Delhi District Court
State vs . Ram Tikaya on 12 November, 2010
FIR No. 201/99
PS: Adarsh Nagar
S/v Ram Tikaya
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE: ROHINI COURTS: DELHI
FIR No. 201/99
PS: Adarsh Nagar
State Vs. Ram Tikaya
C. No. 232/99
U.ID No. 02401R0088781999
Date of Institution : 17/08/99
Name of the complainant HC Baljit Singh
Name and address of the accused : Ram Tikaya s/o Sh. Ram
Ditta Mal, r/o A-140, Indra
Vihar, Delhi.
Offence complained of : 61/1/14 Excise Act
Plea of accused : Pleaded not guilty
Final order : Acquittal
Date of reserve for orders : 12/11/10
Date for announcing the orders : 12/11/10
Brief Reasons for the judgment :
Vide this Judgment, I shall dispose off the case FIR No. 201/99
1.Charge U/S 61/1/14 Punjab Excise Act IPC was framed against the accused with the allegations that on 01.04.99 at about 02.15 AM at House No. 140, Gali No. 8, Adarsh Nagar, accused was found in C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 1 of 8 FIR No. 201/99 PS: Adarsh Nagar S/v Ram Tikaya possession of 110 poly pouches of illicit liquor of Aristocrat Finest Indian Whiskey and Diplomat World Class Whiskey without any permit or licence. The accused pleaded not guilty and claimed trial.
2. In order to prove the charge, prosecution examined four witnesses in total. PE stood closed on 16.10.2010. Statement of accused U/S 313 CrPC R/W Section 281 CrPC was recorded wherein accused claimed his innocence and did not prefer to lead any DE. Final arguments have been heard. Record has been carefully perused.
3. I shall briefly touch upon the statement of PWs.
4. PW1 SI Suresh Kumar proved the carbon copy of FIR as Ex.PW1/A.
5. PW-2, ASI Om Parkash was on patrolling along with HC Baljit Singh/IO, supported the prosecution case qua his investigation part along with IO.
6. PW-3 HC Jileshwar supported the prosecution case qua his C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 2 of 8 FIR No. 201/99 PS: Adarsh Nagar S/v Ram Tikaya investigation part and deposed that on 01.04.99 he along with IO on receiving a secret information apprehended the accused and deposed about the recovery of illicit liquor. He further deposed about seizure memo ExPW2/A. He further deposed that after preparation of rukka by IO it was handed over to Ct. Hansraj for getting the case registered and after having got the case registered Ct. Hansraj came back at the spot with HC Azad Singh who assigned further investigation. Accused was arrested and personally searched vide memos Ex.PW2/B & PW2/C respectively. Case property was deposited in the Malkhana and accused was released on bail. He identified the case property as Ex.P1.
7. PW-4 HC Baljit Singh is the IO in the present case, supported the prosecution case qua his investigation part and deposed on the lines of PW-3. He deposed about apprehension of accused, in possession of alleged case property / illicit liquor on relevant date, time and place as on the basis of the secret information he along with Constable Hansraj and Ct. Jileshwar Singh went to the spot. C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 3 of 8 FIR No. 201/99
PS: Adarsh Nagar S/v Ram Tikaya He then deposed about seizure memo Ex.PW2/A. He further proved form M-29 Ex.PW4/A and Tehrir Ex.PW4/B. He handed over the custody of the accused, case property and other relevant documents to the second IO HC Azad Singh who prepared the site plan at his instance. Second IO recorded his supplementary statement. Thereafter, he was relieved. He identified the bottles as Ex.P1 and bags as Ex.P2.
8. Having touched upon the statements of PWs. I shall consider the rival contention of parties. Accused has highlighted several infirmities in investigation which are being discussed hereunder along with the explanation therefore advanced by Ld. APP for the State.
9. It is firstly highlighted by accused that the IO has not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of accused and while completing the formalities at the spot but none of the public witnesses was even requested to become C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 4 of 8 FIR No. 201/99 PS: Adarsh Nagar S/v Ram Tikaya witness. This casts doubt about sincere efforts made by the IO to join independent witnesses. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it was observed that such explanation that the public persons refused to join the proceedings are unreliable and in Pradeep Narayan V/S State of Maharashtra reported in AIR 1995 S.C. 1930 held that failure of police to join witness from locality during search created doubt about fairness of the investigation benefit of which has to go to the accused.
10.It is settled proposition of law that Sub Section 4 of Section 100 Cr.P.C. is directory provision, however, explanation of non joining of independent witnesses should be plausible. The explanation put forward by the prosecution for non joining of independent witness appears to be implausible for reason that there was ample time with the IO at least to note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 5 of 8 FIR No. 201/99
PS: Adarsh Nagar S/v Ram Tikaya
11.It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant / IO HC Baljit even before registration of FIR. Since, he was present at the spot no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in the case titled as Megha Singh Vs. State of Haryana reported in 1995 Crl. L.J. 3988 and as held in the case titled as Sunil V/S State reported in 1999 (1) JCC 85 (Delhi) benefit of doubt is to be given to the accused.
12.It is also highlighted by accused that on the recovery Memo, the FIR number finds mentioned and it has not been explained by the prosecution. Admittedly, these documents were prepared before registration of FIR and it contains the FIR number, then interference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused. C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 6 of 8 FIR No. 201/99
PS: Adarsh Nagar S/v Ram Tikaya
13.It is next pointed out by accused that the seal was kept by the police officials themselves and was not handed over to any independent person and prosecution has also failed to prove that the case property remained intact and was not tempered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station.
14.All the lapses in investigation, discussed herein above creates a doubt on the very recovery of 110 poly pouches of illicit liquor of Aristocrat Finest Indian Whiskey and Diplomat World Class Whiskey from the possession of accused. The lapses are material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint then the entire prosecution case becomes open to serious doubts and challenges. The material is insufficient to record a finding of guilt of the accused and the safer course available is to acquit the accused giving him a benefit of doubt. In view of the above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. C/N. 232/99 Unique ID No. 02401R0088781999 Page No. 7 of 8 FIR No. 201/99
PS: Adarsh Nagar S/v Ram Tikaya
15.Accordingly, I acquit the accused Ram Tikaya for the offence U/S 61/1/14 Punjab Excise Act. The Bail Bond stands cancelled and surety for the accused stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to Record Room.
Announced in the Open Court (Neeraj Gaur)
Dated 12.11.2010 Metropolitan Magistrate-IV/NW
Rohini Courts, Delhi
C/N. 232/99
Unique ID No. 02401R0088781999 Page No. 8 of 8