Delhi District Court
Proved On Record. In Rattan Lal vs . State 1987 (2) Crimes 29 The on 18 January, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
PRESIDING OFFICER : SH. VISHAL PAHUJA.
FIR NO.178/17
PS: MIANWALI NAGAR
U/S: 33 DELHI EXCISE ACT
New Case No. : 332/18
Date of commission of offence : 01.04.2017
Date of institution of the case : 16.01.2018
Name of the complainant : Ct. Yogesh
Name of accused and address : Faeem s/o Sh. Khuda
Baksh, r/o Jhuggi no. 369, T
Huts, Camp no. 4, Jwala
Puri, Delhi.
Offence complained of or proved : U/s 33 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment : 18.01.2019
Date of judgment : 18.01.2019
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BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused Faeem pursuant to charge sheet filed by PS Mianwali Nagar U/s 33 Delhi Excise Act subsequent to the investigation carried out by them in FIR No. 178/17.
2. As per the prosecution, Ct. Yogesh while patrolling on 01.04.2017 at about 06.00 PM reached nearby Udyog Nagar Metro Station met one secret informer who apprised that one person nearby red light area, Camp no. 4 is in possession of illicit liquor in a sack. On this information Ct.
Yogesh went at Camp no. 4 nearby red light where one person (whose name was revealed after his apprehension as accused Faeem). On suspicion, Ct Yogesh moved towards the accused Faeem but on seeing him accused tried to turn from his way, however, Ct. Yogesh moved FIR No.178/2017, PS MIANWALI NAGAR Page 1 of 7 towards the accused and he was apprehended. Accused was in possession of a sack which was checked and found containing quarter bottles of illicit liqour. Thereafter, the information was passed to the police station and ASI Jagdish came at the spot. The accused was handed over to IO. The sack was checked and same was found containing 150 quarter bottles of Asli Santra Masaledar Sharab for sale in Haryana only. The accused was found in possession of the liquor without any permit or licence in contravention of the provisions of Delhi Excise Act. Accordingly, after the investigation, police filed the present charge sheet against the accused.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offence punishable under section 33 Delhi Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. Thereafter, the matter was posted for prosecution evidence. The prosecution got examined two witnesses in support of its case.
5. PW1 Ct. Yogesh stated that on 01.04.2017 he was on patrolling duty and at about 06.00 PM when he reached nearby Udyog Nagar Metro Station, one secret informer met PW1 who apprised him that one person nearby red light area, Camp no. 4 is present who has in his possession illicit liquor in a sack. On this information PW1 went at camp no. 4 nearby red light where the present accused namely Faeem, whose name was revealed after his apprehension, was found having in possession of one sack. On suspicion, PW1 moved towards the accused Faeem but on seeing him accused tried to turn from his way, however, PW1 moved towards the accused and apprehended him. It is stated that after the apprehension of present accused the said sack which was in his possession was put on the road and the same was checked which was found containing Asli Santra Masaledar Sharab for sale in Haryana only. Immediately, after the recovery the information was given at PS FIR No.178/2017, PS MIANWALI NAGAR Page 2 of 7 whereupon IO ASI Jagdish reached at the spot. On reaching of IO at the spot PW1 handed over the said sack recovered from the possession of accused Faeem to the IO. At the spot, IO checked the said sack and the quarter bottles were counted which were found 150 in number. One quarter bottle as sample was taken and fastened from its bottleneck with a white cloth and sealed with the seal of UST. It is further stated that the sack containing the remaining quarter bottles were also sealed with the seal of UST. It is stated that the said recovered quarter bottles were taken into possession vide seizure memo Ex. PW1/A. Form M-29 was also filled by the IO which is marked as Mark P1/A. Thereafter, IO recorded the statement Ex. PW1/B of PW1 and on that statement IO prepared rukka/ tehrir and the same was handed over to PW1 for the registration of FIR. After the registration of FIR PW1 returned at the spot and handed over original rukka and copy of FIR to IO. Afterwards, IO prepared site plan which is Ex. PW1/C. After the completion of aforesaid proceedings the present accused namely Faeem was arrested and personally searched vide memos Ex. PW1/D and Ex. PW1/E respectively. Thereafter, PW1 along with IO returned at PS and the present accused was also taken at PS where after his medical examination he was put behind the bars. The case property was also deposited with MHC(M). This witness correctly identified the case property Ex.P1. This witness was not cross-examined on behalf of accused.
6. PW2 ASI Jagdish Prasad deposed qua the manner and his involvement in the investigation being the IO of the case. PW2 also deposed on the same lines as that of PW1, in addition to this he exhibited on record the rukka/tehrir as Ex. PW2/A. This witness also relied upon the documents already exhibited on record by PW1. This witness was cross- examined on behalf of accused.
7. During trial accused admitted the copy of FIR i.e. 78/17 dated 01.04.2017 along with certificate u/s 65B of Indian Evidence Act, DD no. 42A dated 01.04.2017 and report of excise lab. The same are Ex. X1 to FIR No.178/2017, PS MIANWALI NAGAR Page 3 of 7 X4 respectively.
8. No other witness was left to be examined, hence PE was closed on 14.12.2018.
9. Thereafter, statement of accused under Section 281 Cr.P.C read with Section 313 Cr.P.C was recorded in which all incriminating circumstances appearing in evidence against accused were put to him to which he stated that he is innocent and has been falsely implicated in this case. Accused opted not to lead any defence evidence.
10. Arguments addressed by defence counsel and Ld. APP have been heard and record has been perused.
11. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted.
12. After considering respective arguments and evidence led by prosecution, the undersigned is of the considered opinion that prosecution has not been able to prove guilt of accused beyond reasonable doubt. The accused deserves acquittal on following grounds:-
13. Firstly, no DD entry has been proved on record by prosecution in order to show that PW1 Ct. Yogesh was indeed on patrolling duty on the FIR No.178/2017, PS MIANWALI NAGAR Page 4 of 7 day of alleged recovery of liquor. This is an important missing link in the version of prosecution. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:-
(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 personally by signature or seal.
Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No.II is maintained.
14. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no.II, he was patrolling in the particular area. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. In Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that:
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."FIR No.178/2017, PS MIANWALI NAGAR Page 5 of 7
15. Apart from this, his presence at the spot is not proved. If he has departed from PS for patrolling duty the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown his departure as all.
16. Further, from prosecution version, it does not appear that before checking the sack of the accused, recovery witness made any sincere efforts to join public persons to witness search despite the place of recovery is stated to thickly populated area. No notice has been proved on record to show that any public person was asked to join the search proceedings. The place at which illicit liquor was allegedly recovered appears to be a public place and it is not the case of prosecution that public witnesses were not available at that place. Non joining of public witnesses also causes a dent in credibility of prosecution version and had public witnesses witnessed the recovery of the case property, prosecution version would have been more authentic. This is not to say that testimony of police officials is not reliable but addition of public witnesses before search of accused would have made prosecution version more reliable. As it is established principle of law that where a number of public persons would be available, but no public witness has been engaged in this case nor any sufficient explanation given for non-joining the public witness at the time of apprehension of accused. In the case where the public witness are easily available and they are not being joined without any justified reason, the statement of police witnesses only cannot be relied. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) in which High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly FIR No.178/2017, PS MIANWALI NAGAR Page 6 of 7 when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
17. From the above stated facts the recovery of illicit liquor from the possession of accused becomes doubtful. These are material missing link in version of prosecution and tampering of case property in these circumstances cannot be ruled out. These contradictions show that the recovery was not effected and the accused was not arrested as claimed by the prosecution.
18. In view of the foregoing discussion, it is held that the prosecution has not been able to successfully build the case against the accused. As there are material discrepancies in the prosecution case, it is a fit case in which benefit of doubt must be given to the accused. Accused is thus entitled to benefit of doubt and is accordingly acquitted for offence for which he has been charged.
19. Requirements of Section 437-A Cr.P.C have been complied with. File be consigned to Record Room after due compliance.
Digitally signedVISHAL by VISHAL PAHUJA PAHUJA Date: 2019.01.18 16:35:16 +0530 ANNOUNCED IN THE OPEN (VISHAL PAHUJA) COURT ON 18.01.2019 MM-04 (WEST)/DELHI Containing 07 pages all signed by the presiding officer. Digitally signed VISHAL by VISHAL PAHUJA PAHUJA Date: 2019.01.18 16:35:22 +0530 (VISHAL PAHUJA) MM-04 (WEST)/DELHI FIR No.178/2017, PS MIANWALI NAGAR Page 7 of 7