Delhi District Court
State vs . Jitender @ Jeetu on 8 April, 2015
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE (WEST) 03,
TIS HAZARI COURTS, DELHI.
FIR No.260/2011
PS - Nihal Vihar
U/s - 33 of The Delhi Excise Act, 2009
State Vs. Jitender @ Jeetu
Unique Case ID No.02401R0029992012
J U D G M E N T
(a) Sr. No. of the case 21/2/14
(b) Date of offence 12.09.2011
(c) Complainant HC Satish, No.148W, PS Nihal Vihar, New Delhi.
(d) Accused Jitender @ Jeetu S/o Sh. Ayodhya Prasad R/o H. No.34, Gali No.31, Vikas Vihar, Chander Vihar, New Delhi.
(e) Offence(s) Under Section 33 of The Delhi Excise Act, 2009.
(f) Plea of accused Pleaded not guilty
(g) Final Order Conviction
(h) Date of institution 19.01.2012
(i) Date when judgment Not reserved
was reserved
(j) Date of judgment 08.04.2015
1. The allegations against accused are that on 12.09.2011 at about 07:00 pm at Kikar Wala Chowk, Nihal Vihar, New Delhi, accused was found in possession of 105 quarter bottles of country made illicit liquor without any permit or license in contravention of provision of this act. According to prosecution, accused thereby FIR No.260/2011 Page No. 1 of 14 committed offence punishable under Section 33 of The Delhi Excise Act, 2009.
2. After completion of investigation, chargesheet was filed. Charge for offence punishable under Section 33 of The Delhi Excise Act, 2009 was framed against the accused vide order dated 04.12.2012 to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE MAIN WITNESS(ES)
3. PW1 HC Satish Kumar in gist has deposed that on 12.09.2011, he was on patrolling duty with Ct. Gurvinder Singh in area of Beat No.08, Chander Vihar, Nilothi. At about 06:40 pm, one secret informer met them and gave information that one person would come from Kikar Wala Chowk side and will go towards Chander Vihar Bazar with illicit liquor. He prepared raiding party and asked 4 - 5 public persons to join investigation, but, none agreed. Then, they both alongwith secret informer started waiting for the accused at Sunday Bazar Road, Chander Vihar. At about 07:00 pm, accused came from side of Kikar Wala Chowk carrying a plastic sack on his right shoulder. On instance of secret informer, they stopped him, checked the sack and found quarter bottles of illicit liquor in it. He counted quarter bottles and found 105 quarter bottles in total. All quarter bottles were labeled with label of "Narangi Special Masaledar Desi Sharab" for sale in Haryana only. He separated two FIR No.260/2011 Page No. 2 of 14 quarter bottles as sample, gave them serial number 01 and 02 and prepared pullanda with help of cloth piece and sealed it with the seal of 'SK'. Remaining quarter bottles were put back in same plastic sack. Plastic sack was also tied with the help of cloth string and sealed with the seal of 'SK'. Seal after use was handed over to Ct. Gurvinder Singh. Recovered illicit liquor was taken into possession vide seizure memo Ex.PW1/B. Form M - 29 Ex.PW1/A was also filled at the spot. He prepared Rukka Ex.PW1/C and sent Ct. Gurvinder Singh to PS for registration of FIR, who came back at the spot alongwith IO HC Ishwar Singh to whom further investigation was marked in this matter. He handed over the prepared documents, accused person and case property to HC Ishwar Singh who added FIR number on seizure memo and prepared site plan Ex.PW1/D at his instance. IO HC Ishwar Singh arrested accused Jitender @ Jeetu vide memo Ex.PW1/E and searched him vide memo Ex.PW1/F. IO HC Ishwar Singh also recorded his statement. He correctly identified the accused and case property Ex.P1. PW1 was examined, crossexamined and was discharged.
4. PW3 HC Ishwar Singh in gist has deposed that on 12.09.2011 after registration of FIR, investigation of this case was assigned to him. He went through the FIR, original Rukka and thereafter, immediately left for the spot alongwith Ct. Gurvinder where he met with HC Satish and one person namely Jitender @ Jeetu. He inquired from HC Satish who handed over to him custody of accused Jitender. FIR No.260/2011 Page No. 3 of 14 Thereafter, FIR number was added on the documents. HC Satish also handed over to him the case property sealed with the seal of 'SK'. He prepared site plan Ex.PW1/D at instance of HC Satish. He arrested accused vide memo Ex.PW1/E and searched him vide memo Ex.PW1/F. He recorded the statements of witnesses. Medical examination of the accused was got conducted and case property was deposited in the police malkhana. Thereafter on 21.09.2011, samples were deposited with excise lab for examination through Ct. Gurvinder. Later on, excise report Ex.PW3/A was collected. On completion of investigation, chargesheet was filed in the Court with all the relevant documents and material collected during investigation. He correctly identified the accused in the Court. PW3 was examined, not crossexamined by the accused despite opportunity given and was discharged.
FORMAL WINTESS(ES)
5. PW2 SI Subey Deen has proved and exhibited formal FIR Ex.PW2/A and endorsement on Rukka Ex.PW2/B. PW2 was examined, not crossexamined by the accused despite opportunity given and was discharged.
6. On 30.01.2015, further prosecution evidence was closed. STATEMENT OF ACCUSED
7. After closure of prosecution evidence, the statement of the accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with FIR No.260/2011 Page No. 4 of 14 Section 281 of The Code of Criminal Procedure, 1973. Incriminating evidence was put to him. He denied all the allegations and stated that he is innocent and has not committed any offence. Accused opted not to lead evidence in his defence.
8. Final arguments from both sides heard. Record is perused. APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. Before appreciating the evidence adduced before this Court and the contentions of both sides, it is pertinent to reproduce here Section 52 of The Delhi Excise Act, 2009 which provides as under : "Section 52 : Presumption as to commission of offence in certain cases : (1) In prosecution under Section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that Section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
(2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the Court that he had exercised due care in the prevention of the commission of such an offence."
So, onus is upon the accused in this matter to disprove the case of the prosecution of recovery.
10.1(a) It is contention of the defence that no public witness was joined in investigation by the police despite admission by PW1 that public persons were present at the spot. It is also contended that Ct. Gurvinder Singh has not been examined in this matter who was also the recovery witness, therefore, it also cast a shadow of FIR No.260/2011 Page No. 5 of 14 doubt on the evidence of prosecution. It is further the contention of the defence that the evidence of the prosecution is not reliable and therefore, should be rejected. Defence has relied upon the judgments of "Labh Singh Vs. State of Punjab" 1973 (CLR) 453, "Bhugdomal Ganga Ram & Ors. Vs. State of Gujrat" AIR 1983 SC 906 and "State of UP & Ors. Vs. Jaggo @ Jagdish & Ors." 1971 (CAR) 323 (SC) in support of its contenions.
10.1(b) On the other hand, it is contended by the prosecution that PW1 made efforts to join public persons in investigation, but in vain, therefore, its case cannot be doubted in the given circumstances.
10.2 This Court has given thoughtful consideration to the abovesaid contentions of both sides.
In the judgment of "Ajmer Singh Vs. State of Haryana"2010 AIR SCW 1494, Hon'ble Supreme Court of India has held that : "We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in all circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated."
In the judgment of "Karamjit Singh Vs. State (Delhi Administration)"
AIR 2003 Supreme Court 1311, Hon'ble Supreme Court of India has held that : "The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by FIR No.260/2011 Page No. 6 of 14 independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down."
In the judgment of "State of U.P. Vs. Anil Singh" AIR 1988, Hon'ble Supreme Court of India has held that : "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version."
In the judgment of "Govindaraju @ Govinda Vs. State by Sriramapuram P. S. & Anr." AIR 2012 SC 1292, the Hon'ble Supreme Court of India has held that : "16. This Court in the case of Girja Prasad (Supra)(AIR 2007 SC 3106) while particularly referring to the evidence of a police officer, said that it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. They rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration."
10.3 In view of these judgments, it is clear that the joining of independent public witnesses is not indispensable preposition and where public witnesses are not FIR No.260/2011 Page No. 7 of 14 ready to join investigation, the prosecution case cannot be thrown away on the mere ground that independent public witnesses were not joined in investigation. The PW1 has deposed in his examinationinchief that he made efforts to join the public persons in investigation, but none agreed. The public in general is reluctant to come forward to depose before the Court and have indifferent attitude in the investigation of crimes. No justifiable reason has been put forward qua false implication by the police. PW1 was certainly not expected to give written notice to public persons and to note down their addresses and other particulars who refused to join the investigation as it could have lead to wastage of unnecessary time and could have thus endangered the chances of recovery. It is also settled preposition of law that its the quality of evidence and not quantity which matters. Evidence of PW1 inspires the confidence of this Court, therefore, in the opinion of this Court, even if, Ct. Gurvinder has not been examined in this matter, it will have no bearance upon this case. In these circumstances, in the opinion of this Court, there is no reason to disbelieve the evidence of the prosecution witnesses. In view of the same and keeping in mind the law laid down by Hon'ble Supreme Court of India in abovesaid judgments, the submissions of the accused that the evidence of prosecution witnesses is not reliable and be thrown away, is hereby rejected.
11.1(a) Another contention which has been raised by the defence is that only FIR No.260/2011 Page No. 8 of 14 two quarter bottles were sent for examination, therefore, it is not proved on record that whole of the recovered quarter bottles contained liquor, further therefore, the accused should be acquitted on this ground. The defence has relied upon the judgment of "Basant Rai Vs. State" 2012 (130) DRJ 471 in support of its contention. 11.1(b) On the other hand, it is the contention of the prosecution that sufficient samples were sent for examination, therefore, accused cannot be given benefit in this matter.
11.2 This Court has considered the contentions raised by both sides.
This Court has also gone through the judgment cited by defence. The said judgment pertains to offence punishable under NDPS Act, 1985. In the said judgment, there were total eight bags recovered and the samples were taken out from all bags in small quantity and were mixed and then were separated in two parts and were sent for chemical examination. In those circumstances, Hon'ble High Court of Delhi concluded that it cannot be inferred that whole of the eight bags were containing contraband substance as the result was the mix of material of all the eight bags and therefore, benefit was given to the defence. The said judgment is not applicable to the present facts and circumstances of this case. In this matter, the whole case property i.e. 105 quarter bottles were recovered in one plastic sack and all were labeled with label of "Narangi Special Masaledar Desi Sharab" for sale in FIR No.260/2011 Page No. 9 of 14 Haryana only. Two samples quarter bottles were taken out by the IO randomly from the sack. As noted down by Hon'ble Supreme Court of India in matter of "Gaunter Edwin Kircher Vs. State of Goa" 1993 (3) SCC 145 discussed in abovesaid judgment cited by defence, it is not possible to send all the case property for examination. All the case property in this matter was alike and therefore, two sample quarter bottles can be said to be true representation of the whole lot. It was also observed at the time of production of case property that case property produced is 103 quarter bottles of 'liquor'. Since, excise report Ex.PW3/A is already on record from which it is clear that the samples sent for examination were liquor, therefore, in totality of circumstances, this Court sees no force in this defence and is therefore, hereby rejected.
12.1(a) Other contentions of the defence are that the MHC(M) has not been examined in this matter, therefore, it is not clear when the case property and samples were deposited in PS and when samples were sent for examination. It is also contended that seal after use was not handed over to any independent person. It is further contented that there is no D.D.Entry on record by which PW1 and Ct. Gurvinder were allegedly on patrolling duty. It is also contended that the place of receiving secret information is also not shown in the site plan. It is contention of the defence that the case of the prosecution is therefore, doubtful and benefit of the same FIR No.260/2011 Page No. 10 of 14 should go to the accused.
12.1(b) On the other hand, it is the contention of the prosecution that its witnesses are reliable witnesses and it has proved its case on record beyond shadow of reasonable doubt, therefore, accused should be held guilty in this matter. 12.2 This Court has considered the contentions raised by both sides.
PW3 has deposed that on the day of recovery itself, the case property and samples were deposited in the malkhana and further that on 21.09.2011, the samples were sent through Ct. Gurvinder to be deposited with the excise lab. The accused chose not to crossexamine the said witness. So, it was not controverted during prosecution evidence that the case property and samples were deposited on the day of recovery itself and the samples were sent to excise lab on 21.09.2011. Though, it is correct that seal was not handed over to any independent person, but since, no such defence that case property and samples were tampered with during the time they remain deposited in the malkhana or at the time of deposition in excise lab was taken by defence at the time of evidence of prosecution witnesses, therefore, it also appears to be an afterthought defence and there is no force in it. Now as far as the contention of the defence that no D.D.Entry is on record to show that PW1 and Ct. Gurvinder were on patrolling duty on the day in question is concerned, PW1 has deposed in his crossexamination that they left PS for patrolling at about 05:15 pm after departure FIR No.260/2011 Page No. 11 of 14 entry which was recorded by duty officer. The said deposition of PW1 was not controverted by the defence in crossexamination, so, it stands accepted by the defence that both PW1 and Ct. Gurvinder were on patrolling duty after getting recorded their departure entry. In these circumstances, even if there is no departure entry on record, it will have no bearance upon this case. The contention of the defence regarding non showing of the place of receiving of secret information also appears to be an afterthought as PW1 and PW3 were not crossexamined by the defence on the said aspect. Moreover each and every point of proceedings is not expected to be drawn into a site plan except the main point of occurrence which is the point of recovery in this case and the same is shown in the site plan Ex.PW1/D. In totality of circumstances, there is no force in the abovesaid contentions of the defence and are hereby rejected.
13. In this matter, it has been brought on record that on 12.09.2011 at about 07:00 pm at Kikar Wala Chowk, Nihal Vihar, New Delhi, accused was found carrying a sack and on being checked, he was found in possession of 105 quarter bottles of country liquor labeled with label of "Narangi Special Masaledar Desi Sharab" for sale in Haryana only. The recovered country liquor is above the permissible limit which one can possess. The main witness of the prosecution of recovery has successfully passed the test of lengthy and skillful crossexamination done by defence and he FIR No.260/2011 Page No. 12 of 14 remained unshakable and consistent as to material fact of recovery being affected from the accused. The excise report Ex.PW3/A has also been tendered in evidence which proves that the recovery effected from the accused is liquor. No permit or license to possess the same has been shown to this Court by the accused. The onus was upon the accused to disprove that the alleged liquor was not recovered from his possession as per Section 52 of The Delhi Excise Act, 2009, but, he has miserably failed to do so. The ingredients of commission of offence punishable under Section 33 of The Delhi Excise Act, 2009 have been brought on record beyond shadow of reasonable doubt against the accused. Though, it has also been proved on record that recovered country liquor was of Haryana Excise, but, since charge for offence punishable under Section 38 of The Delhi Excise Act, 2009 was not framed against the accused, therefore, he could not be held guilty for the same and further it would not be appropriate to reverse the clock at this stage.
14. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has duly proved its case against the accused for offence punishable under Section 33 of The Delhi Excise Act, 2009 beyond shadow of reasonable doubt. Accordingly, accused namely Jitender @ Jeetu stands convicted for offence punishable under Section 33 of The Delhi Excise Act, 2009. The case property be destroyed as per rules (if not already destroyed) after expiry of period of FIR No.260/2011 Page No. 13 of 14 appeal or disposal of appeal, if any.
15. Copy of judgment be supplied to the convict free of cost. Announced in open Court on April 08, 2015.
(HARVINDER SINGH) M.M.03/THC (WEST), Delhi/08.04.2015 FIR No.260/2011 Page No. 14 of 14