Delhi District Court
State vs . Rockey on 13 November, 2018
IN THE COURT OF SH. VISHAL PAHUJA, MM-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. ROCKEY
FIR NO.17/15
PS: RANHOLA
U/S: 33/38 DELHI EXCISE ACT
New Case No. : 63232/16
Date of commission of offence : 08.01.2015
Date of institution of the case : 20.05.2015
Name of the complainant : Ct. Ajay Kumar
Name of accused and address : Rockey, s/o Late Sh.
Rajesh Kumar, r/o H.no. A-
23, Som Bajar, Vikas Nagar,
Uttam Nagar, Delhi-110059.
Offence complained of or proved : U/s 33/38 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment : 13.11.2018
Date of judgment : 13.11.2018
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BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused Rockey pursuant to charge sheet filed by PS Ranhola U/s 33/38 Delhi Excise Act subsequent to the investigation carried out by them in FIR No. 17/2015.
2. As per the prosecution, Ct. Ajay Kumar while patrolling on 08.01.2015 at about 11.05 AM reached at Vikas Nagar Nala, where he saw one person coming from the side of Nangloi along with one plastic katta on his shoulder. On suspicion, accused was stopped and katta was checked. Ct. Ajay Kumar found that katta was containing quarter bottles of illicit liqour. Thereafter, the information was passed to the police station and HC Parminder came at the spot. The accused was handed over to IO.FIR No.17/2015, PS RANHOLA Page 1 of 8
The katta was checked and same was found containing 72 quarter bottles of Episode Superior Grain Whiskey for sale in Haryana only. The accused was found in possession of the liquor without any permit or licence in contravention of the provisions of Delhi Excise Act. Accordingly, after the investigation, police filed the present charge sheet against the accused.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offence punishable under section 33/38 Delhi Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. Thereafter, the matter was posted for prosecution evidence. The prosecution got examined three witnesses in support of its case.
5. PW1 Ct. Ajay Kumar deposed that on 08.01.2015 at about 11.05 AM he was on patrolling duty and when he reached at Vikas Nagar Nala he saw one person coming from the side of Nangloi along with one plastic katta on his shoulder. It is stated that on seeing PW1 accused turned back and started walking fast. It is stated that upon suspicion PW1 stopped him and checked the said katta which was found containing quarter bottles of illict liquor with mark for sale in Haryana only. It is stated that thereafter PW1 gave information in PS and after sometime HC Parminder came at the spot and PW1 handed over the custody of accused and recovered liquor to HC Parminder. It is stated that thereafter IO requested 4-5 passersby to join the investigation but none agreed and left the spot without disclosing their names and addresses. It is stated that thereafter IO took out the quarter bottles which were 72 quarter bottles. It is stated that out of the 72 quarter bottles one bottle was separated as sample and the same was sealed with the seal of PKY. Seal after use was handed over to PW1. It is stated that Form M-29 was also filled. Thereafter, IO prepared rukka on statement of PW1 which is Ex. PW1/A. Thereafter, PW1 went to the PS and got the FIR registered. It is stated that IO FIR No.17/2015, PS RANHOLA Page 2 of 8 prepared the site plan Ex. PW1/B. It is stated that the case property was seized vide seizure memo Ex. PW1/C. Thereafter, accused was arrested and personally searched vide memos Ex. PW1/D and Ex. PW1/E respectively. It is further stated that IO recorded the disclosure statement of accused. The same is Ex. PW1/F. It is stated that thereafter the accused was medically examined and put behind the bars. This witness correctly identified the case property Ex.P1. This witness was cross- examined on behalf of accused.
6. PW2 ASI Parminder deposed qua the manner and his involvement in the investigation being the IO of the case. PW2 also deposed on the same lines as that of PW1, in addition to this he exhibited on record DD no. 21A as Ex. PW2/A, form M-29 as Ex. PW2/B and rukka as Ex. PW2/C. This witness also relied upon the documents already exhibited on record by PW1. This witness was cross-examined on behalf of accused.
7. PW-3 ASI Naresh Kumar deposed that on 19.02.2015 the case property i.e. sealed samples were handed over to PW3 by the MHC(M) for deposition of the same at Excise Lab, ITO, Vikas Bhawan. The said case property was deposited by PW3 at aforesaid office and no tampering had taken place with the same till the deposition of the same with excise lab. The road certificate vide which the case property was deposited and acknowledgment was endorsed is already on record. The same is Ex. PW3/A. This witness was not cross examined on behalf of accused.
8. During trial accused admitted the copy of FIR i.e. 17/15 dated 08.01.2015 along with certificate u/s 65B of I.E. Act, DD no. 21A dated 08.01.2015, DD no. 17A dt. 08.01.2015 and report of excise lab bearing no. SZD019790 dt. 25.02.2015. The same are Ex. X1, X2, X3, X4 and Ex. X5 respectively.
FIR No.17/2015, PS RANHOLA Page 3 of 89. No other witness was left to be examined, hence PE was closed on 28.09.2018.
10. Thereafter, statement of accused Section 281 Cr.P.C read with Section 313 Cr.P.C was recorded in which all incriminating circumstances appearing in evidence against accused were put to him to which he stated that he is innocent and has been falsely implicated in this case. Accused opted not to lead any defence evidence.
11. Arguments addressed by defence counsel and Ld. APP have been heard and record has been perused.
12. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted.
13. After considering respective arguments and evidence led by prosecution, the undersigned is of the considered opinion that prosecution has not been able to prove guilt of accused beyond reasonable doubt. The accused deserves acquittal on following grounds:-
14. Firstly, no DD entry has been proved on record by prosecution in order to show that PW1 Ct. Ajay Kumar was indeed on patrolling duty on the day of alleged recovery of liquor. This is an important missing link in the version of prosecution. As per chapter 22 rule 49 of the Punjab Police FIR No.17/2015, PS RANHOLA Page 4 of 8 Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:-
(c) The hour of arrival and 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 personally by signature or seal.
Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No.II is maintained.
15. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no.II, they were patrolling in the particular area. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. In Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that:
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."FIR No.17/2015, PS RANHOLA Page 5 of 8
16. Apart from this, his presence at the spot is not proved. If he has departed from PS for patrolling duty the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown his departure as all.
17. Further, from prosecution version, it does not appear that before checking the plastic katta of the accused, recovery witness made any sincere efforts to join public persons to witness search despite the place of recovery is stated to thickly populated area. No notice has been proved on record to show that any public person was asked to join the search proceedings. The place at which illicit liquor was allegedly recovered appears to be a public place and it is not the case of prosecution that public witnesses were not available at that place. Non joining of public witnesses also causes a dent in credibility of prosecution version and had public witnesses witnessed the recovery of the case property, prosecution version would have been more authentic. This is not to say that testimony of police officials is not reliable but addition of public witnesses before search of accused would have made prosecution version more reliable. As it is established principle of law that where a number of public persons would be available, but no public witness has been engaged in this case nor any sufficient explanation given for non-joining the public witness at the time of apprehension of accused. In the case where the public witness are easily available and they are not being joined without any justified reason, the statement of police witnesses only cannot be relied. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) in which High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly FIR No.17/2015, PS RANHOLA Page 6 of 8 when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
18. As per the testimony of PW1 Ct. Ajay Kumar and PW2 ASI Parminder, the seal after use on the pullinda containing the liquor allegedly recovered from the accused was given to none else but to PW1 Ct. Ajay Kumar, who himself was a recovery witness, who apprehended the accused. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication & planting of the case property cannot be ruled out beyond reasonable doubt. Further no DD entry of handing over or returning of seal is on record.
19. From the above stated facts the recovery of illicit liquor from the possession of accused becomes doubtful. These are material missing link in version of prosecution and tampering of case property in these circumstances cannot be ruled out. These contradictions show that the recovery was not effected and the accused was not arrested as claimed by the prosecution.
20. In view of the foregoing discussion, it is held that the prosecution has not been able to successfully build the case against the accused. As there are material discrepancies in the prosecution case, it is a fit case in which benefit of doubt must be given to the accused. Accused is thus entitled to benefit of doubt and is accordingly acquitted for offence for which he has been charged.
FIR No.17/2015, PS RANHOLA Page 7 of 821. Requirements of Section 437-A Cr.P.C have been complied with. File be consigned to Record Room after due compliance.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date:
2018.11.14
15:52:52 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 13.11.2018 MM-04 (WEST)/DELHI
Containing 06 pages all signed by the presiding officer. Digitally signed
VISHAL by VISHAL
PAHUJA
PAHUJA Date: 2018.11.14
15:52:56 +0530
(VISHAL PAHUJA)
MM-04 (WEST)/DELHI
FIR No.17/2015, PS RANHOLA Page 8 of 8