Delhi District Court
State vs . Subhash on 14 July, 2011
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 293/02
P.S. Malviya Nagar
U/s 61/1/14 Excise Act
State Vs. SUBHASH
JUDGMENT :
a. Sl. No. of the case : 139/3
b. Date of Institution : 28.08.2002
c. Date of Commission of Offence : 07.04.2002
d. Name of the complainant : HCt. Om Prakash
No. 115/SD
e. Name of the accused and his : Subhash
parentage and address S/o Sh. Babu Lal
R/o H.No.60, Madangir Village,
New Delhi.
f. Offence complained of : U/s 61/1/14 Excise Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 15.07.2011
i. Final Order : Acquittal
j. Date of such order : 15.07.2011
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. 293/02 Page 1 of 9 PS Malviya Nagar
2. The facts in brief are that on 7.04.2002 at about 4.30 pm while HCt. Om Prakash along with Ct. Ramesh Kumar were present at DDA Flats, Lado Sarai he received secret information regarding on person who would come along with illicit liquor from the side of Aurobindo Marg so he organised a raiding party and took position at T Point Lado Sarai and apprehended the accused who was carrying a can, on the pointing out of secret informer and on checking of can it found containing liquor which on measuring comes to 20 liters so tehrir was prepared and present case FIR no. 293/02 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 22.03.2004 U/s. 61 (1) (a) 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 four witnesses i.e. Ct. Ramesh Kumar as PW1, HCt. Ranvir Singh as PW2, HCt. Om Prakash as PW3 and Retd. SI Brij Kishore as PW4.
5. PW1 Ct. Ramesh Kumar has testified that on 7.04.2002 he was present at DDA Flats Lado Sarai along with HCt. Om Prakash and one secret informer head given FIR no. 293/02 Page 2 of 9 PS Malviya Nagar information that a person wearing white shirt and pant of blue color will come from the side of Aurobindo Marg and will go to Madangir who is in possession of liquor. HCt. Om Prakash arranged a raiding party and asked 23 persons to join but none agreed and left the spot. Then they made a nakabandi at T Point of Aurobindo Marg,Lado Sarai and at about 4.30 pm one person had come carrying a plastic can of white color. He further testified that he will not be able to identify the said person and cannot say whether he is present in the court. The can was found smelling liquor and it was measured by pouring it into a bucket with help of bottle of 750 ml., it come to 20 liters. One bottle was taken as sample and remaining poured back into the cane which was sealed with the seal of TR, seal after use was given to him. IO prepared tehrir and he got the case FIR registered and handed over the original rukka and copy of FIR to IO and cane was deposited in the malkhana. Personal search of accused was conducted for which personal search memo was prepared. PW1 identified the plastic can as Ex.P1.
Ld. APP cross examined PW1 as he resiled from his statement given to the police wherein he testified that HCt. Om Prakash recorded his statement and seizure memo Mark A and arrest memo of accused is Mark B both bears his name but does not have his signatures. Accused is shown to the witness whom he identified as the person who was arrested by them and from whose possession plastic can was recovered.
During cross examination by Ld. APP PW1 has deposed that secret informer gave information at about 4.15 pm personally and they left the spot at about 5.45 or 6.00 pm. They were on the two wheeler scooter during petrolling and he had returned the seal to HCt. Om Prakash on the same day in the police chowki after depositing the case property and he does not remember whom the said seal belonged. He denied the FIR no. 293/02 Page 3 of 9 PS Malviya Nagar suggestion that nothing was recovered from the accused.
6. PW2 HCt. Ranvir Singh has testified that on 7.04.2002 on receipt of rukka from Ct. Ramesh he recorded formal FIR Ex.PW2/A and put his endorsement on rukka Ex.PW2/B. During cross examination PW2 has deposed that Ct. Ramesh came to him for registration of the case at about 6.30 pm.
7. PW3 HCt. Om Prakash has testified that on 7.4.2002 he along with Ct. Ramesh wereon patrolling duty at DDA Flats, Lado Sarai where at about 4.20 pm one secret informer informed him that one person will come with the illicit liquor can from the side of Aurobindo Marg Theka and will go towards Madangir so he asked few public persons to be a witness but none agreed so he organised a raiding party and took position at T Point Lado Sarai. At about 4.30 pm accused along with one white plastic can on his right shoulder came there and was stopped at the pointing out of secret informer and on checking the cane it was found containing liquor and on measuring it found to be 20 liters liquor in the cane. He took one bottle of 750 ml. as sample and poured remaining liquor into the can. He separately sealed the can and bottle with seal of TR and after use seal was handed over to Ct. Ramesh and he also filled up Excise Form at the spot itself and took into possession the same vide memo Ex.PW3/A. He prepared rukka Ex.PW3/B and handed over same to Ct. Ramesh for registration of the case and thereafter investigation was assigned to SI Brij Kishore who came at the spot whom he handed over all the documents along with accused Subhash. IO prepared the site plan at FIR no. 293/02 Page 4 of 9 PS Malviya Nagar his instance. PW3 also identified the can of liquor as Ex.P1.
During cross examination PW3 has deposed that there were two persons in the raiding party and nobody else was with them and secret informer identified the accused first who was not present at the spot and at the time of apprehension of accused public persons refused to join and he measured with the plastic mug and he got the mug and bucket from the jhuggi nearby but he does not remember the name of jhuggi owner and accused was wearing white color shirt and dark blue color pant.
8. PW4 Retd. SI Brij Kishore has testified that on 7.4.2002, further investigation of this cse was assigned to him so he along with Ct. Ramesh reached at Aurobindo Marg T Point, Lado Sarai DDA Flats, New Delhi where HCt. Om Prakash met him and handed over the accused along with plastic cane, sample and form excise and seizure memo sealed with the seal of PR. He prepared site plan at the instance of HCt. Om Prakash. Accused was arrested and his personal search was conducted vide memo Ex.PW4/A and he also deposited the sample at Excise Lab, ITO. PW4 further testified that Excise result of samples could not be collected.
Accused did not prefer to cross examine this witness.
9. 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 falsely implicated in this case.
FIR no. 293/02 Page 5 of 9 PS Malviya Nagar
10. 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.
11. 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. There are a number of contradictions in their evidence. PW2 is a formal witness being DO who recorded present case FIR Ex.PW2/A. Material witnesses of prosecution are PW1 and PW3 as recovery of illicit liquor was effected in their presence and PW4 is second IO who came at the spot after registration of case FIR. PW1 who is one of the recovery witness in his testimony clearly deposed that he will not be able to identify the accused and he cannot say whether he is present in the court and as he he turned hostile Ld. APP cross examined him and shown him the accused, then only he identified the accused as the person from whom the knife was recovered and he has also not deposed regarding recording of his statement by the IO/PW3 and he also not deposed a single word regarding seizure of the case property/knife and arrest of accused by the IO /PW3 in his examination in chief. This fact is also come in light during his cross examination by Ld. APP that only name of PW1 is written on seizure memo and arrest memo of accused but his signatures are not there which clearly shows that these documents are not prepared in his presence.
12. Further PW3/first IO deposed that accused was arrested on the pointing out of secret informer but PW1 has not deposed so. PW1 has deposed that after FIR no. 293/02 Page 6 of 9 PS Malviya Nagar registration of case he returned back to the spot and handed over the original rukka and copy of FIR to HCt. Om Prakash/PW3 but PW3 has not deposed so but testified that after registration of case FIR investigation was assigned to SI Brij Kishore/PW4 who came at the spot to whom he handed over all the documents prepared by him along with accused and case property. Interestingly, PW4/second IO has deposed that after registration of case he along with Ct. Ramesh reached at the spot where HCt. Om Prakash met him but PW1 has not deposed regarding PW4 accompanying him to the spot. Thus, these contradictory statements of PWs are not reliable and cannot be considered for the purpose of conviction of the accused.
13. It is pertinent to mention here that PW4/second IO of this case has deposed during his examination in chief that he deposited the sample at Excise Lab, ITO but result could not be collected. In absence of Excise Result it cannot be said or prove that the can which was carried by the accused as per prosecution story was containing liquor.
14. However, 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.
FIR no. 293/02 Page 7 of 9 PS Malviya Nagar
15. 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 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.
16. Again, there is nothing on record to prove that the seal with which the recovered can containing the illicit liquor or sample bottle was sealed was handed over to any independent witnesses after use. PW1 during his cross examination also testified that he does not know whom the seal TR with which the can and sample bottle of liquor was sealed belonged. In such circumstances possibility of tampering with contents of sealed can/sample 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.
17. Moreover, no DD entry in respect of Ct. Ramesh, PW1 and HCt. Om FIR no. 293/02 Page 8 of 9 PS Malviya Nagar Prakash, PW3 is proved on record to establish that they were actually present in the area at the relevant time in connection with their duty in the relevant 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.
18. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
19. 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 Subhash is acquitted for the offence punishable U/s. 61 (1) (a) of Excise Act for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 15.07.2011 Metropolitan Magistrate
South District/New Delhi
FIR no. 293/02 Page 9 of 9
PS Malviya Nagar