Delhi District Court
State vs . Prempal Verma @ Pimu on 4 January, 2014
IN THE COURT OF MM06(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
Presided by : Ms. Manisha Tripathy
State Vs. Prempal Verma @ Pimu
FIR No. 10/09
P.S. Neb Sarai
Date of institution of case: 25.05.2009
Date of reserving the judgment: 04.01.2014
Date of pronouncement of judgment: 04.01.2014
J U D G M E N T
1.Serial No. of the Case: 10/3/09
2.Date of the Commission of offence: 08.01.2009
3.Date of Institution of the case: 25.05.2009
4.Name of the complainant: HC Darshan Kumar
5.Name of the accused, Prem Verma @ Pimu
Parentage & Address: S/o Lt Ram Kr Verma
R/o CS1083,
Near Holi Chowk,
Sitala Mata Mill Basti,
Baljeet Nagar, Punjabi
FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 1/16
Basti, New Delhi.
6.Offence complained or proved: U/s 61/1/14/78 Excise Act
7.Plea of accused: Not Guilty
8.Final order: Acquitted
9.Date of final order: 04.01.2014
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 08.01.2009 at about 09.20 am near Police Booth, Lblock, Bandh Road, Sangam Vihar, New Delhi, within the jurisdiction of PS Neb Sarai, accused Prempal Verma @ Pimu was found in possession of 30 petties, out of which 24 petties contained 50 quarter bottles each, 05 petties contained 12 full bottles each and 01 petty contained 11 full bottles, all branded as Samalkha No.1, for Sale in Haryana only without any permit or license. Accused was arrested, case property was seized and deposited in malkhana.
2. After investigation, chargesheet under section 173 Cr.P.C was filed on 25.05.2009. On the basis of the chargesheet and material on record, prima facie case was made out, therefore, charge for the offence punishable under section 61/1/14/78 Excise Act was framed against the FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 2/16 accused by Ld. Predecessor on 28.04.2011 to which he pleaded not guilty and claimed trial.
3. To prove it case, Prosecution examined following witnesses.
4. PW1 Ct. Bijender is the recovery witness. He deposed that on 08.01.2009 while he along with HC Ajit Singh, Ct Ashok and Ct Gulab Singh were on patrolling duty, when they reached at Bandh Road, near police booth, LBlock, Sangam Vihar, New Delhi, at about 9.00 am, they received a secret information that a person is carrying illicit liquor in Santro Car bearing no. DL 8CG 1573. Thereafter, they requested public persons to join the raid but no one agreed and thereafter, they started checking vehicles at the spot and at about 9.20 pm, the said car came and they stopped the car with the help of barricading and checked the vehicle and found 30 petties of illicit liquor. He further deposed that in the meantime, HC Darshan also reached the spot who took one quarter bottle from each petty as sample and sealed the sample along with case property with the seal of DKT and seal was handed over to Ct. Ashok after use. He further deposed that IO filled Form M29. He further deposed regarding arrest and personal search of the accused by IO in his presence vide Ex.PW1/A & PW1/B respectively. He further deposed regarding seizure of illicit liquor and Santro Car vide seizure memos Ex PW1/C & PW1/D. Thereafter, IO prepared the rukka and got the case FIR registered through this witness who returned on the FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 3/16 spot with copy of FIR and original rukka. He identified his signatures on the abovementioned documents. He also identified the accused. He also identified the case property which was produced before the court in sealed condition bearing the seal of DKT as the same which was recovered from the accused.
In his cross examination, he admitted that no departure entry was made. He further admitted that secret information was received by the IO ASI Darshan and IO shared the secret information physically with him. He stated that IO was also in the area along with HC Ajit and Ct Gulab. He failed to depose as to where or which side he was standing when the vehicle was stopped. He further failed to depose as to who had hit the danda on the said vehicle, however, stated that danda was blown from right side. He further admitted that spot was busy and surrounded by forests. He further failed to depose the names of public persons to whom he requested to join the investigation. He admitted that no independent person joined the investigation nor any legal notice was given to the public persons who refused to join the investigation. He failed to depose as to seal handing over memo was prepared by the IO or not. He further failed to depose as to how case property was taken to PS.
5. PW2 HC Gulab Singh, PW4 Ajit Singh and PW5 HC Ashok Kumar are other recovery witnesses. They also deposed on the similar lines as FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 4/16 PW1. Therefore, their depositions are being not reproduced for the sake of brevity. In addition, PW2 HC Gulab Singh, PW4 Ajit Singh and PW5 HC Ashok Kumar, all deposed that IO/HC Darshan Singh was with them during the patrolling.
In cross examination of PW4 Ajit Singh, he stated that departure entry was made but he failed to disclose its number. He admitted that secret information was received by the IO HC Darshan Singh. He admitted that no DD entry was made for barricading. He further admitted that secret information was not reduced in writing. He stated that glass of the vehicle was broken due to use of Danda by IO. He admitted that spot was busy surrounded by many persons. He admitted that no seal handing over memo was prepared. He stated that case property was taken to PS in the same vehicle but failed to depose as to who was driving the vehicle. He further admitted that IO recorded the statement of all witnesses at the police station.
6. PW3 HC Kartar Singh is the duty officer. He proved the registration of FIR Ex PW3/A and endorsement on the rukka Ex PW3/B.
7. PW6 HC Shailender is formal witness who carried the sample of case property to the Excise Laboratory, ITO. He deposed that sample was sealed with the seal of DKT when he carried the same to Excise Lab on 16.01.2009 and received RC from there. He further stated that sealed bottles were remained intact and was not tampered with during his FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 5/16 custody.
8. PW7 ASI Darshan Kumar is the investigating officer of the case. He deposed that on 08.01.2009 while he along with HC Ajit Singh, Ct Ashok, Ct Bijender and Ct Gulab Singh were on patrolling duty, when they reached at Bandh Road, near police booth, LBlock, Sangam Vihar, New Delhi, at about 9.00 am, they received a secret information that a person is carrying illicit liquor in Santro Car bearing no.DL 8CG 1573. Thereafter, they requested public persons to join the raid but no one agreed and thereafter, he informed the SHO by phone. He further deposed that thereafter, they started checking vehicles at the spot and at about 9.20 pm, the said car came and they stopped the car with the help of barricading and thereafter, driver tried to flee and in attempt, front glass of the vehicle was broken. He further deposed that thereafter, driver was alighted from the vehicle and they checked the vehicle and found 30 petties of illicit liquor out of which 24 petties contained 50 quarter bottles each, 06 petties contained full bottles out of which five petties contained 12 full bottles and one petty contained 11 bottles, all branded as Samalkha No.1. He further deposed that 10 sacks were arranged and sack no.1 to 8 were filled with quarter bottles and two sacks were filled with full bottles. He further deposed that one quarter bottle from sack no.1 to 8 and one bottle from sack no. 9 & 10 were taken as sample and sealed the sample along with case property FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 6/16 with the seal of DKT and seal was handed over to Ct. Ashok after use. He further deposed that he seized the illicit liquor and Santro Car vide seizure memos Ex PW1/C & PW1/D and thereafter he sent rukka through Ct Bijender who returned back to the spot after registration of FIR and handed over rukka and copy of FIR. He further deposed regarding arrest and personal search of the accused vide Ex.PW1/A & PW1/B respectively. He further deposed that thereafter, he filled Form M29. He identified his signatures on the abovementioned documents. He also identified the accused.
In his cross examination, he admitted that his duty was on police booth. He further admitted that no departure entry was made. He further admitted that he had not made any DD entry regarding fixing of barricades or preparing of raiding team. He further admitted that secret information was not reduced in writing. He admitted that they had not used any force to stop the accused. He stated that he was at the left side / driver side of the car. He admitted that they had not broken the glass of the vehicle. He failed to depose as to who had hit the danda on the said vehicle. He further admitted that spot was busy and surrounded by many persons. He further failed to depose the names of public persons to whom he requested to join the investigation. He admitted that no independent person joined the investigation nor any legal notice was given to the public persons who refused to join the investigation. He FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 7/16 admitted that no seal handing over memo was prepared. He stated that case property was taken to PS in the said vehicle, driven by HC Ajit. He further stated that he recorded the statement of witnesses at the spot.
9. After closing of prosecution evidence, all the incriminating evidence was put to the accused and his statement was recorded on 23.03.2013 under section 313 r/w section 281 Cr.P.C. He claimed innocence and false implication. He did not lead Evidence in his defence.
10. Thereafter, Final arguments were heard. It was argued by Ld. APP for State that the accused as well as the case property have been correctly identified by the witnesses and material witnesses have corroborated the testimony of each other, therefore, case has been proved beyond doubt against the accused. He accordingly prayed for conviction of the accused.
11. On the other hand, it was argued by Ld. Counsel for the accused that nothing has been recovered from the possession of the accused and that he has been falsely implicated by the police. Ld. Counsel pointed out certain lacunae in the prosecution case. He argued that the fact that no public witnesses have been joined in the investigation despite availability, departure entry of the recovery witnesses have not been proved, alleged seal was not handed over to independent witness after use, case property was produced in court was not the same as alleged to have been seized and seizure memos mention FIR number and case FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 8/16 details despite having been prepared earlier in point of time shows that the accused has been falsely implicated. He accordingly, prayed for acquittal of the accused.
12. I have carefully perused the record and considered the submissions of learned Assistant Public Prosecutor for the State and Ld. Defence Counsel.
13. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or license. In order to establish guilt of the accused, the prosecution was required to prove the recovery of illicit liquor from the possession of the accused beyond all reasonable doubts.
14. Evidently, there is no public witness to the recovery of the liquor. The place of arrest of accused and recovery, was busy road surrounded by many public persons. It is not the case of the prosecution that no public person was present near the spot of recovery rather public persons are stated to have been requested to join investigation. No efforts by the IO are seen on the file for joining the public witnesses. A notice in writing to witnesses to join the proceedings or to face action u/s 187 IPC could have been served upon the public persons present on the spot by the IO. IO has failed to even note down the names and addresses of the public persons who were supposedly requested but refused to join investigation. Thus, it can fairly be inferred that no sincere efforts were FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 9/16 made by IO to join public witnesses despite their availability. This casts doubts on the fairness of the investigation. Legal position has been reiterated by the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127. The relevant extract is reproduced hereinbelow:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. Should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 10/16
15. While none joining of public witnesses creates doubts as regards fairness of investigation but at the same time the prosecution case cannot be thrown out and accused can't be acquitted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the instant case, it is not only the absence of public witnesses but there are other circumstances too which raises a doubt on the prosecution case.
16. The prosecution case rests entirely on the alleged recovery of illicit liquor from the accused. As already discussed, no public witnesses have been joined in the investigation. In such circumstances, the departure and arrival entries in the register No.II as maintained under chapter 22 Rule 49 of Punjab Police Rules 1934 would have been a vital evidence to to prove the possibility of availability of these witnesses at the relevant time on the spot and to corroborate the deposition of recovery witnesses. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced herein below for ease of reference "22.49. 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 what ever rank, whether posted at the police station or FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 11/16 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.
17. As per prosecution case, Ct. Gulab, Ct. Ashok, Ct Bijender, HC Ajit and HC Darshan were on patrolling duty in the area at the relevant time. The DD entries in register No II showing departure for patrolling in the area could have been proved by the prosecution. However, neither the said DD entries have been proved nor the DD number of the departure entry has been brought on record. When the provisions of law are not strictly complied with the same can be said to be done with oblique motive and are to be seen with reservation as has been held by Hon'ble High Court of Delhi in Rattan Lal v State, 1987(2) Crimes 29. In the instant case also, failure of prosecution to bring on record the DD entries casts shadow on the prosecution case as whole case rests on the alleged recovery from the accused.
18. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of DKT and handed over to Ct. Ashok. No handing over memo was prepared. Further seal was neither handed over to independent witness nor FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 12/16 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 independent witness or deposited in malkhana. In the circumstances, the possibility of tampering of case property can't be ruled out.
19. Further, the case property produced during examination of PW1 was 30 petties of illicit liquor each consisting 149 quarter bottles branded as Samalkha No.1 whereas as per prosecution version, accused was found in possession of 30 petties, out of which 24 petties contained 50 quarter bottles each, 05 petties contained 12 full bottles each and 01 petty contained 11 full bottles, all branded as Samalkha No.1. Thus, the case property produced before the court was not the same as is alleged to have been seized from the accused which raises doubts over the prosecution version.
20. Moreover, various prosecution witnesses failed to depose as to who had broken the glass of the alleged recovered vehicle. They have also failed to depose as to who had driven the recovered vehicle to the PS implying thereby that the witnesses may not have been present on the spot at the relevant time.
21. Lastly, as per prosecution case the accused was apprehended with the case property in a Santro car and same were seized by the IO vide seizure memo Ex.PW1/C & PW1/D respectively in presence of recovery witnesses. Subsequently, rukka was prepared by IO and handed over to FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 13/16 Ct. Bijender for registration of FIR. Ct Bijender got the FIR registered and then again returned to the spot with original rukka and copy of FIR. It means that seizure memo was prepared before registration of FIR. Ld. Defence Counsel has doubted the prosecution version arguing that the seizure memos Ex.PW1/C & PW1/D bears FIR number and case details in the same ink and handwriting in which document is prepared implying that FIR number was inserted while preparing the document. Reliance has been placed on Mohd. Hashim v. State, 1999 VI AD (Delhi) 569.. Relevant para of the relied judgment is reproduced herein below:
"... Surprisingly, the secret information (Ex.PW7/A) received by the SubInspector Narender Kumar Tyagi (PW7), the notice under Section 50 of the Act (Ex.
PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) 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 FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 14/16 veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
22. In the instant case as well, no explanation has been offered on record as to how the FIR number and case details have appeared on the seizure memos Ex. PW1/C & PW1/D. The same leads one to only one inference that either the said document was prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
23. Considering the facts that no independent witness was joined, Daily Diary entries regarding arrival and departure of recovery witnesses have not been proved, seal was not handed over to independent witness, case property produced before the court was not the same as was allegedly recovered from the accused and the appearance of FIR number and case particulars on the seizure memo, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
24. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 15/16 reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
25. Thus, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Prempal Verma @ Pimu is hereby acquitted of the offence punishable under Section 61/1/14/78 Excise Act. Case property be confiscated to State as per rules, subject to limitation period for revision/appeal and orders of the Appellate Court, if any.
26. File be consigned to record room after necessary compliance.
Announced in open court
on 04.01.2014 Manisha Tripathy
MM06(South)/04.01.2014
Certified that this judgment contains 16 pages and each page bears my signatures.
Manisha Tripathy MM06(South)/04.01.2014 FIR No. 10/09 PS Neb Sarai State Vs. Prempal Verma @ Pimu Page No. 16/16