Delhi District Court
State vs . Ashok Kumar on 16 October, 2012
State vs. Ashok Kumar
IN THE COURT OF Ms. JYOTI KLER
Metropolitan Magistrate-11, South, New Delhi
State Vs. Ashok Kumar
FIR N0. : 220/11
U/S : 33 Delhi Excise Act, 2009
PS : Fatehpur Beri.
JUDGM ENT ;
a) Sl. No. of the case : 52/03/12
b) Date of commission of offence : 13.10.2011
c) Date of institution of the case : 13.12.2011
d) Name of the complainant : HC Subhash Chand
e) Name & address of the : Ashok Kumar s/o Panna Lal
accused R/o H.No. Y-80/69,
Okhla Phase II, New Delhi.
f) Offence complained off : 33 Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 11.10.2012
i) Final order : Acquitted
j) Date of Judgment : 16.10.2012
FIR No. 220/11 Fatehpur Beri Page 1 of 6
State vs. Ashok Kumar
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Briefly stated, accused Ashok Kumar has been sent to face trial for offence U/s 33 Delhi Excise Act with the allegations that on 13.10.2011 at time unknown, at Arjangarh Airforce Station, M G Road, a car make Fiat Palio, color grey bearing regn. no. DL 3CV 8886 was found in accidental condition carrying 1725 quarter bottles of Joshila Santara Masaledar Sharab for sale in Haryana only. On further enquiry, it was revealed that the accused Ashok was the owner of the car. A notice u/s. 133 M.V. Act was served upon him and on the basis of reply of the same, the accused was arrested in the present case.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused person was consequently summoned. A formal charge U/s 33 Delhi Excise Act was framed against the accused on 30.04.2012 to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, six witnesses have been examined on behalf of the prosecution. Out of these six witnesses, PW1 HC Subhash Chander, PW2 Ct. Surender and PW3 Ct. Vijender are recovery witnesses. PW4 Ct. Murari Lal had joined the investigation with PW1 on 16.10.11 and accused was arrested in his presence. PW5 HC Ram Niwas is the second IO of the case. He had collected the result of samples sent for chemical examination and filed challan before the court. PW6 Ct. Dilip is a formal witness who took the sample to Excise Office for chemical examination.
4. Documents proved by the prosecution include seizure memo of the recovered liquor and car Ex PW1/A, Rukka Ex PW1/B, site plan Ex.PW1/C, FIR No. 220/11 Fatehpur Beri Page 2 of 6 State vs. Ashok Kumar Notice u/s. 133 M.V. Act and reply of the same Ex.PW1/D, arrest memo and personal search memo which are Ex PW1/E and Ex PW1/F respectively and seizure memo of RC of the car which is Ex.PW1/G. Recovered liquor is Ex.P1 (colly.). Identity of the vehicle no. DL 3CV 8886 was not disputed by the accused. Accused further admitted the genuinity of FIR and the same is Ex.PW F/D1.
5. Upon completion of P.E., statement of accused U/s 313 Cr.P.C. was recorded on 9.10.2012, wherein he has refuted the allegations levelled against him in toto and stated that he along with his vehiclewas lifted from his residence and thereafter falsely implicated in this case.
6. I have heard the rival submissions and carefully perused the record.
7. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 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."
8. Chapter 22 rule 49 of the Punjab Police Rules, 1934 which is reproduced herein for ready reference, 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 FIR No. 220/11 Fatehpur Beri Page 3 of 6 State vs. Ashok Kumar 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.
9. In the present case, the above said provision appears to 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 relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "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."
10. In the instant matter, PW1,2 and 3 have stated in their cross examination that public persons were available near the spot as Airforce Station is situated nearby and guards remain available on the gate of the station. However, IO did not give any notice either to the passersby or to the guards of the Airforce Station to join the investigation. It is note worthy that I.O has not made any serious endeavour to join the passersby/guards in the investigation of the case. IO did not serve written notice to the public persons who refused to FIR No. 220/11 Fatehpur Beri Page 4 of 6 State vs. Ashok Kumar join the police proceedings. At least in the facts and circumstances of the present case, IO could have very well served the public persons with notice in writing requiring them to join the police proceedings or to face action u/s 187 IPC in as much as in the present case there was no possibility of accused escaping his apprehension / arrest or crime going undetected in as much as by the said time, accused had already absconded from the spot since time unknown. Failure on the part of prosecution to make sincere efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws: In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. 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 shopkeepers 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 under the IPC''.
Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: 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 FIR No. 220/11 Fatehpur Beri Page 5 of 6 State vs. Ashok Kumar 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 he witnesses from the public had refused to 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 nonjoining 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''.
11. Perusal of case file suggest that the vehicle allegedly used for carrying illicit liquor had met with an accident. However, no efforts were made by the IO to get the vehicle inspected through a mechanical inspector. Further, there is no mention of preparation of any handing over or receiving memo of the seal impression which was used to seal the case property by PW1.
12. In view of the aforesaid discussion, I am of the opinion that prosecution has failed to prove its case against the accused beyond all reasonable doubts. Accused accordingly stands acquitted for the offence U/s 33 Delhi Excise Act.
Announced in the open court
on 16.10.2012 (Jyoti Kler)
M.M11(South)/Saket
New Delhi
FIR No. 220/11 Fatehpur Beri Page 6 of 6