Delhi District Court
Relied Upon The Cases Of Hoshiar Singh vs . State Of Haryana, on 24 May, 2013
IN THE COURT OF SHRI NARESH KUMAR LAKA
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS, DELHI
FIR No.349/06
U/Sec. 61/1/14 Excise Act
PS Rajouri Garden
(a) ID number of the case : 02401R0670712009
(b) Date of commission of the : 09.04.2006
offence
(c) The name of the complainant : Ct. Virender Singh
(d) The name of the accused : Sanoj Kumar S/o Sh.
person, his parentage and Ram Prashad
residence
(e) The offence complained of : Under Section 61 (1)
Punjab Excise Act.
(f) The plea of the accused : Pleaded not guilty
g) The final order : Convicted
(h) The date of such order : 24.05.2013
Challan was filed on:15.11.2006
Final arguments were heard on:18.05.2013
Judgment is announced on:24.05.2013
FIR No.349/06 PS Rajouri Garden Page 1 of 11
JUDGMENT
Brief Facts: It is the case of prosecution that on 09.04.2006 at about 5.30 pm in a park in front of house no.B19A, DDA Flats, Shivaji Enclave, New Delhi, accused Sanoj Kumar was found in possession of ten carton boxes each containing 48 quarters of illicit liquor without any permit and license in contravention of the provisions of Punjab Excise Act, 1914. The case was registered and after completion of investigation, which includes seizure of case property, sealing of case property, arrest of accused, sending the samples of illicit liquor to Excise Laboratory, etc. the final report was filed alleging offence under Section 61(1) of the Punjab Excise Act, 1914.
2. On the basis of material on record, a charge for the offence under Section 61 (1) Punjab Excise Act was framed against him to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined total 04 witnesses and their depositions, in brief, are as under:
DEPOSITION OF PROSECUTION'S WITNESSES
3. PW1 HC Bhagwati Prasad being Duty Officer proved FIR as Ex.PW1/A. FIR No.349/06 PS Rajouri Garden Page 2 of 11
4. PW2 Ct. Virender deposed that on 09.04.06 at about 5.30 pm, when he was patrolling at Shivaji Enclave Park, he noticed a person sitting in the corner of a park in front of house No.B19A and the said person was arranging some gatta pettis. On seeing him, he became nervous. On suspicion, he entered inside the park and asked regarding the gatta petties but the said person could not give satisfactory answer. Thereafter the PW2 checked the said gatta paties which were 10 and the same were found containing quarter bottles of Illicit liquor. The name of person/accused was disclosed as Sanoj. He informed the same to police post Raghubir Nagar, IO HC Amit Kumar reached at the spot on his call. He handed over accused along with recovered gatta petties to the IO.
5. PW3 HC Amit Kumar deposed that on 09.04.06, after receiving the DD No. 18 PP Raghuvir Nagar, he reached the spot i.e. in front of B19A, Shivaji Park, DDA Flats, Rajouri Garden, Delhi where Ct. Virender handed over the accused Sanoj and the recovered liquor i.e. 10 petties of Samalkha No. 1 to him. Thereafter he counted the quarter bottles and each carton/peti was found containing 48 quarter bottles. He took out one quarter from each carton as sample and remaining quarter bottles were put in the respective petties. The sample and the cartons were sealed with the seal of AK. Seal after use was handed over to Ct. Virender. Thereafter he prepared the seizure FIR No.349/06 PS Rajouri Garden Page 3 of 11 memo (Ex. PW2/B), filled up Form M29, recorded the statement of Ct. Virender, prepared the rukka (which is Ex. PW3/A) and got the FIR registered, prepared site plan at the instance of the Ct. Virender, arrested the accused and deposited the case property in the Malkhana.
6. PW4 Ct. Hari Darshan deposed that on 18.04.2006, on the instruction of the IO, he collected the samples of this case from the MHC(M) and deposited the same at the Excise Laboratory vide RC No. 126/21/06. Till the time samples remained in his possession, they were neither tempered by him nor by anyone else.
DEFENCE OF THE ACCUSED
7. In the statement recorded under Section 313 Cr.P.C., the accused denied all the entire incriminating evidence put to him and he simply stated that he was falsely implicated in this case by the police.
8. I have heard Assistant Public Prosecutor for the State and counsel for the accused at length. File perused.
APPRECIATION OF EVIDENCE AND REASONS FOR DECISION FIR No.349/06 PS Rajouri Garden Page 4 of 11
9. In the list of witnesses, the prosecution cited total five witnesses out of which it examined four. The prosecution's evidence was closed as the case was old.
10. At the outset, the counsel for the accused vehemently argued that the prosecution did not prove the possession of the illicit liquor from the custody of the accused. In this regard, he relied upon the cases of Hoshiar Singh Vs. State of Haryana, 2008(3) RCR (Criminal) 683; Dharam Singh Vs. State of Punjab, Criminal Appeal no.573SB of 2000 D/d6.5.2008 and State of Punjab vs. Balkar Singh & Anr. 2004(3) Supreme Court Cases 582 wherein it was held that:
"The fact that the accused was found sitting on bags containing poppy husk. He failed to give any satisfactory explanation for being present at that place. The Apex Court ruled that merely by being found to be present at the place where the poppy bags were found and the failure to give any satisfactory explanation for being so present, did not prove that the accused persons were in possession of said poppy bags and that in fairness, the police should have conducted further investigation "as to transportation of poppy bags to the place of incident, ownership of the poppy etc." to prove that the accused was really in possession of the said articles.
11. On the contrary, the Ld. APP for the State submitted that the abovesaid observation is only obiter dicta and the FIR No.349/06 PS Rajouri Garden Page 5 of 11 accused persons were acquitted in abovecited cases on the basis of various other grounds. I have carefully gone through the above said cases. In the instant case, the accused was apprehended while he was arranging some gatta petties which were containing illicit liquor. There is a difference on the two sets of conditions i.e. sitting on a plastic bag and arranging the gatta petties. In the former case, it can be assumed that the person was sitting idle unmindful of the fact that the plastic bags contained illicit liquor whereas in the latter case, the mental state of the accused is reflected from the fact that he was involved in an activity of arranging said boxes and under these circumstances, it cannot be said that the accused was merely playing with them without knowing the fact that they contained illicit liquor. The quantity of illicit liquor of ten boxes is also very huge and no single person can possess them physically. Further, the boxes/petties which contained illicit liquor also have distinct identification which distinguishes them from the other ordinary commodities. Thus I hold that the facts of the present case are distinguishable from the aforesaid cited cases and the accused was in conscious possession of the illicit liquor.
12. It is further argued by the counsel for the accused that the place of incident was an open place being a public park and the time was 5.30 pm and, as such, the accused cannot be said to possess such a huge quantity of illicit liquor in broad day FIR No.349/06 PS Rajouri Garden Page 6 of 11 light. In my opinion, the said argument is based on mere assumption and hypothesis and not based on experience of occurrences of criminal cases. Any crime can be done at any time and moreover in the instant case, the prosecution's witnesses clearly deposed that the accused was found present in the corner of park. This is also depicted in the site plan and accordingly this argument is without any force.
13. It is first argued by the counsel for the accused that the prosecution did not examine the MHC(M) and, as such, the link evidence is missing and in this regard he relied on the case of State of Rajasthan vs. Daulat Ram, 1980 CC Cases 83. I have carefully gone through the said case and the facts of the said case are distinguishable to the facts of present case. No doubt, the prosecution did not examine the MHC(M) but the record reveals that the prosecution's evidence was closed as the matter was very old. There is no statement under Section 161 Cr.P.C. of the MHC(M) on record and this fact shows that the prosecution cited MHC(M) as an official witness just to bring case property in the court and when the case property was produced and proved in court, the nonexamination of MHC(M) is not fatal. Further, the PW3 HC Amit Kumar is the I.O. of the instant case and he specifically deposed that he seized the case property and the sample property, filled up the Form M29, got the same deposited in the malkhana. The PW4 Ct. Hari Darsh is very FIR No.349/06 PS Rajouri Garden Page 7 of 11 material witness and he deposed that on 18.04.2006, on the instruction of I.O., he took the samples of this case and deposited the same to the Excise Laboratory vide RC No. 126/21/06. He further specifically deposed that the samples were not tampered till the time the same remained in his possession. In view of the above evidence on record, I am of the opinion that the cited case is distinguishable from the facts of the present case and no linking evidence is missing, as argued by the defence counsel.
14. The counsel for the accused next argued that in the instant case major portion of the case property was ordered to be deposited to the District Nazir for disposal/confiscation but no opportunity was given to the counsel for the accused or the accused before obtaining permission from this court and before depositing the same with the office of District Nazir. The prosecution proved on record an order of this court as Ex. P2. The said order was passed at the instance of SHO PS Rajouri Garden when a request was made for disposal of the bulk of the case property by relying on the instructions issued vide Delhi Administration letter No.F13/10/80/Home (P) Estt. Delhi Administration, Delhi Home Police Extt. (1) Department dated 23rd September, 1988 and letter No.4870548965ii Delhi, dated 28.11.2001 by Shri M.L. Malhotra, District Sessions Judge, Delhi wherein it was stipulated that where bulk case property consists FIR No.349/06 PS Rajouri Garden Page 8 of 11 of illicit liquor, the major portion of the same should be ordered for confiscation/disposal by retaining their samples as the space to keep such property are very limited. Accordingly, the order Ex.P2 was passed in compliance with the guidelines of the said orders/letters. Even otherwise, the prosecution's witnesses correctly identified the case property from the samples which were produced in court and in my opinion. They have also proved the fact that the same was seized from the possession of accused. I also find support from the case of Ranjodh Singh vs. State of Punjab, 1989 Cr.L.J. 1993 [MANU/PH/0649/1989] relied by the Ld. APP for the state wherein it was held:
"The petitioner had not given any plausible explanation as to in what situation he happened to be driving car in which 10 bladders containing illicit liqour were found in 3 separate gunny bags, that was 2 gunny bags on the back seat and one gunny bag near the front seat just on the left hand side of petitioner - There could be no other conclusion except that petitioner was carrying quantity of illicit liquor in his own car - Non production of the case property during trial, in the circumstances of the case, could not be fatal - Conviction of the petitioner was upheld."
15. The Ld. APP for the state further relied on the case of Balraj Singh vs. The State of Punjab 1982 CrLJ 1374 wherein it was held that "When the Section 451 Cr.P.C. itself visualises and sanctifies the nonproduction of case property in the trial, can it FIR No.349/06 PS Rajouri Garden Page 9 of 11 then reasonably be said that a mere inadvertence or omission in producing the same and not exhibiting it in court, would per se be fatal to the prosecution case. I do not think so."
16. The counsel for the accused also argued that the case property was produced in unsealed condition in the court at the time of evidence. In this regard, the Ld. APP clarified that the case property was unsealed as the seal was broken and opened as major part of the case property was sent to District Nazir as per order of this court for disposal/confiscation.
17 It is further argued by the counsel for accused that the prosecution did not produce or prove the form M29 in the instant case. No doubt, from the perusal of file, it is clear that the form M29 has not been placed on record. But in my opinion, in the present case, what is required to be proved is the factum of possession of illicit liquor from the accused. The form M29 is one of the pieces of evidence. The same is required to be filled up at the time of seizure of case property. Now the question is whether the same was filled up as per the mandate of law or not. The PW3 clearly deposed that he filled up the form M29. The PW4 proved the fact of deposit of sample property to the Excise Laboratory. The excise laboratory is per se admissible in evidence as per Section 293 Cr.P.C. and as such, the content of such report are also admissible in evidence. The report of excise FIR No.349/06 PS Rajouri Garden Page 10 of 11 laboratory finds mentioned the reference of deposit of form M29. Thus, the above oral as well as documentary evidence prove the fact that the Form M29 was filled up and deposited to the Excise Laboratory although the copy of the same was not placed on record, maybe due to some inadvertence. Under these circumstances, the fact of nonfiling of form M29 in court is not fatal.
18. In the light of aforesaid facts and circumstances, I hold that the prosecution proved the essential ingredients of the alleged offence. Accordingly, accused Sanoj is convicted for the offence under Section 61(1) of the Punjab Excise Act, 1914.
Announced in the open court on 24.05.2013 (Naresh Kumar Laka) Metropolitan Magistrate (West), Tis Hazari Courts, Delhi FIR No.349/06 PS Rajouri Garden Page 11 of 11