Delhi District Court
State vs . Vinod on 22 November, 2012
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 62/2005
P.S. Sarita Vihar
U/s 61/1/14 Punjab Excise Act
State Vs. Vinod
JUDGMENT :
a. Sl. No. of the case : 88/3
b. Date of Institution : 07.11.2005
c. Date of Commission of Offence : 09.02.2005
d. Name of the complainant : HC Rajbir Singh
PS Sarita Vihar
e. Name of the accused and his : Vinod
parentage and address S/o Kishan Singh
R/o H.no.208A,New Mangla
Puri, Mehrauli, New Delhi
f. Offence complained of : U/s 61/1/14 Punjab Excise Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 22.11.2012
i. Final Order : Acquittal
j. Date of such order : 22.11.2012
1. The accused in this case was sent up for trial for the commission of offence U/s 61/1/14 of Punjab Excise Act.
FIR NO. 62/2005 PAGE 1 OF PAGE 8 PS SARITA VIHAR 2. The facts in brief are that on 09.02.2005, HC Rajbir Singh while
patrolling duty along with Ct. Krishan Gopal reached Theka Desi Sharab, J.J. Colony, Madanpur Khadar Jalebi Chowk, J.J. Colony, Madanpur Khadar and at about 6.25 p.m., one secret informer informed them that accused would come from Madanpur Khadar Village side on his scooter bearing no. DL3SZ6571 make Bajaj Chetak and he was having the possession of illicit liquor. On this, they both along with HC Subhash from Excise Department along with the secret informer reached the spot and apprehended the accused on the pointing out of secret informer and on the search of his scooter, one plastic katta was found on the front diggi of the scooter and on checking the same, total 122 quarter bottles of illicit liquor were recovered. Thereafter a tehrir was prepared and present case FIR was got registered in PS Sarita Vihar. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing the other formal investigation, the challan was presented before the court for trial u/s. 61/1/14 Punjab Excise Act against the accused.
3. As a prima facie case was made out against the accused, charge was framed against the accused on 02.03.2006, U/s. 61/1/14 of Punjab Excise Act to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined four witnesses namely ASI Anwar Khan as PW1, Ct. Krishan Gopal as FIR NO. 62/2005 PAGE 2 OF PAGE 8 PS SARITA VIHAR PW2, Ct. Rajesh as PW3, and HC Rajbir Singh as PW4.
5. PW1 ASI Anwar Khan has testified that on 09.02.2005, on receipt of rukka through Ct. Krishan Gopal, he recorded the present case FIR which is Ex. PW1/A. His endorsement on rukka is Ex. PW1/B.
6. PW2 Ct. Krishan Gopal has testified that he along with HC Rajbir was on patrolling duty in the area of J.J. Colony, Madanpur Khadar where one secret information was received that one person would come from Madanpur khadar side on a scooter bearing no. DL3S6571. PW2 further testified that IO requested some public witnesses to join the raiding party but none of them agreed and left the place. In the meantime, HC Subhash from Excise Department met them and they went to Agra Canal Pul Madanpur Khadar Village. PW2 further testified that at about 6.40 p.m., one scooter came from Madanpur Khadar Village side who was stopped and one plastic katta was found on the foot rest in front of diggi side and on checking the same, total 122 quarter bottles of Desi Sharab were recovered. PW2 further testified that accused was arrested, case property was sealed with the seal of RS and the scooter was also seized. PW2 was cross examined by Ld. APP as he was resiling from his statement given earlier to the police. In his cross examination, PW2 has testified that one quarter bottle was taken out as sample and rest of the case property was seized along with scooter vide memo Ex. PW3/A. PW2 further testified that the accused present in the court was arrested FIR NO. 62/2005 PAGE 3 OF PAGE 8 PS SARITA VIHAR vide memo Ex. PW2/B and his personal search was conducted vide memo Ex. PW3/C. PW2 further testified that IO prepared the rukka and handed over the same to him for the registration of FIR. PW2 correctly identified the case property produced in unsealed condition which are Ex. P1 and P2.
7. PW3 Ct. Rajesh has testified that on 01.03.2005, IO had handed over one sample vide RC no. 36/21 to deposit the same in Excise Office and he deposited the same.
Accused did not prefer to cross examine PW3.
8. PW4 HC Rajbir Singh has testified that on 09.02.2005, he along with Ct. Krishan Gopal was on patrolling duty at Theka Desi Sharab, J.J Colony, Madanpur Khadar and at about 6.25 p.m., one secret informer informed him that one person would come from Madanpur Khadar Village side on his scooter bearing no. DL3SZ6571 make Bajaj Chetak and he was having illicit liquor in his possession and if raid conducted, he could be apprehended. PW4 further testified that on this information, he requested some public persons to join the investigation but none agreed except one person namely HC Subhash from Excise Department who shared the same information with them. PW4 further testified that he prepared the raiding party including secret informer, HC Subhash and Ct. Krishan Gopal and at about 6.40 p.m., one person was coming on his scooter from Madanpur Khadar village side and he was pointed out by secret informer. He was stopped FIR NO. 62/2005 PAGE 4 OF PAGE 8 PS SARITA VIHAR and on checking, one plastic katta was found on the front diggi of the scooter lying under his foot. PW4 further testified that he opened the plastic katta and after checking the same, total 122 quarter bottles containing illicit liquor were recovered out of which he had taken out one quarter bottle as sample. PW4 further testified that the name of accused was revealed as Vinod present in the court. He sealed the sample bottles and rest of the case property with the seal of RS. He also filled the form M29 vide Ex. PW4/A and the seal after use was handed over to Ct. Krishan Gopal. PW4 further testified that he seized the katta and samples and the scooter vide memo Ex. PW2/A. He prepared the rukka vide Ex. PW4/B and handed over the same to Ct. Krishan Gopal for the registration of FIR. PW4 further testified that he prepared the site plan vide Ex. PW4/C. He arrested the accused and conducted his personal search vide memos Ex. PW2/B and C.
9. After closing of prosecution evidence, statement of accused was recorded U/s 313 r/w. 281 of Code of Criminal Procedure Code,1973. In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. He further denied to lead any evidence in his defence.
10. I have heard the Ld. APP for the State and Ld. Counsel for the accused and also perused the record.
11. In this case, the prosecution is required to establish beyond reasonable FIR NO. 62/2005 PAGE 5 OF PAGE 8 PS SARITA VIHAR doubt that the accused was in possession of illicit liquor without valid license or permit. All the witnesses produced by the prosecution are police officials. Material witnesses of the prosecution are PW2 and PW4 as they both got recovered the plastic katta containing 122 quarter bottles of illicit liquor. PW4 is the IO of the case also who had done all the documentary proceedings.
12. In the present case, no public witness has been associated with the investigation. No independent witness has been joined at the time of the arrest of the accused and recovery of illicit liquor. In the present case, PW2 and PW4 both have deposed that one HC Subhash from Excise Department met them and he was also joined in the raiding party as he had also shared the same information to them regarding possession of illicit liquor with the accused. But the said HC Subhash from Excise Department has neither been cited as as witness nor he has been produced or examined by the prosecution. All the witnesses to the recovery being police officials, such recovery does not inspire confidence. Similar view has been expressed by the Supreme Court in Sanspal Singh v. State of Delhi, (1998) 2 SCC 371 and the Delhi High Court in Staila Sayyed v. State, (Delhi) 2008(4) JCC 2840.
13. Further, it needs to be noted that the seizure memo and personal search memo bears the number of FIR. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid documents, which were FIR NO. 62/2005 PAGE 6 OF PAGE 8 PS SARITA VIHAR allegedly prepared on the spot before registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the illicit liquor or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery in the manner alleged by the prosecution. Reliance may be had to the decision of the Delhi High Court in Lalji V. State, (Delhi) 2000(1) R.C.R. (Criminal) 622 may be referred to.
14. Again, there is nothing on record to prove that the seal with which the recovered plastic katta containing the illicit liquor was sealed was handed over to any independent witnesses after use. In the present case, PW4 has deposed that the seal after use was handed over to PW2. On the other hand, PW2 has not deposed a single word about this fact. Further, the case property produced before the court was in unsealed condition. In such circumstances possibility of tampering with contents of sealed bag/parcel cannot be ruled out. It was very essential for prosecution to have established that sealed cane was not tampered with. In this respect the decision of the Delhi High Court in Safiullah v. State (Delhi Administration), (Delhi) 1993 (1) R.C.R. (Criminal) 622 may be referred to.
15. Moreover, no DD entry in respect of PW2 and PW4 is proved on record to establish that they were actually present in the area at the relevant FIR NO. 62/2005 PAGE 7 OF PAGE 8 PS SARITA VIHAR time in connection with patrolling of the area. Thus the presence of these witnesses at the alleged time itself is rendered doubtful. This view has been expressed by the Delhi High Court in Shekhar v. State of NCT of Delhi, (Delhi) (D.B.) 2008 Cri.L.J. 3258
16. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
17. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Vinod is acquitted for the offence punishable U/s. 61/1/14 of Punjab Excise Act for which he stands charged.
Announced in the Open Court On 22.11.2012 (DEEPAK SHERAWAT) Metropolitan Magistrate South East District/New Delhi FIR NO. 62/2005 PAGE 8 OF PAGE 8 PS SARITA VIHAR FIR No.62/05 PS Sarita Vihar u/s 61/1/14 Punjab Excise Act 22.11.2012 Present: Ld. APP for the State.
Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 61/1/14 of Punjab Excise Act for which he stands charged.
Accused is admitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/with one surety in the like amount. Bail bond furnished. Same is accepted. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal bond as well as surety bond for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East Delhi/22.11.2012
FIR NO. 62/2005 PAGE 9 OF PAGE 8
PS SARITA VIHAR