Delhi District Court
Case Of "Sadhu Singh vs State Of Punjab" 1997(3) Crime 55 By The ... on 25 June, 2018
IN THE COURT OF MS. DEEPIKA SINGH,
METROPOLITAN MAGISTRATE-06, WEST, TIS HAZARI COURT
State v. Jagdish
FIR No. 154/13
PS Uttam Nagar
U/s 33 of the Delhi Excise Act
JUDGMENT
Case No. : 63734/16
Date of Institution : 21.05.2013
Date of Commission of Offence : 25.03.2013
Name of the complainant : HC Satpal Dagar
Name & address of the accused : Jagdish,
S/o Bihari Lal,
R/o H. No. 35, Gali No.5,
Kumhar Colony, Vikas Nagar, Delhi
Offence complained of : U/s 33 of the Delhi Excise Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of announcing of judgment : 25.06.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section 33 of the Delhi Excise Act, 2009.
2. The briefly stated story of the prosecution is that on 25.03.2013, at about 8.20 pm, at Road Near S-Block, Shiv Shakti Nagar, Mohan Garden, Delhi, accused State v. Jagdish U/s 33 of the Delhi Excise Act 1/9 FIR No. 154/13 PS Uttam Nagar was found in possession of two plastic katta containing 50 of 180 ml of Mastana Masaledar Deshi Sharab for sale in Haryana and other katta containing 50 of 180 ml of Rasila Santra for sale in Haryana" which were seized without any permit or licence. Thus the accused is alleged to have committed an offence under Section 33 of the Delhi Excise Act, 2009. FIR was lodged on the basis of rukka and investigation was carried out.
3. Charge sheet was filed against the accused in the court. Copy of charge-sheet and other relevant documents were supplied to the accused. Charge under Section 33 of the Delhi Excise Act was framed against the accused vide order dated 20.01.2014, to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined two witnesses.
5. PW-1 HC Satpal Dagar deposed that on 25.03.2013, he was on patrolling duty in the area along with Ct. Sanjeev. At about 8.20 pm, when they reached near Shiv Shakti Mandir, S-Block, Mohan Garden. They noticed accused, present in court that day and correctly identified by him, while carrying a plastic sack. He got panicked after seeing him in the uniform and tried to return creating suspicion. They chased and apprehended him and checked the sack. He found it containing two cartons of countyrymade liquor in form of quarter bottles. He asked 3-4 passerby to join as witness but none agreed and left the spot without disclosing their names and address. He checked the sack and found it State v. Jagdish U/s 33 of the Delhi Excise Act 2/9 FIR No. 154/13 PS Uttam Nagar containing 2 cartons each having 50 quarter bottles of Rashila Santra for sale in Haryana only and the other carton was having Mastana Masaledar Desi Sarab. He separated 15 quarter bottles out of each of the carton as sample and marked the same as A1 to A15 (Mastana Masaledar Brand) and B1 to B15 (Rashila Santra). The samples were sealed separately with the seal of SPD. Rest of the quarter bottles were put back into the same sack and the sack was also sealed with the same seal. He completed form M29 at the spot. Seal was handed over to Ct. Sanjeev after use. Thereafter, he seized abovesaid case property vide seizure memo Ex.PW1/A and prepared the tehrir Ex.PW1/B and handed it over to Ct. Sanjeev for the registration of FIR. He went to PS and got registered the FIR and came at the spot and handed over copy of the FIR and original Tehrir to him. He was accompanied with HC Jitender. He handed over the accused prepared documents and the recovered liquor to the 2 nd IO i.e HC Jitender. HC Jitender prepared site plan ExPW1/C at his instance. After recording his statement, he left the spot. The copy of form M-29 is Ex.PW1/D. Thereafter, MHC(M) produced abovesaid case property i.e one plastic sack bearing the seal of SPD. It was found containing two cartons each containing 35 quarter bottles in total. One carton contains Rashila Santra Brand and other carton contains Mastana Masaledar brand. Same was shown to the witness who correctly identify these quarter bottles to have recovered from the possession of accused and case property is collectively Ex.P1.
State v. Jagdish U/s 33 of the Delhi Excise Act 3/9
FIR No. 154/13 PS Uttam Nagar
6. During cross examination, witness admitted that they left the PS at about 6 pm on two wheeler. It was correct that spot was surrounded by residential area. Public persons were coming and going from the spot. No notice served upon them who refused to join the investigation. I prepared form no.M-29, seizure memo was prepared before sending the rukka. Ct. Sanjeev went with rukka at about 10 pm and came back at the spot at about 12.30 pm. During this period, he did not prepare any document. He had not made any alteration or deletion of those documents. IO prepared site plan at his instance and he obtained his signatures at the same. It was natural dark but street light was there but not shown in the site plan Ex.PW1/C. Seal was given back to him on the next day in the PS. He denied the suggestion that accused was picked from home and falsely implicated in this case and alleged recovery was fake and planted. He further denied the suggestion that he was deposing falsely.
7. PW-2 Ct. Sanjeev deposed in his examination-in-chief on the same lines as PW-1 HC Satpal Dagar. He further deposed that accused was arrested vide arrest memo Ex.PW2/A and his personal search was taken vide memo Ex.PW2/B signed by him at point-A.
8. During cross examination, witness admitted that the spot was surrounded by residential area. Public persons were coming and going from the spot. No notice was served upon them who refused to join the investigation. IO had not made any alteration or deletion of those documents. It was natural dark but State v. Jagdish U/s 33 of the Delhi Excise Act 4/9 FIR No. 154/13 PS Uttam Nagar street light was there but not shown in the site plan Ex.PW1/C. He returned the seal on the next day. No handing over or written memo was prepared. Case property was brought to PS on rickshaw. He denied the suggestion that accused was picked from home and falsely implicated in this case and alleged recovery was fake and planted.
9. Thereafter, the prosecution evidence was closed. Statement of accused was recorded wherein he denied all the allegations and pleaded innocence. No defence evidence was led by the accused.
10. I have heard the submissions addressed by the Learned APP for state and by the Learned Counsel for accused and carefully perused the record.
11. Learned Defence Counsel has submitted that the accused has been falsely implicated in this case. No public person was joined in the investigation despite availability.
12. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. It has been held in State v. Jagdish U/s 33 of the Delhi Excise Act 5/9 FIR No. 154/13 PS Uttam Nagar case of "Sadhu Singh V/s State of Punjab" 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
13. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-
"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 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."
14. In the present case, the above said provision have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be State v. Jagdish U/s 33 of the Delhi Excise Act 6/9 FIR No. 154/13 PS Uttam Nagar relevant to refer to a case law reported as "Rattan Lal V/s State" 1987 (2) Crimes 29 wherein it was held by the Hon'ble High Court of Delhi, "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."
15. Also, no Public person has been made as a witness in the present case. Admittedly, the spot was a public area and public persons were present at the spot, however, no sincere efforts was made by the IO to persuade them to join the investigation. No notice was served upon the said witnesses. It has been held in "Roop Chand V/s The State of Haryana",1999 (1) C.L.R 69, by the Hon'ble Punjab & Haryana High Court that:-
"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 State v. Jagdish U/s 33 of the Delhi Excise Act 7/9 FIR No. 154/13 PS Uttam Nagar 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 he 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 worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
16. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of SPD and handed over to Ct. Sanjeev. However, no handing over memo was prepared. Also, the seal was neither handed over to independent witness nor 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 an independent witness.
17. In view of the above discussion, court is of the considered opinion that story of the prosecution has become doubtful and the benefit of doubt certainly goes in favour of the accused. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration State v. Jagdish U/s 33 of the Delhi Excise Act 8/9 FIR No. 154/13 PS Uttam Nagar the facts and circumstances of the case, accused Jagdish S/o Sh. Bihari Lal is acquitted for the charges punishable U/s 33 of the Delhi Excise Act levelled against him.
18. As per section 437A Cr.P.C accused is admitted to bail on him furnishing personal bond in the sum of Rs.20,000/- with one surety of like amount.
19. File be consigned to the record room after due compliance. Announced in open court on 25.06.2018.
Certified that this judgment contains (Deepika Singh)
9 pages and each page bears MM-06, (West)
my signature. THC, Delhi
State v. Jagdish U/s 33 of the Delhi Excise Act 9/9
FIR No. 154/13 PS Uttam Nagar