Delhi District Court
State vs . : Sunil Kumr on 21 October, 2011
IN THE COURT OF SH. CHANDER JIT SINGH : MM: ROHINI : DELHI
State Vs. : Sunil Kumr
FIR No. : 729/96
U/s : 61/1/14 Excise Act
PS : S P Badli
JUDGEMENT
A. Sl. No. of the case 66/3
B. Offence complained of
or proved U/s 61/1/14 Excise Act
C. Date of Offence 16.09.1996
D. Name of the complainant HC Rajveer Singh
No.413 North West,
PS Samay Pur Badli.
E. Name of the accused Sunil Kumar @ Sunil
S/o Sh. Babu Lal
R/o House No.338, K-Block,
J.J. Colony, Sakkar Pur,
PS Saraswati Vihar, Delhi
F. Plea of the accused Pleaded not guilty.
G. Final order Acquitted
H. Date of Order 21.10.2011
Brief reasons for the decision:
1. Accused has been forwarded to face trial under Section 61/1/14 Excise Act on the allegations that on 16.09.1996, at about 6:00 PM, secret informer informed that a young boy FIR No. 729/96 State Vs Sunil Kumar 1 of 5 aged 20-25 years is carrying liquor in heavy quantity from Sector-18 to Wednesday Market Road and may be apprehended if raid is conducted. 4-5 passersby were asked to join the investigation but all of them left without disclosing their names. Without wasting time raiding party was prepared. On pointing out of secret informer, the accused was apprehended who was coming from Sector-18 and was carrying a light red colour plastic bag on his right shoulder. On checking, the name of the person was revealed as Sunil Kumar and the plastic katta was found to contain liquor which came out to be 50 pouches on counting. On these pouches, Masala Desi Sharab in Hindi was written. They were given number from 1 to 50. Pouches bearing no.1, 10,20, 30, 40 and 50 were taken out as sample. The remaining liquor was poured in the plastic katta and the opening of same was closed and sealed with the seal of 'RSS'. Form No.M-29 was filled. The tin in which the sample liquor was contained was also seized. Rukka was sent for registration of the case and the present FIR bearing No. 729/96 was lodged. After that statements of witnesses were recorded, site plan was prepared. On completion of investigation, the present chargesheet was filed.
2. After procuring the presence of the accused and supplying him the copies of chargesheet alongwith annexing documents, charge under Section 61/1/14 Punjab Excise Act was framed against him to which he pleaded not guilty and claimed trial. Thus, the prosecution led evidence.
3. The prosecution has examined four witnesses to demonstrate the guilt of accused. ASI Mam Chand was examined as PW-1. He has deposed to the effect that he released the FIR No. 729/96 State Vs Sunil Kumar 2 of 5 accused on bail as accused had produced the surety on that day. Ct. Krishan Kumar was examined as PW-2. He proved the proceedings carried out during investigation. He proved the memo vide which vehicle was seized as Ex.PW-2/A ; arrest memo and personal search memo as Ex.PW-2/B. He proved the plastic bag duly sealed with seal of 'RSS' containing 46 pouches as Ex.P1. ASI Puran Chand was examined as PW-3. He proved that on 16.09.1996, HC Rajbir deposited a pullinda, a katta, one sample and Form M-29 with the seal of 'RSS'. The same was deposited vide Entry in Register No.19 which is Ex. PW-3/A. On 20.09.1996, the seal was handed over to Ct. Rajbir Singh vide RC No.194/21. The seal remain intact with him. HC Fateh Singh was examined as PW-4. He proved the fact of recording the FIR and copy of same is Ex.PW-4/A. He proved endorsement on rukka as Ex.PW-4/B. No other PW was examined. All these witnesses were not cross examined despite opportunity.
4. After conclusion of evidence, statement of accused was recorded under Section 313 Cr. PC wherein accused pleaded innocence and stated that he has been falsely implicated in the present case, however, he preferred not to lead any DE.
5. I have heard the rival contentions of both the parties and carefully perused the record. In the present matter, none of the prosecution witness has been cross examined which implies that the evidence led by prosecution remains unrebutted. The next question arises is the evidentiary/probative value of the evidence on record. PW-2 is the material witness who has deposed regarding the proceeding carried out during investigation. In his examination-in- chief he has stated that the plastic bag produced contain 46 pouches whereas earlier he FIR No. 729/96 State Vs Sunil Kumar 3 of 5 deposed that 50 pouches were recovered and out of them 6 were taken out as sample. In the present matter, fate of the seal is not disclosed. It has brought on record whether or not the seal was handed over after use, or whether the same was deposited with MHC(M). The effect of same is that tampering with case property cannot be ruled out specially when there is a discrepancy as noted above.
Further, no public witness has been joined. In Roop Chand V/s The State of Haryana, 1999 (1) C.L.R. 69, the Hon'ble Punjab & Haryana High Court as under :-
It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate them- selves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask any body to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining of the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
Though the site plan has not been proved, however, the reference of same shows existence of residence near the spot but not public witness is joined. The police FIR No. 729/96 State Vs Sunil Kumar 4 of 5 witness cannot be disbelieved per se but in view of the serious anomaly qua the liquor recovered, seized and preserved, non joinder of public witness only aggravates the suspicion.
Further, all the documents contain the FIR No. though it is stated they except site plan was prepared prior to registration of FIR and this act remains unexplained. Another aspect is that majority of investigation is conducted by complainant himself only. The combined effect of discussion on probative value of evidence is that despite the fact that evidence of prosecution remains unrebutted, the version of prosecution remains doubtful. Hence, giving the benefit of doubt to accused, he is acquitted of the offence under Section 61/1/14 Excise Act.
Announced in open Court (Chander Jit Singh)
on this day of 21st October, 2011 Metropolitan Magistrate
Rohini Courts, Delhi
FIR No. 729/96 State Vs Sunil Kumar 5 of 5