Delhi District Court
State vs . Ramesh on 13 January, 2020
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 191/16
U/s 33 Delhi Excise Act
PS: Jahangir Puri
State vs. Ramesh
Date of Institution of case:11.07.2016
Date of Judgment reserved: 10.01.2020
Date on which Judgment pronounced: 13.01.2020
JUDGMENT
Case Number : 5296298 Date of Commission : 03.03.2016 of offence Name of the : Ct. Suresh complainant
Name and address of : Ramesh S/o Sh. Mool Chand R/o House no. 1841, C the accused. Block, Jahangir Puri, Delhi. Offence complained : 38 Delhi Excise Act of Plea of accused : Not guilty Final Order : Acquitted BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is that on 03.03.2016, at about 08:05 pm in front of house no. C1841, Jahangir Puri, Delhi within the jurisdiction of PS Jahangir Puri, accused Ramesh was found in possession of 34 FIR No. 191/16 State Vs. Ramesh Page 1 of 11 quarter bottles of Besto Whiskey and 15 quarter bottles of Impact Grain Whiskey illicit liquor without any permit or licence thus, according to prosecution, accused has committed offences punishable under Section 38 Delhi Excise Act. Further, accused was found unlawfully transporting the illicit liquor without permit. Thereafter, upon investigation statements of witnesses were recorded. Thereafter, an FIR was registered against the accused.
2. Investigation was completed and police report under section 173 Cr.P.C. was filed under sections 38 Delhi Excise Act of the prescribed duty, hence, accused also committed offence punishable u/s 38 Delhi Excise Act. Cognizance was taken and accused was summoned.
3. Copy of charge sheet and documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused Babita was framed under section U/s 38 of Delhi Excise Act by Ld. Predecessor vide order dated 07.01.2017. Accused pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution has examined three witnesses. FIR No. 191/16 State Vs. Ramesh Page 2 of 11
6. PW1 ASI Shailender has deposed that on 17.03.2016, he was posted at PS Jahangir Puri as MHCM. On that day, on the instruction of IO HC Jagjeet, he handed over sealed seal duly sealed with seal of JJ to Ct. Suresh vide RC no. 47/21/16. Ct. Suresh deposited the sealed sample at ITO, Vikas Bhawan and thereafter Ct. Suresh handed over to him one acknowledgement receipt. He brought original register no. 21 containing the RC no. 47/21/16. Copy of the same is Ex.PW1/A bearing his signature at point A. He was not crossexamined by Ld. defense counsel.
7. PW2 HC Jagjit deposed that on 03.03.2016, he was posted at PS Jh. Puri as HC. On that day, on receipt of DD No. 75B which is Ex. PW2/A, bearing his signature at point A, he went to the spot i.e. in front of house No. C1841, Jahangir Puri, Delhi where he met with the Ct. Suresh. Ct. Suresh handed over the custody of accused Ramesh and recovered liquor to him. He requested 45 public persons to joint the investigation but none of them agreed and left the spot without disclosing their names and addresses. On counting, 34 quarter bottles of illicit liquor were found of make Besto Whisky and 15 quarter bottles of illicit liquor were found of make impact grain whisky. He gave serial no. 1 to 34 to the quarter bottles of Besto Whisky and serial no. 1 to 15 to the quarter bottles of impact grain whisky. He took out 7 quarter bottles (5 quarter bottles of Besto Whisky and 2 quarter bottles of Impact Whisky) as FIR No. 191/16 State Vs. Ramesh Page 3 of 11 a sample. He prepared pullanda of sample quarter bottles and remaining liquor and sealed with the seal of JS. He also filledup form M29 at the spot, which is Ex. PW2/B, bearing his signature at point A. He seized the recovered liquor vide memo Ex. PW2/C, bearing his signature at point A. He recorded the statement of Ct. Suresh, whcih is Ex. PW2/D, bearing his signature at point A. He prepared rukka which is Ex. PW2/E on the basis of statement of Ct. Suresh and handed over the same to Ct. Suresh for registration of FIR. Accordingly, Ct. Suresh went to the PS and got registered the present FIR. After registration of case, Ct. Suresh came back to the spot and handed over the copy of FIR and original rukka to him. He prepared the site plan at the instance of Ct. Suresh, which is Ex. PW2/F, bearing his signature at point A. Thereafter, he served notice under Section 41A Cr. P. C. to the accused Ramesh which is Ex. as PW2/G, bearing his signature at point A. He also prepared the Pabandinama of accused which is Ex. as PW1/H, bearing his signature at point A. Accused was released on bail and case property was deposited in Malkhana.
He further deposed that on 17.03.2016, sample of case property was sent to Excise Laboratory, ITO for examination through HC Shailender. After receiving Excise Laboratory Result, he attached the same with the file. After completion of investigation, I filed the chargesheet before the Court for trial. PW 2 was cross examined by Ld. Defence counsel.
FIR No. 191/16 State Vs. Ramesh Page 4 of 11
8. PW3 Ct. Suresh deposed that on 03.03.2016, he was posted at PS Jh. Puri as Constable. On that day, he was on patrolling duty in the area of C Block, Jahangir Puri. At about 08:05 pm, he reached in front of house no. C1841, 1900 Wali Gali, Jahangir Puri. He saw accused Ramesh was sitting on the Charpaai having a red and black color bag in his hand. On seeing him in uniform, accused got afraid and when he asked about the bag accused could not give satisfactory answer. Without wasting time, he checked the bag and the bag found containing quarter bottles of illicit liquor. He gave the said information regarding the recovery of liquor to DO of PS Jahangir Puri. After some time, HC Jagjeet reached at the spot. He handed over the custody of accused Ramesh and recovered liquor to IO. IO requested 45 public persons to joint the investigation but none of them agreed and left the spot without disclosing their names and addresses. IO checked the bag and on counting, 34 quarter bottles of illicit liquor were found of make Besto Whisky and 15 quarter bottles of illicit liquor were found of make impact grain whisky. IO gave serial no. 1 to 34 to the quarter bottles of Besto Whisky and serial no. 1 to 15 to the quarter bottles of impact grain whisky. IO took out 7 quarter bottles (5 quarter bottles of Besto Whisky and 2 quarter bottles of Impact Whisky) as a sample. IO prepared pullanda of sample quarter bottles and remaining liquor and sealed with the seal of JS. IO also filledup form M29 at the spot, which is already Ex. PW2/B. IO seized the recovered liquor vide memo already Ex. PW2/C, bearing his signature at point B. IO recorded his statement, which is FIR No. 191/16 State Vs. Ramesh Page 5 of 11 already Ex. PW2/D, bearing his signature at point B. IO prepared rukka which is already Ex. PW2/E on the basis of his statement and handed over the same to him for registration of FIR. Accordingly, he went to the PS and got registered the present FIR. After registration of case, he came back to the spot and handed over the copy of FIR and original rukka to IO. IO prepared the site plan at his instance, which is already Ex. PW2/F. Thereafter, IO served notice under Section 41A Cr. P. C. to the accused Ramesh which is already Ex.PW2/G. IO also prepared the Pabandinama of accused which is already Ex. as PW1/H. Accused was released on bail and case property was deposited in Malkhana.
He further deposed that on 17.03.2016, he collected sample of case property from MHCM and deposited the same at Excise Laboratory, ITO for examination vide RC No. 47/21/16.Till the sample remained in my custody, no tampering was effected with the sample. This witness was cross examined by the Ld. Defence counsel.
09. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused to which she denied the allegations made against her and claimed herself to be innocent and pleaded that she has been falsely implicated in this case. Accused denied to lead any evidence in his defence and the FIR No. 191/16 State Vs. Ramesh Page 6 of 11 same was closed.
10. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and carefully perused the record.
11. It is argued by the Ld. APP for the state that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit liquor without permit. It is further stated that there are ocular and documentary evidence on record to bring home the guilt of the accused.
12. Per contra it is argued by the Ld. Counsel for the accused that non joinder of public witness despite availability cast shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused and that she is falsely implicated in present case. There are no independent evidence against her.
13. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, FIR No. 191/16 State Vs. Ramesh Page 7 of 11 in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
14. In present case prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened at about 08:05 p.m. and it is admitted fact that public persons were available at the spot which is evident from the testimony of PWs who deposed that spot was a public place and the IO had requested 45 public persons to join the investigation but none agreed. It was held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
15. In present case, IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility that it was a chance recovery. However, at the time and place from where FIR No. 191/16 State Vs. Ramesh Page 8 of 11 the accused was apprehended and when the formalities were being completed, public persons were admittedly present. Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
16. The another material thing which is required to discuss about the case of prosecution is that on 03.03.2016, PW3 was on patrolling duty in the area of C Block, Jahangir Puri meaning thereby that at the relevant time, he was not in the PS and it seems he was outside the PS, then as per Punjab Rules, he being on duty was required to enter his departure & arrival to & from the PS Jahangir Puri in the DD register of the said PS. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934: "22.49 Matters to be entered in Register No. IIThe following matters shall, amongst others, be entered:
(c)The hour of arrival and the departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note: Lines & Police Posts, where Register no.II is maintained.
17. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW 3. Prosecution has failed to produce FIR No. 191/16 State Vs. Ramesh Page 9 of 11 any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the presence of PW1 at the spot. Hence, it creates doubt in the prosecution story.
18. In present case, recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, an inference 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. In such circumstances fairness of investigation is doubted. Reliance can be placed on the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that "5. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) was recorded prior to the alleged recovery of the contraband 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 and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
FIR No. 191/16 State Vs. Ramesh Page 10 of 11
19. In present case the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
20. In view of the above said description and in the absence of any cogent evidence against the accused Babita, she is hereby acquitted for offence under section 38 Delhi Excise Act. Case property be confiscated to the state as per rules and the same be destroyed.
Digitally
Announced in open court today signed by
RICHA
RICHA SHARMA
SHARMA Date:
2020.01.22
on 13.01.2020 14:48:08
+0530
(Richa Sharma)
Metropolitan Magistrate07
North District Court/Delhi
FIR No. 191/16
State Vs. Ramesh Page 11 of 11