Delhi District Court
State vs . Birender Kumar Sharma on 3 October, 2012
IN THE COURT OF SH. GAGANDEEP SINGH
METROPOLITAN MAGISTRATE, DELHI
FIR NO: 222/05
U/S: 61/1/14 EXCISE ACT
P.S: TIMAR PUR
STATE VS. BIRENDER KUMAR SHARMA
:JUDGMENT:
Sl. No. of the case 211/3
Date of commission of offence 12.05.2005
Name of the complainant Ct. Satish Pal
No. 2040/North
P. S. T. Pur,
Delhi.
Name, parentage and address Birender Kumar Sharma
of the accused. S/o Sh Jagdish Prasad
Sharma
R/o Gali No. 5, Surender
colony, PartI,
Jharoda, Delhi.
STATE VS. BIRENDER KUMAR SHARMA
FIR NO. 222/05
1/9
Offence complained off U/s 61/1/14 Excise
Act.
Plea of accused Pleaded not guilty
Final order Acquitted
Date of order 03.10.2012
Date of final arguments heard 03.10.2012
BRIEF FACTS AND REASONS FOR DECISION :
1. The facts of the case in brief are that on 12.05.2005 at about 10:00 pm at Jharoda road, near MCD Primary School, near Bansiwala dhaba, Delhi, within the jurisdiction of Police Station Timar Pur, accused were found in possession 55 quarter bottles of bonnie scott and Murthan No 1 of liquor, without any licence or permit and in contravention of Delhi Administration Notification. Thereafter, both the accused were booked U/S 61/1/14 Excise Act.
2. That after completion of investigation the challan against the accused was filed on 05.07.2005 and the accused was summoned. The charge /s 61/1/14 Excise Act was framed against the accused on 14.07.2008 to which he pleaded not guilty and claimed trial.
STATE VS. BIRENDER KUMAR SHARMA FIR NO. 222/05 2/9
3. The prosecution has examined only four witnesses in order to prove their case.
4. The PW1 HC Satish Pal is the complainant. He deposed that on 12.05.2005, he was on patrolling duty and while patrolling at about 10:00 pm, he reached 25 foota road, Sanni bazar near Bansi Ka dhaba. There he noticed accused Virender Kumar Sharma was already known to him as he was a habitual bootlegger, was coming from the side of MCD Primary School, Jharoda road having a white coloured plastic sack on his hand. Accused on seeing him suddenly stooped and turned backward and started walking hastily. On suspicion he apprehended the accused after chasing 1520 steps and asked about the plastic sack but he could not give any satisfactory answer. He checked the plastic sack and it was found containing quarter bottles of illicit liquor. He delivered this information at the police post and after some time HC Rawat Singh alongwith Ct Ramesh Kumar reached at the spot. He handed over the accused alongwith recovered illicit liquor to IO HC Rawat Singh. IO recorded his statement Ex PW 1/A. IO requested some passerby to join the investigation but all refused on personal ground and left the spot without disclosing their names and addresses. IO checked the plastic sack and it was found containing 30 quarter bottles of Bonnie Scot Malted Whiskey and 25 quarter bottles of Murthal No. 1 Masaladar Desi Sharab. IO separated two quarter bottles from each brand for sample and sealed the same with the seal of RSY. Remaining quarter STATE VS. BIRENDER KUMAR SHARMA FIR NO. 222/05 3/9 bottles put back in same plastic sack and plastic sack was sealed with the seal of RSY. Form M29 was filled at the spot. Seal after use was handed over to him. Case property was seized vide seizure memo Ex PW 1/B. IO prepared rukka and handed over the same to Ct. Ramesh Kumar who went to police station and got the case registered and came back with original rukka and copy of FIR and handed over the same to IO. IO prepared the site plan at his instance. Accused was arrested vide arrest memo Ex PW 1/C and his personal search was conducted vide memo Ex PW 1/D. His supplementary statement under section 161 CrPC was recorded by the IO.
5. The PW2 ASI Ved Pal is the duty officer. He deposed that on 12.05.2005 he received rukka and on the basis of which, he registered FIR, which is Ex PW 2/A.
6. The PW3 ASI Yash Pal is the MHC (M). He deposed that on 12.05.2005 HC Rawat Singh had deposited with him one plastic katta sealed with the seal of RSY alongwith four sample quarter bottle and Form M29 was also bears seal impression of RSY and same were deposited by him in Malkhana and entry was made in register No. 19 at serial No. 97/21. On 07.06.2005 the chemical analysis result was obtained through Ct. Shamsher Singh and same was sent to HC Rawat Singh through Ct. Ram Naresh. The photocopy of the relevant entry is Ex PW 3/A. STATE VS. BIRENDER KUMAR SHARMA FIR NO. 222/05 4/9
7. The PW4 HC Ramesh Kumar deposed that on 12.05.2005, he had joined investigation in the present case alongwith IO HC Rawat Singh and had accompanied him to Banshi Wala Dhaba near MCD Primary School, Jharoda Road, Delhi. There Ct. Satish Pal met them who had handed over accused alongwith one white plastic katta containing quarter bottles of illicit liquor to IO. IO requested some passersby to join the proceedings but none had agreed. Thereafter, the plastic katta was checked and it was found containing thirty quarter bottles of Bonnie Scott Special Malted Whisky for sale in Haryana only and 25 quarter bottles of Murthal No. 1 Masaleder Deshi Sharab for sale in Haryana only. IO separated two quarter bottles of each brand for sample and sealed with the same with the seal of RSY. Remaining quarter bottles were put back in the same plastic katta and plastic katta was sealed with the seal of RSY. Form M29 was filled at the spot. Seal after use was handed over to Ct. Satish Pal. Case property was seized vide seizure memo is Ex. PW1/B. IO prepared Rukka and handed over the same to him. He went to the police station got the case registered and returned to the spot with copy of FIR and original Tehrir and handed over the same to IO. IO prepared the site plan. Accused was arrested. Arrest memo and personal search memo in this regard are Ex. PW1/C and Ex. PW1/D. Accused was released on bail on producing surety. His statement was recorded by the IO.
8. That on 21.10.2011 prosecution evidence was closed as the matter was pending for prosecution evidence since the year 2008 and STATE VS. BIRENDER KUMAR SHARMA FIR NO. 222/05 5/9 prosecution failed to secure the presence of all the material witnesses. Thereafter on 22.12.2011 the statement of the accused was recorded wherein he denied all the allegations and denied that recovery of liquor was effected from him. No defence evidence was led by the accused persons.
9. I have heard the Ld. APP for the State, Ld. counsel for accused and gone through the record.
10.The only offence under which the accused person has been charged is u/s 61/1/14 Excise Act for the possession of 55 quarter bottles of illicit liquor, without any licence or permit and in contravention of Delhi Administration Notification.
11.The only material recovery witnesses who have been examined by the prosecution is PW1 HC Satish Pal who is the complainant deposed that he was on patrolling duty and while patrolling at about 10:00 pm, he reached at 25 foota road, were the accused was apprehended alongwith case property. The PW4 HC Ramesh Kumar and IO HC Rawat Singh can not be termed as recovery witness as they reached at the spot of recovery subsequent to the recovery of liquor. No real effort was made by the said witnesses or by the IO in joining the public persons as witness as is clear from the testimony of PW1 and PW4. It is admitted fact that the recovery was effected in the evening and the place of recovery is a crowded area. Thus the explanation STATE VS. BIRENDER KUMAR SHARMA FIR NO. 222/05 6/9 given by PW1 and PW4 of no public witness joined them can not be believed. In these circumstance his testimony can not be termed as reliable. Further no explanation has been given as to the handing over of the seal and subsequent return. The seal was handed over to police witness namely PW 1. Thus the possibility of misuse of seal also can not be ruled out. The case property was produced in unsealed condition on 03.07.2010. Thus the possibility of the tampering with the case property also can not be ruled out. The above said facts creates doubt with respect to recovery effected from the accused.
12.It is admitted fact that the document Ex. PW 1/B was prepared prior to registration of FIR. The perusal of the same shows that document carries the FIR No. upon it. This issue of FIR no. on the documents prepared before registration of FIR came up before the Hon'ble Delhi HC in the case titled as Pawan Kumar Vs. Delhi Admn 1987 CC Cases 585 wherein Hon'ble High Court observed that the mentioning of FIR number on the recovery memo which was prepared prior to lodging of FIR creates a doubt and the benefit should go to the accused. In the present case in hand also no explanation has been offered as to the presence of FIR No. on seizure memo Ex. PW 1/B. This fact also creates a doubt in the prosecution version.
13.The another fact which requires consideration is the presence of the recovery witnesses at the spot. PW1 Ct. Satish Pal deposed that he was on patrolling duty and while patrolling he was present in the area STATE VS. BIRENDER KUMAR SHARMA FIR NO. 222/05 7/9 of 25 foota road, Shanni bazar, near Bansi ka dhaba. He was apprehended the accused alongwith one plastic can. But no evidence has been led by the prosecution which can prove his presence at the spot. No DD entry or duty roaster has been filed by the prosecution which could show his presence at the relevant time and place. This fact assumes much importance when seen in the context that all the material witnesses in the present case are police officials. The benefit for the same has to be given to the accused.
14.It is a cardinal principal of criminal law that the prosecution has to prove their case against accused beyond reasonable doubt and benefit of the doubt has to be given to the accused. All these facts leads to one conclusion that the prosecution has miserably failed to prove their case against the accused and benefit for the same has to be given to the accused.
15. In view of the above discussed reasons, the accused Birender Kumar Sharma is acquitted u/s 61/1/14 Excise Act. Bail bonds and surety bond stands discharged. File be consigned to Record Room.
(Announced in the open court)
Dated: 03.10.2012 (GAGANDEEP SINGH)
MM01/NORTH
TIS HAZARI : DELHI
STATE VS. BIRENDER KUMAR SHARMA
FIR NO. 222/05
8/9
CC/FIR No. 222/05
P.S. TIMAR PUR
STATE VS. BIRENDER KUMAR SHARMA
03.10.2012
Present: Ld. APP Sh. Manan Munjal for the State.
Accused in person alongwith Ld. counsel.
Final arguments heard.
Vide my separate detailed judgment of the even date the
accused Birender Kumar Sharma is acquitted for the offence u/s
61/1/14 Excise Act. Accused wishes to adopt the previous bail bond and surety bond. Previous bail bond and surety bond adopted for the purpose of Section 437A of Cr.PC. They shall remain valid for period of six months from today. Original documents returned as per rules.
File be consigned to Record Room.
(GAGANDEEP SINGH) MM01/NORTH DELHI 03.10.2012 STATE VS. BIRENDER KUMAR SHARMA FIR NO. 222/05 9/9