. 10/2010 PS Mukherjee Nagar State Vs. Santosh 2 witnesses.
5. PW1 is DO/HC Virender Singh. He deposed that on 12.1.2010, he received a telephone call from Ct. Meghraj and lodged in DD register vide DD No. 24A dated 12.1.2010. He proved the true copy of the same as Ex.PW1/C. He also registered the FIR Ex.PW1/A and made endorsement on 'Rukka' Ex.PW1/B.
6. PW2 is Ct. Meghraj. He deposed that on 12.1.2010, he was posted at PS Mukherjee Nagar and on that day, he along with Ct. Meghraj was on patrolling duty. He stated that at about 6.40 p.m., they reached near Sewa Kutir where they saw one person, whose name was later on revealed as Santosh, was sitting near Sewa Kutir having weighted plastic katta and on seeing them, he became nervous and tried to flee but they stopped him and checked the plastic katta and it was found containing three carton boxes of liquor. He informed the police station and HC Brij Pal reached at the spot and accused along with recovery was handed over to him. IO recorded his statement Ex.PW2/A. He stated that IO requested 45 public persons to join the investigation but they FIR No. 10/2010 PS Mukherjee Nagar State Vs. Santosh 3 did not agree and left the spot without disclosing their names and addresses. He further stated that IO checked plastic kattas and found three carton boxes and each carton box was found containing 12 bottles printed with Narangi Special Masaledar Desi Sharab and the cartons were numbered from 1 to 3. He stated that one sample bottle from each carton was taken out and IO gave serial No. 1 to 3 and carton boxes were kept in the same plastic katta and samples were sealed with the seal of BPS. IO filled form M29 and seal after use was handed over to Ct. Venkatesh. IO prepared the seizure memo Ex.PW2/D and the 'Rukka' and got the FIR registered through Ct. Venkatesh. Thereafter, accused was arrested vide arrest memo Ex.PW2/C and the accused was released on bail on producing surety and case property was deposited in Malkhana.
7. PW3 HC Brij Pal is the IO of the case who deposed that on 12.1.2010, he was posted at PS Mukherjee Nagar and on that day on receipt of DD no. 24A he went to spot of incident near Sewa Kutir, Mukherjee Nagar and after reaching there he met with Ct. Meghraj and Ct. Vanketesh who produced accused Santosh FIR No. 10/2010 PS Mukherjee Nagar State Vs. Santosh 4 along with plastic katta of illicit liquor. He stated that he recorded statement of Ct. Meghraj Ex. PW2/A and asked four five public persons to join the investigation but none agreed. Thereafter, he opened the katta and found that it contained three gatta peties and each peti contained 12 bottles of Narangi masaledar Desi Sharab. He stated that he took out one sample from each patty and thereafter, he sealed the sample and put all the boxes in the katta and sealed the same with seal of BPS. Seal after used was handed over to Ct. Venketesh. He further stated that he seized the case property vide seizure memo Ex. PW2/B and prepared the 'Rukka' Ex.PW3/A and handed over the rukka to Ct. Venketesh for registration of FIR. He also stated that he prepared site plan Ex.PW3/B and Ct. Venketesh returned back to the spot of incident and handed over origianl rukka and copy of FIR to him. He stated that he arrested accused vide arrest memo Ex.PW2/C and also personally searched accused vide personal search memo Ex.PW2/D. He stated that thereafter, they returned back to the PS along with accused and case property and he released the accused on bail after he produced sufficient surety and the case property was deposited in malkhana. He stated that he sent sample to Excise FIR No. 10/2010 PS Mukherjee Nagar State Vs. Santosh 5 Lab and collected the result and thereafter he prepared the challan and filed the same in court through SHO.
8. PW4 is Ct. Venkatesh who deposed that 12.1.2010, he was posted at PS Mukherjee Nagar and on that day, he along with Ct. Meghraj was on patrolling duty and at about 6.40 p.m., they reached near Sewa Kutir where they saw the accused whose name was later on revealed as Santosh, was sitting near plastic katta and on seeing them in uniform, he became nervous and tried to flee. He stated that they stopped and checked the plastic katta and it was containing three carton boxes of liquor and they informed the police station and HC Brij Pal reached at the spot and accused along with recovery was handed over to him. He stated that IO requested 45 public persons to join the investigation but they did not agree and left the spot without disclosing their names and addresses and IO checked plastic kattas and found three carton boxes and each carton box was found containing 12 bottles printed with Narangi Special Sharab and the cartons were numbered from 1 to 3. He stated that one sample bottle from each carton was taken out and IO gave serial No. 1 to 3 and carton boxes were kept in the same plastic katta and plastic katta and samples were sealed FIR No. 10/2010 PS Mukherjee Nagar State Vs. Santosh 6 with the seal of BPS. He stated that IO filled form M29 Ex.PW4/A and seal after use was handed over to him. He stated that IO prepared the seizure memo Ex.PW2/D and also prepared the 'Rukka' and got the FIR registered through him and thereafter, accused was arrested vide arrest memo Ex.PW2/C. He also stated that accused was released on bail and case property was deposited in Malkhana and IO also obtained the result Ex.PW4/X from Excise Laboratory later on.
9. Statement of accused was recorded U/s 313 Cr.PC wherein entire incriminating was put to him to which he pleaded innocence. He stated that he has been falsely implicated in the case. No defence evidence has been led.
10. Arguments heard. Record perused.
11. The investigation conducted by the material witnesses including independent public witnesses is the yardstick for assessing the genuineness of the story put forth by the prosecution. No independent / public witness was brought to the FIR No. 10/2010 PS Mukherjee Nagar State Vs. Santosh 7 witness box to testify the testimonies / depositions of the witnesses examined during the course of trial and thus their testimonies remained uncorroborated. The non joining of the public witness creates doubt on the story of the prosecution as held in PAWAN KUMAR Vs. DELHI ADMINISTRATION 1987 CC Cases 585 HC by Hon'ble High Court of Delhi. Otherwise also it is settled law that testimonies of police personnels have to be read with due care and caution especially when the same are not supported by any other independent witness to the recovery.
A bare perusal of testimonies and the documents proved by them only drags the fate of the matter towards its fag end. The reasons amongst others, for arriving at this conclusion, are as under: ✔ The recovery was effected from a public place, Still no public witness was joined in the investigation ✔ No notice was served upon the public persons for non joining the proceedings ✔ The accused was arrested on 12.1.2010 whereas the sample was sent to Excise Laboratory on 21.1.2010. There is a delay of 9 days in sending the sample. No reason assigned.
FIR No. 10/2010 PS Mukherjee Nagar State Vs. Santosh 8 ✔ Memo of handing over seal was not prepared.
✔ Seizure memo was prepared prior to the registration of FIR, however, FIR number is mentioned thereupon which casts doubt over the story of the prosecution.
12. Further a bare perusal of testimonies of PW's, their version appear to be stereo typed and keeping in view the fact that their narration remained uncorroborated by any other independent witness to recovery of illicit liquor , it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that Prosecution case resting solely on the testimony of head constable and four other police constables no independent witness examined prosecution story appearing improbable and unnatural' held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted.
FIR No. 10/2010 PS Mukherjee Nagar State Vs. Santosh 9
13. Keeping in view the above discussion, facts and circumstances of the case, I am of the opinion that it will be highly unsafe to pass the order of the conviction against the accused on the basis of the material available before me in the present case. Thus, I am left with no option but to hold that prosecution failed miserably to prove its case against the accused beyond the shadow of doubt. Benefit of doubt is, therefore, given to the accused and accused Santosh, therefore, stands acquitted from the charge U/s 61114 Excise Act.
Announced in the Open Court today on 2.3.2016 (Manish Khurana) ACMM (North): Rohini 2.3.2016 FIR No. 10/2010 PS Mukherjee Nagar State Vs. Santosh 10