Delhi District Court
State vs . Baldev Raj on 1 June, 2011
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 361/07
P.S. Malviya Nagar
U/s 61/1/14 Excise Act
State Vs. BALDEV RAJ
JUDGMENT :
a. Sl. No. of the case : 150/3
b. Date of Institution : 13.09.2007
c. Date of Commission of Offence : 02.04.2007
d. Name of the complainant : HCt. Vijay Pal
no. 353/SD
e. Name of the accused and his : Baldev Raj
parentage and address S/o Sh. MadanLal
R/o 412B, Chattarpur, Delhi
f. Offence complained of : U/s 61/1/14 Excise Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 1.06.2011
i. Final Order : Acquittal
j. Date of such order : 1.06.2011
1. The accused in this case was sent up for trial for the commission of offence U/s 61/1/14 Excise Act.
FIR no. 361/07 Page 1 of 8
2. The facts in brief are that on 02.04.2007 at about 8.15 pm while HCt. V P Chauhan along with Ct. Rajender were on petrolling duty at DDA Flats, Lado Sarai they received secret information that one person is present at park near DDA Flat, Lado Sarai who was in possession of illicit liquor so he reached at the spot and saw accused sitting on a bori who was apprehended on pointing out of secret informer and on checking of bori five petis/cartons containing 12 bottles of illicit liquor in each carton were recovered so tehrir was prepared and present case FIR no. 361/07 was got registered in PS Malviya Nagar. 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 Excise Act against the accused.
3. As a prima facie case was made out against the accused, charge was framed against the accused on 21.04.2009 U/s. 61/1/14 Excise Act to which he pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has produced and examined three witnesses i.e. HCt. Bhajan Ram as PW1, HCt. Rajinder Singh as PW2 and HCt. V.P. Chauhan as PW3.
5. PW1 HCt. Bhajan Ram has testified that on 02.04.2007 he recorded present case FIR Ex.PW1/A on receipt of rukka through Ct. Rajender and put his FIR no. 361/07 Page 2 of 8 endorsement Ex.PW1/B on rukka.
Accused did not prefer to cross examine this witness.
6. PW2 HCt. Rajinder Singh has testified that on 2.4.2007 he was on petrolling duty along with HCt. Vijay Pal at DDA Park, Lado Sarai where they saw accused present in the court coming from the Lado Sarai side after taking round from bus stand who was having two plastic bags in both hands so they apprehended him on the information of secret informer and on checking the plastic bags same were found containing twelve bottles each. Thereafter accused along with recovered bottles in katta were taken to PP Saket. HCt. Vijay Pal took out a sample in a quarter bottle from one bottle which was sealed with the seal of VP and said sample and seal was deposited in malkhana. Case property was produced in a jute bag in unsealed condition. Five cartons were Ex.P1, total 55 bottles of brand of Shokeen out of which three are empty are Ex.P2 and half filled are collectively as Ex.P3 and P47 filled bottles are collectively Ex.P4.
Ld. APP cross examined this witness as he resiled from his statement given earlier to the police where he testified that secret informer met them at Lado Sarai before apprehension of the accused and liquor shops were closed on that day due to holiday and IO had not asked any person to join the investigation and he admits that accused was found sitting in a park on the plastic bag and he was apprehended on the instance of secret informer. He further deposed that he does not remember whether IO took out a bottle as a sample and same was sealed with the seal of VP and he admits that IO handed over the seal to him and form M 29 was FIR no. 361/07 Page 3 of 8 also filled. He further admits that IO prepared the tehrir and he got the case registered and came back at the spot and handed over the copy of FIR and tehrir to the IO who arrested the accused and conducted his personal search vide memo Ex. 2/A and he conducted his personal search vide memo Ex.PW2/B and due to lapse of time he could not recollected the entire facts.
7. PW3 HCt. Vijay Pal Chauhan has testified that on 2.4.07 while petrolling with Ct. Rajender he reached at DDA Flat, Lado Sarai and received secret information that one person is in possession of illicit liquor on account of elections. Request was made to public persons but none came forward. At about 8.15 pm, accused present in the court today was apprehended from park near DDA Flat, Lado Sarai who was in possession of 5 petis of Shaukeen Masaledar liquor containing 12 bottles each in bori. One bottle from each was taken as sample. Case property was sealed with the seal of VP and seized vide memo Ex.PW3/A and he prepared tehrir Ex.PW4/B and Ct. Rajender got the case FIR registered. Accused was arrested and his personal search was conducted vide memo Ex.PW2/A and B. He prepared the site plan Ex.PW3/C, samples were also sent to excise lab and result Ex.PW3/D was also collected later on. PW3 identified the case property as Ex.P1 collectively.
Accused did not prefer to cross examine this witness.
8. After closing of prosecution evidence, statement of accused persons 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 FIR no. 361/07 Page 4 of 8 falsely implicated in this case.
9. I have heard the Ld. APP for the State and Ld. counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
10. In this case, the prosecution is required to establish beyond reasonable doubt that the accused was in possession illicit liquor without valid license or permit. All the witnesses produced by the prosecution are police officials. All of them have supported the prosecution version. PW1 is DO who recorded present case FIR Ex.PW1/A. Material witnesses of prosecution is PW2 and PW3 as recovery of illicit liquor was effected in their presence. PW2 has turned totally hostile as he has narrated a totally different story in respect of recovery of illicit liquor from the possession of accused as he told that they saw accused coming from the side of Lado Sarai after taking round from bus stand with two plastic bags in both hands whereas PW2 has testified and even in rukka Ex.PW3/B it is recorded that secret informer shared information regarding presence of one person with illicit liquor at park near DDA Flats, Bus Stand, Lado Sarai so they reached there and in the park accused was found in possession of 5 petis of Shaukeen Masaledar liquor containing 12 bottles each in a bori. PW2 has not deposed anything about seal, seizure of case property, preparation of tehrir and registration of case FIR and even about arrest and personal search of accused. Both PW2 and PW3 has not deposed a single word about filling of Form M29 at the spot. PW2 has deposed during cross examination by FIR no. 361/07 Page 5 of 8 Ld. APP that IO had not asked any public person to join the investigation but PW2 has deposed that request was made to public persons but none came forward. Thus, these contradictory statements of PWs are not reliable and cannot be considered for the purpose of conviction of the accused.
11. It is pertinent to mention here that the case property Ex.P1 was produced before the court in unsealed condition and out of 55 total bottles three were found empty which are exhibited as Ex.P2 and half filled bottled are collectively exhibited as Ex.P3 and 47 filled bottles are exhibited as Ex.P4 but no explanation is given as to why some of the bottles were empty or half filled so possibility of tampering with the case property cannot be ruled out.
12. Moreover, 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. 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 pesonal 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 allegedly prepared on FIR no. 361/07 Page 6 of 8 the spot before registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery 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 bori and 5 cartons containing the recovered bottles of illicit liquor or sample bottles were sealed was handed over to any independent witnesses after use. No evidence is on record to show that CFSL form was filled or deposited with Moharrar Malkhana. 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 bag/parcel 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 HCt. Rajender, PW2 and HCt. Vijay Pal Chauhan, PW3 is proved on record to establish that they were actually present in the area at the relevant 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 FIR no. 361/07 Page 7 of 8 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 Baldev Raj is acquitted for the offence punishable U/s. 61 /1/14 of Excise Act for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 01.06.2011 Metropolitan Magistrate
South District/New Delhi
FIR no. 361/07 Page 8 of 8