Delhi District Court
State vs . Mahender on 17 August, 2011
IN THE COURT OF SH. SAURABH PRATAP SINGH LALER
METROPOLITAN MAGISTRATE-06 (EAST), KARKARDOOMA
COURTS, DELHI.
FIR NO. 363/05
PS: Vivek Vihar
Offence complaint of : 61 Punjab Excise Act.
Date of commission of offence : 29.9.05
Unique Case ID No. : 02402R0098852006
STATE Vs. Mahender
S/o Sh. Saran Singh
R/o 28/44A, Kasturba Nagar,
Delhi ............. Accused
Ct. Devender Singh No. 1779/E ............. Complainant
Date of Institution : 15.2.06
Plea of accused : Pleaded not guilty
Date of reserving judgment/order : 2.8.2011
Date of pronouncement : 17.8.2011
Final Order : Acquitted
BRIFE STATEMENT FOR THE REASONS FOR DECISION:
1.The case of the prosecution is that on 28.9.05 at about 5.30 PM at DDA Flats Chowk, Jhilmil Colony, PS Vivek Vihar, Delhi accused Mahender was found in possession of 7.5 litres of country made liquor without having any permit or license and thereby accused committed an offence punishable under Section 61 Excise Act.
FIR No. 363/05 State Vs Mahender 1 of 9 On the basis of above facts an FIR No. 363/05 was registered in the PS Vivek Vihar against the accused U/s 61 of Punjab Excise Act.
Statements of witnesses were recorded, site plan was prepared, the accused was arrested and after completion of all necessary investigation charge sheet U/s 173 Cr. P.C was presented in the court for trial on 15.2.06.
2. The accused was summoned by the Court to face the trial so copy of challan as required under section 207 Cr. PC was supplied to him. Thereafter case was fixed for consideration of charge.
3. On hearing arguments and on perusal of record, prima facie charge for the offence under Section 61 of Punjab Excise Act was made out against the accused. Accordingly charge was framed against the accused on 7.1.08. Thereafter case was fixed for prosecution evidence.
4. In order to prove its case the prosecution examined six witnesses namely ASI Krishan Pal as PW1. Ct. Devender Kumar as PW2, HC Amrish as PW3, HC Jaiveer as PW4, HC Mahender as PW5 and D.K. Punj as PW6.
5. PW1 ASI krishan Pal is the Duty Officer who deposed that on 28.9.05 on receipt of rukka from Ct. Devender sent by HC Amrish he recorded the present FIR bearing No. 363/05. He also proved the copy of FIR as Ex.PW1/A and his endorsement on the rukka as Ex.PW1/B. FIR No. 363/05 State Vs Mahender 2 of 9
6. PW2 Ct. Devender is the star witness as he is the witness of recovery who deposed that on 28.9.05 during his duty at Jhilmil Colony at about 5.30 PM he saw a person coming from the side of Karkardooma Road containing one can containing liquor so he apprehended accused Mahender. PW also proved complaint as Ex.PW2/A, seizure memo as Ex.PW2/B and arrest memo as Ex.PW2/C.
7. PW3 HC Amrish is the IO of the present case and deposed on the aspects of the investigation that on 28.9.05 on receipt of DD No. 22 he went to the spot i.e. DDA Flat, Jhilmil Chowk at about 6.05 PM where Ct. Devender met him and produced accused Mahender along with the recovered can containing liquor so checked the can. PW4 proved complaint/rukka as Ex.PW2/A, seizure memo as Ex.PW2/B, arrest memo as Ex.PW2/C and site plan as Ex.PW3/1.
8. PW4 HC Jaiveer Singh is the MHC(M) who deposed that on 28.9.05 on the directions of the IO, he deposited one plastic can filled up with and sample quarter bottle sealed with the seal of AKP in the malkhana vide R/C No. 224/21. He further deposited that he made entry in this regard in register No. 19 at sl. 2619. PW4 also proved copy of relevant entry as Ex.PW3/A.
9. PW5 HC Mahender Singh deposed that on 21.10.05 on the directions IO, he took sample quarter bottle sealed with the seal of AKP from the malkhana and deposited the same in the Excise Laboratory vide FIR No. 363/05 State Vs Mahender 3 of 9 R/C No 224/21 and after deposit he handed over receipt to the MHC(M).
10. PW6 Sh. D.K. (retired) Punj is the chemical examiner who deposed that the sample was analyzed by by Sh. Ram Singh under his supervision and proved his report as Ex.PW6/A.
11. On 10.6.2011 statement of the accused was recorded wherein he denied the allegations of prosecution and claimed innocence. Accused did not desire to lead evidence in his defence.
12. I have heard the Ld.APP for the state and Ld. Defence counsel and have also carefully perused the entire record and the relevant provisions of the law.
13. It is settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
FIR No. 363/05 State Vs Mahender 4 of 9
14. From careful perusal of testimonies of this witnesses, it reveals that the witnesses admitted in examination in chief that several public persons were available at the spot but they were not made witness in the present case and it is a serious lapse on the part of IO/prosecution and there are also several material contradictions in the testimony of the PWs.
15. In the present case, the Investigating Officers have not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused person (as admitted by PW2 the recovery witness and PW3 the IO) and while completing the formalities. Further, as per site plan several residential houses were located near the place of alleged recovery but none of the occupants from any of the said houses were even requested to become witness.
16. Investigating Agency had sufficient opportunity to join a public witness. Merely stating that they tried to join public witness, but public persons refused to join, is insufficient as they have not obtained even the names of such public persons and have also failed to explain as to why the provisions of section 174 IPC r/w Section 42 of the Cr. P.C. was not brought into action against such public persons.
In the state of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held:
"The failure of the prosecution to examined independent witnesses though available FIR No. 363/05 State Vs Mahender 5 of 9 is fatal for their case."
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 memo 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 witnesses. 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) ***
FIR No. 363/05 State Vs Mahender 6 of 9
(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." An adverse inference, therefore, could be drawn for non-examination of material witnesses." (emphasis supplied) In absence of a public witness to the recovery and also in absence of an explanation as to why a public reason was not joined in the investigation, the prosecution has failed to prove the recovery of the liquor from the accused beyond reasonable doubt.
17. Also in this case no efforts were made to hand over the seal after use to any independent public person and in such cases, in view of Saifulla Vs. State 1998(1) CCC 497 (DELHI) & Abdul Gaffar Vs. State 1996 JCC 497 (DELHI), benefit of doubt must be given to the accused persons.
18. Further it is found that seizure memo of the liquor Ex.PW2/B bears the number of FIR, though, as per rukka Ex.PW4/A the said document was prepared before registration of FIR. Thus, the fact that said seizure memo Ex.PW2/B bears FIR number gives rise to two inferences that either FIR was registered after the alleged recovery of the liquor or the number of the FIR was inserted in the seizure memo after its registration.
FIR No. 363/05 State Vs Mahender 7 of 9 In both the situations it seriously reflects on the veracity of the prosecution case and robs the efficacy of the evidence of the aforesaid police official regarding the alleged recovery of the liquor from the possession of the accused. Reliance is placed upon judgment titled "Prithvi Pal Singh @ Munna Vs. State 2000 II AD (Cr.) DHC 61".
19. In view of my above discussion, I am of the considered opinion that prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. Therefore, in the absence of any cogent evidence against the accused, accused deserves to be acquitted. So, benefit of doubt is given to the accused.
Accordingly, accused Mahender is acquitted of the offence u/s 61 of Excise Act for which he stands charged in the present case.
Bail bond and surety bond each shall remain intact u/s 437A Cr.PC. till six months with further directions to appear before appellate Court as and when receives notice in this behalf.
File be consigned to Record Room.
Announced in the open Court on 17.8.2011 ( S.P.S. Laler) Metropolitan Magistrate KKD, Delhi Certified that this judgment contains 8 pages and each page bears my signature.
( S.P.S. Laler)
Metropolitan Magistrate
KKD, Delhi
FIR No. 363/05 State Vs Mahender 8 of 9
FIR No. 363/02
PS Vivek Vihar
7.7.2011
Present:- Ld. APP for State.
Accused on bail with counsel.
Part Arguments heard.
Put up for remaining arguments on 2.8.2011.
(S.P.S. LALER) MM(EAST)/KKD/DELHI 7.7.2011 2.8.2011 Present:- Ld. APP for State.
Accused on bail with counsel.
Final arguments heard.
Put up for orders on 17.8.2011.
(S.P.S. LALER) MM(EAST)/KKD/DELHI 2.8.2011 17.8.2011 Present:- Ld. APP for State.
Accused on bail with counsel.
Vide separate judgment, accused Mahender is acquitted of the offence punishable u/s 61 of Excise Act for which he is charged in the present case.
Bail bond and surety bond each shall remain intact u/s 437A Cr.PC. till six months with further directions to appear before appellate Court as and when receives notice in this behalf.
File be consigned to Record Room.
(S.P.S. LALER)
MM(EAST)/KKD/DELHI
17.8.2011
FIR No. 363/05 State Vs Mahender 9 of 9