Delhi District Court
In Re: State vs Kamlesh on 4 February, 2010
IN THE COURT OF SHRI GAURAV RAO: METROPOLITAN
MAGISTRATE: DELHI
In Re: STATE VERSUS KAMLESH
F.I.R. No: 92/95
U/s 61/1/14 Punjab Excise Act
P.S. Vikas Puri
Date of Institution of Case : 11.07.1995
Date of Judgment Reserved for: 04.02.2010
Date of Judgment : 04.02.2010
JUDGEMENT:
(a) The serial no. of the case : 1901/02/08
(b) The date of commission of offence: 02.03.1995
(c) The name of complainant : HC Baljit Singh
(d) The name, parentage, : Smt. Kamlesh,
of accused S/o Sh. Dhan Raj,
R/o B-789, J.J. Colony, Hastal, Uttam
Nagar, New Delhi.
Present Address : As above
(e) The offence complained of:U/s 61 of Punjab Excise Act 1914 (f) The plea of accused : Pleaded not guilty (g) The final order : ACQUITTED (h) The date of such order : 04.02.2010
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 02.03.1995 at about 7.35 PM at B-789, J.J. Colony Hastal, Uttam Nagar, Delhi within the jurisdiction of police station Vikas Puri accused Kamlesh was found selling liquor without any permit or licence and thereby the accused Kamlesh committed offence u/s 61 of Punjab Excise Act 1914.
2. Charge sheet was filed, accused was supplied the documents and after hearing arguments on the point of charge, vide order dated 10.03.1997, charge u/s 61/1/14 Punjab Excise Act was framed against accused to which she pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined five witnesses, whereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein she claimed herself to be innocent and having been falsely implicated in the case.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW 1 Lady Ct. Kamla deposed that on 02.03.1995 she was posted at PS Vikas Puri at about 9.00 pm she reached at B-789, J.J. Colony, Hastal, Uttam Nagar and conducted the personal search of accused Kamlesh vide memo as Ex.PW1/A. In her cross examination she stated that Ct. Sanjeev Lochan came at the PS to call her. She stated that she left from the PS at about 8.45 pm and reached the spot in 10 minutes.
5. PW 2 Ct. Surender Kumar deposed that on 29.03.1995 on the instruction of the IO he deposited one quarter as sample duly sealed with the seal of SK in excise office vide RC No. 262/21 and till the time the sample remained in his possession nobody tampered with it.
6. PW 3 H.C. Balwan Singh deposed that on 02.03.1995 he was posted at PS Vikas Puri and on the day at about 8.49 pm he received a rukka brought by Ct. Sanjeev Lochan, on the basis of which, he registered the FIR as Ex.PW3/A.
7. PW 4 ASI Anoop Singh deposed that on 02.03.1995 he was posted as MHCM at PS Nangloi. On that day IO deposited case property i.e. one sealed envelope /one bottle duly sealed with the seal of SK vide entry no. 1681 in register no. 19. He proved the same as Ex. PW4/A and PW4/B respectively. He further deposed that on 29.03.1995 he handed over the sample with form M-29 to Ct. Surender Kumar vide RC no. 262/21 for depositing the same in the excise lab. He further stated that IO recorded his statement and made relevant entry at the same Sl. Number in register no. 19. He further deposed that during the time it remained in his possession same was not tampered.
During his cross examination, he admitted that he reproduced the seizure memo in register No. 19.
8. PW5 ASI Baljeet Singh deposed that on 02.03.1995 while he was on patrolling duty and when he reached at Subzi Mandi Shani Bazar Vikas Puri he met with a secret informer who told him that one lady was selling liquor for Rs. 40 per half bottles and if raided she could be caught. In the mean time, Ct. Sanjeev Lochan met him. He further deposed that he formed raiding party and requested 4/5 passerby but none agreed and Ct. Sanjeev Lochan was asked to become a decoy customer as he was in plain cloths. He further deposed that he handed over him a currency note of Rs 20 denomination no. 89S047958 and signed the same and handed over to Ct. Sanjeev Lochan. He further deposed that he instructed the Ct. to revolve his hand when the transaction is completed. He further deposed that Ct. went to H. No. D-789 JJ Colony and after the completion of transaction, he revolved his hand on his head. He further deposed that he went to the place of incident and Ct. handed over him a quarter bottle. He further deposed that name of the accused was revealed as Kamlesh. He further deposed that on search of the accused the currency note of the above said number was recovered from the possession of accused. Same was sealed with the seal of SK and taken into possession vide Ex. PW5/A. One half bottle was recovered from the possession of the accused and seized vide Ex.PW5/B and form 29 was filled at the spot. He further deposed that ruqqa Ex. PW3/A was prepared and Ct. Om Prakash was sent to register the FIR who came back to the spot along with the copy of FIR and original ruqqa and handed over the same to him. He further deposed that one lady Ct. Kamla arrived at the spot with Ct. and he arrested the accused and conducted personal search vide Ex. PW1/A and later on accused was released on bail. He further deposed that case property was deposited in the Malkhanna and sent the sample to excise lab through constable. He recorded the statement of PWs and prepared the challan.
The case property duly identified by this witness when the same was produced by the MHC (M) as P-1.
During his cross examination he admitted that area was residential and no public witness was cited as witness. He denied the suggestion that he was deposing falsely and no recovery as alleged was recovered from the accused.
9. This is all as far as prosecution evidence in the matter is concerned.
10. I have heard the arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
11. The learned defence counsel has very vehemently argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there is no independent corroboration thereof. It was further argued that the recovered liquor was planted upon the accused. On the other hand, the Ld. APP argued that there is no requirement of law that independent witness ought to be joined during investigation or raid or that the testimony of police official is unreliable in the absence of any independent corroboration.
12. No doubt that Police officials/official witnesses are as good as any other witness however, when public persons were available and still they have not been joined in the investigation and no notice has been served upon them in case of refusal the prosecution case/their testimony has to be scrutinized stringently.
13. In ''1990 CCC 3'', titled as ''Roop Chand V/s State of Haryana'' it was observed as under :
''When some witness from the public was available the the explanation furnished by the prosecution that they refused to join the investigation, the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.
In ''1990 CCC 20'' titled as ''Maluk Singh V/s State of Punjab'', it was further held that:
''Joining of witnesses in the case of excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency it is always desirable that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation''.
14. In the present case admittedly the place of alleged recovery of the illicit liquor was a residential area and various houses were located however, none from the public could be joined by the police official during the alleged raid and seizure. No action was taken/no notice was served those who refused to join the investigation and even their names were not noted down and the explanation as furnished by the police officials is unreliable. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable. In the case of PREM SINGH VS. STATE 1996 CRI. L. J. 3604 (DELHI) and in the case of PAWAN KUMAR VS. DELHI ADMN. 1989 CRI. L.J. 127 it was observed that in case of failure to join independent witness benefit of doubt must be given to the accused.
15. In the present case, no efforts were made to hand over the seal after use to independent public persons and it remained with the officials of the Police Station only. In such cases in view of the case titled as SAIFULLA VS. STATE 1998 (1) CCC 497(DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused.
16. In the present case, prosecution failed to examine Ct. Sanjeev Lochan who in my opinion was material/essential witness as allegedly he was the decoy customer through whom the liquor was purchased and cur- rency note handed over to the accused. Prosecution failed to give any plausible explanation for his non-examination.
17. In the present case as is evident from Ex. PW4/A that no signa- tures of the person who deposited the case property were obtained by the MHC (M) in register no. 19 at Sl. No. 3. Even the signatures of the person who took the sample to excise office was not obtained at Sl. No. 7. All this shows the lackadaisical manner/shoddy manner in which the entire invest- igation was carried on by the police officials. These circumstances espe- cially when the seal was not handed over to independent persons and re- mained with the police officials of the same police station where the prop- erty was lying benefit of doubt must be given to the accused as observed in AJIT SINGH VS. STATE OF PUNJAB 1984 (2) RECENT CRIMINAL RE- PORTS 95.
18. Neither the road certificate via which the sample was allegedly sent to Laboratory could be proved by the prosecution. In the absence of both these material documents/missing link in the prosecution story benefit has to be given to the accused. Reliance can be placed upon 1994 Drugs cases page 154'', titled as ''Ghanshyam V/s State'' and ''72(1999) DLT 435'', titled as ''Sunil V/s State''.
19. In this case the FIR number is mentioned on the recovery memo/seizure memo. Same is written in the same ink/pen/flow as the other particulars on the said documents. Admittedly this document was prepared before registration of F.I.R. In the case of MOHD. HASHIM VS. STATE 1999 (6) A.D. (DELHI) 569 it was observed that when documents are prepared before registration of F.I.R. and it contains the F.I.R. No. then inference has to be drawn that either F.I.R. 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.
20. Even the departure and arrival of the police officials to the police station have not been proved by the prosecution to lend credence to the version of the prosecution.
21. Lastly I may reiterate the observations made in Raghbir Singh and another v. The State of Haryana, 1990(1) Chandigarh Law Reporter 695; State of Punjab v. Gurmej Singh, 1991(2) Recent Criminal Reports 361; State of Punjab v. Gurnam Singh, 1991(3) Recent Criminal Reports 4122 and Gurvel Singh v. The State of Punjab, 1992(1) Recent Criminal Reports 114 where it has been held that failure of the Investigating Officer to join independent witnesses of the locality in investigation sounds the death knell of the prosecution case set up against accused and the accused is entitled to secure an acquittal on this score.
22. In view of the above discussion, I am of the considered opinion that the prosecution has not been able to prove the charges against the accused beyond the shadow of doubt. Accused Kamlesh is accordingly entitled for acquittal. I order accordingly. Surety bonds cancelled, sureties discharged. Endorsements, if any on the documents of surety be cancelled forthwith. No further orders are required to be passed in the matter.
23. File be consigned to Record Room as per rules and procedure.
Announced in the open (Gaurav Rao) Court on 04.02.2010 MM (West)/Delhi. 04.02.2010 F.I.R. No: 92/95 U/s 61/1/14 Punjab Excise Act P.S. Vikas Puri Pr: Ld. APP (s) for state. Accused is present on bail.
Final arguments heard. Put up for Judgment at 4:00 p.m. At 4:00 p.m. Vide my separate judgment the accused has been acquitted for the charges in the present matter.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents if any be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao) MM (W)/Delhi.
04.02.20 10