Delhi District Court
State vs . Rajni on 29 August, 2014
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Rajni
FIR NO: 167/08
P. S Sangam Vihar
U/s 61 Excise Act
Unique ID No. 02403R0561522008
JUDGMENT
Sl. No. of the case : 325/3 (13.6.2008)
Date of its institution : 13.6.2008
Name of the complainant : Ct. Mohd. Talim, No. 3173/SD, then
posted at PS Sangam Vihar, New
Delhi.
Date of Commission of offence : 22.3.2008
Name of the accused : Smt. Rajni, W/o Jackie, R/o G9/83,
Sangam Vihar, New Delhi.
Offence complained of : 61 Excise Act
Plea of accused : Not Guilty
Case reserved for orders : 29.8.2014
Final Order : Acquittal
Date of orders : 29.8.2014
State Vs. Rajni 1/10 FIR no. 167/08
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Rajni upon a charge sheet filed by the police station Sangam Vihar under section 61 Excise Act.
2. The allegations against the accused are that on 22.3.12008 at about 10.45 am in front of H.no. 83, Gali no. 9, G Block, Sangam Vihar, New Delhi accused was found in possession of 13 kattas containing illicit liquor. This country made liquor was being carried by accused without any permit or license and in contravention of Notification of Govt. of NCT Delhi.
3. After completing the formalities, investigation was carried out by PS Sangam Vihar and a charge sheet was filed against the accused. The charge was framed against the accused u/s 61 Excise Act, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined three witnesses.
5. PW 1 HC Ajeet Singh proved the FIR as Ex.PW1/A upon rukka Ex.PW1/B. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
6. PW 2 Ct. Mohd. Talim deposed that on 22.03.2008, he was posted at PS Sangam Vihar, as Ct. On that day, he alongwith Ct. Santosh were on patrolling duty at Beat No.
10. They reached gali no. 9, G Block and met a secret informer who that illicit liquor has been brought and raid should be conducted. They asked 45 public persons to join the raiding party, but all refused telling their personal reasons. He alongwith Ct. Santosh and the secret informer went to in front of H. No. 83. There they found that one lady was dragging one plastic bag inside the house. She was stopped and asked about the bag, but she could not give any satisfactory reply. He intimated police officials at P.S. HC Shiv Charan and Lady Ct. Poonam came at the spot and he handed State Vs. Rajni 2/10 FIR no. 167/08 over the lady and the illicit liquor in the bag to HC Shiv Charan. He checked the spot and found that there were total 13 kattas out of which 11 were white in colour, other tea katta and the last one was a jute bag. First katta was containing 192 quarter bottles of Murthal No. 1 Masaldear Desi Sharab for sale in Haryana only, second katta contained 144 quarter bottles of Narangi Desi Sharab for sale in Haryana only and 48 quarter bottles of Murthal No. 1 for sale in Haryana only and third katta was containing 144 Bonnie quarter bottles, fourth and fifth were containing same quantity and same brand, sixth katta was containing 130 quarter bottles of Bonnie Whisky for sale in Haryana only, seventh was containing 139 Murthal No. 1 for sale in Haryana only, eighth was containing 36 beer of 50000 Superior Brand Strong Beer, other kattas were also containing 36 beers of 50000 Superior Brand Strong Beer. One sample was taken out from each katta and two samples were taken from katta no. 2 as it was containing two brands. The mouth of the kattas and the samples were tied with white cloth and sealed with the seal of SCS. Serial no. 113 were given to kattas and 1A to 13A was given to samples. 2B was given to the second sample in katta no. 2. IO prepared rukka on the basis of his statement Ex. PW2/A and handed over the same to Ct. Santosh for getting the FIR registered. Seal was handed over to him. At his instance, site plan was prepared. Ct. Santosh came back after getting the FIR registered. Accused was arrested and her personal search was conducted by W/Ct. Poonam. Seizure memo of case property which is Ex. PW2/B. Arrest memo and personal search memo are Ex. PW2/C & Ex. PW2/D. IO recorded his statement. He also proved the case property as Ex.P1 (colly). He was cross examined by Ld. Counsel for the accused.
7. PW 3 HC Santosh Kumar deposed that on 22.03.2008, he was posted at PS Sangam Vihar, as constable. On that day, he alongwith Ct. Talim were on patrolling duty at Beat State Vs. Rajni 3/10 FIR no. 167/08 No. 10. They reached gali no. 9, G Block and met a secret informer who that illicit liquor has been brought and raid should be conducted. They asked 45 public persons to join the raiding party, but all refused telling their personal reasons. He alongwith Ct. Talim and the secret informer went to in front of H. No. 83. There we found that one lady was dragging one plastic bag inside the house. She was stopped and asked about the bag, but she could not give any satisfactory reply. Ct. Talim intimated police officials at P.S. HC Shiv Charan and Lady Ct. Poonam came at the spot and they handed over the lady and the illicit liquor in the bag to HC Shiv Charan. He checked the spot and found that there were total 13 kattas out of which 11 were white in colour, other tea katta and the last one was a jute bag. First katta was containing quarter bottles of Murthal No. 1 Masaldear Desi Sharab for sale in Haryana only, however he did not remember the number of bottles contained in it, second katta contained 144 quarter bottles of Narangi Desi Sharab for sale in Haryana only and 48 quarter bottles of Murthal No. 1 for sale in Haryana only and third katta was containing 144 Bonnie quarter bottles, fourth and fifth were containing same quantity and same brand, sixth katta was containing 130 quarter bottles of Bonnie Whisky for sale in Haryana only, seventh was containing 139 Murthal No. 1 for sale in Haryana only, eighth was containing 36 beer of 500 Superior Brand Strong Beer, other kattas were also containing 36 beers of 500 Superior Brand Strong Beer. One sample was taken out from each katta and two samples were taken from katta no. 2 as it was containing two brands. The mouth of the kattas and the samples were tied with white cloth and sealed with the seal of SCS. The seal was given to Ct. Talim. Serial no. 113 were given to kattas and 1A to 13A was given to samples. 2B was given to the second sample in katta no. 2. IO prepared the rukka on the basis of statement of Ct. Talim which is Ex.
State Vs. Rajni 4/10 FIR no. 167/08 PW2/A and handed over the same to him for getting the FIR registered. He went to the police station and got registered the FIR and returned to the spot with original rukka and copy of FIR. Accused was arrested and her personal search was conducted by W/Ct. Poonam vide memos Ex.PW2/C and Ex.PW2/D. Seizure memo of case property is Ex. PW2/B. IO recorded his statement. He was cross examined by Ld. Counsel for the accused.
8. This is the overall prosecution's evidence in this case. After recording evidence of prosecution's witnesses, the same stood closed vide order dated 20.8.2014.
9. After these witnesses were examined, the accused was examined u/s 313 Criminal Procedure Code, 1973 (for short "the Code") in which she has denied the incriminating evidence against her and further stated that she does not want to lead defence evidence. Consequently, matter was posted for final arguments.
10. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
11. After going through the complete evidence and records of this case I am of the view that the accused deserves acquittal in this case on the following grounds.
12. Firstly, if the police personnel who has apprehended the accused with the illicit liquor was on patrolling duty, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
State Vs. Rajni 5/10 FIR no. 167/08 As per chapter 22 rule 49 of the Punjab Police 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.
13. 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. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"wherein it has been observed 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."
14. The next defence is that the public witnesses are not joined in the investigation. From the overall testimony of the witness, it appears that no effort, what to talk of a State Vs. Rajni 6/10 FIR no. 167/08 sincere/vague effort has been made to join the public persons in the investigation. All the witnesses examined by the prosecution are the police witnesses. Not even a single public witness has been examined by the prosecution nor joined in the investigation and no reason has been put forward by the prosecution witnesses that for what reason they are unable to gather support from public or independent witnesses to establish the guilt of the accused. Although, it can be said that it was a chance recovery but the incident had occurred from in a busy locality and therefore, it cannot be said that no public person would have been available at the spot. And even if the prosecution has not associated the public witnesses, it was incumbent upon the prosecution to at least put forward the reasons for not doing so. The failure on the part of the police personnels goes to suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"It is repeatedly laid down by this Court that 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 evident that no such sincere efforts have been made, particularly 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 rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence State Vs. Rajni 7/10 FIR no. 167/08 under the IPC."
15. In "Roop Chand Vs. The State of Haryana 1999 (1) C.L.R, the Punjab and Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. 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 themselves 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 anybody 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 the witnesses from the public is an after thought and is not State Vs. Rajni 8/10 FIR no. 167/08 worthy of credence. All these facts taken together make the prosecution case highly doubtful".
16. In "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court observed that "all the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo type statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
17. Since all the witnesses are police personnels and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out at the instance of the police.
18. Not only this there is an unexplained delay in sending the sample to the excise laboratory. The incident is of 22.3.2008 and the sample was sent to the Excise Laboratory on 31.3.2008. There is no evidence that the sample remained intact till deliver to the office of chemical examiner. Till that time the sample remained in police possession. It was the duty of the police to send the samples to the laboratory without any unexplained delay which could rule out any tampering with the case property which was not done in the present case and the case property remained in the police station for a period of around nine days at the disposal of the police.
19. Furthermore, during the evidence of the prosecution's witnesses when the case properties i.e 13 kattas were produced, all were in unsealed and torn condition. It was also found that some bottles were empty and some are half filled. Therefore, serious doubt arises regarding the veracity of the testimony of the prosecution's witnesses in regard to the recovery of illicit liquor.
State Vs. Rajni 9/10 FIR no. 167/08
20. On the basis of aforesaid discussions, it is held that the prosecution has failed to prove its case beyond reasonable doubt, hence the accused Rajni is acquitted of the offence u/s 61 Excise Act.
Announced in the open court (Navjeet Budhiraja)
on 29.8.2014 Metropolitan Magistrate04,
South, New Delhi
State Vs. Rajni 10/10 FIR no. 167/08