Delhi District Court
In Re: State vs Inderjit Singh on 14 January, 2010
IN THE COURT OF GAURAV RAO: METROPOLITAN
MAGISTRATE: DELHI
In Re: STATE VERSUS INDERJIT SINGH
F.I.R. No: 167/02
U/s 61/1/14 Punjab Excise
Act
P.S. Nangloi
Date of Institution of Case : 23.12.2002
Judgment Reserved for : 14.01.2010.
Date of Judgment : 14.01.2010
JUDGEMENT:
(a) The serial no. of the case : 2358/3/08
(b) The date of commission of offence: 01.03.2002
(c) The name of complainant : Ct. Balbir Singh
(d) The name, parentage, : Inderjit Singh of accused S/o Sh. Ganpat Ram Singh, R/o H. No. 16/412, Gali NO. 13, Hardhyan Singh Road, Bapa Nagar, Karol Bagh, 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 : 14.01.2010 Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 01.03.2002 at about 8.30 PM at main Rohtak road, Sultanpuri Mode, Nangloi bus stand, Delhi within the jurisdiction of police station Nangloi accused Inderjit Singh was found in possession of one plastic Katta containing 50 pouches of illicit liquor without any permit or licence and thereby the accused committed offence u/s 61 of Punjab Excise Act 1914.
2. Charge sheet was filed in the court, documents were supplied in compliance of section 207 Cr.p.c. and vide order dated 27.05.2003, charge u/s 61/1/14 Punjab Excise Act was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined four witnesses, whereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself 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 HC Kamal Singh deposed that on 01.03.2002 he was posted as MHCM at PS Nangloi and on that day IO HC Rohash handed over to him case property i.e. one sealed plastic katta and one sample both sealed with the seal of RSH which he deposited the same in malkhana vide entry no. 3748 in register no. 19 as Ex.PW1/A. He further deposed that on 21.03.2002 he handed over the sealed sample to Ct. Balbir Singh vide RC no. 138/21/02 for depositing the same in excise office and till the time the case property and sample remained in his possession nobody tampered with it.
5 PW 2 HC Ashok Kumar deposed that on 01.03.2002 he was posted as Duty Officer in PS Nangloi on that day on receipt of Rukka brought by Ct. Balbir Singh sent by HC Rohtash on the basis of which he registered the case FIR no. 167/02 as Ex.PW2/A and also made endorsement on the rukka as Ex.PW2/B. 6 PW 3 Ct. Balbir Singh deposed that on 01.03.2002 he was posted at PS Nangloi and on that day at about 8.30 pm while he was on patrolling duty he reached at Sultanpuri more bus stand where he saw one person was standing at bus stand along with one white colour katta. On seeing him, he started walking with fast steps. He deposed that on suspicion, he chased him and got hold of him and checked the katta which was filled with liquor pouches. He informed to PS and HC Rohtash reached at the spot at about 9.00 pm. He handed over the accused Inderjit (correctly identified) and katta to the IO. IO/HC Rohtash Singh checked the katta which was found containing 50 pouches of illicit liquor make Saufi Sikander. IO separated one pouch as sample and remaining pouches kept in the same bag and both sealed with the seal of RSH vide Ex.PW3/A and filled form M-29. IO recorded his statement as Ex.PW3/B and prepared rukka which he took to PS and got the case registered. He came back at the spot along with rukka and copy of FIR and handed over to the IO. IO arrested the accused vide Ex.PW3/C and conducted his personal search vide Ex.PW3/D. IO prepared the site plan at his instance. Accused was released on bail and case property was deposited in malkhana. He further deposed that on 21.03.2002, he took the sealed sample sealed with the seal of RSH to excise office and deposited the receipt of the same with MHCM and till the time the sample remained in his possession nobody tampered with it. This witness further identified the case property as Ex.P1 to P49 and katta as Ex.P50.
7. In his cross examination he stated that he was alone on patrolling duty. He stated that public persons were also present at bus stand. He stated that he did not ask public persons to join the investigation. He stated that he does not remember in which hand he was holding the katta. He stated that the katta recovered from the possession of accused and there was no mark on the katta. He stated that he was alone and he informed the PS at about 8.30 pm and accordingly IO HC Rohtash came at the spot at about 9.00 pm by foot. He stated that he counted the pouches of liquor which were 50 in number. He stated that he does not remember whether Saufi Sikander was written in English or Hindi. He stated that pouches contents were 180 ml. He stated that site plan was prepared at the spot and he came back to the spot at about 10.00-10.15 pm. He stated that one person from the house of accused was present at the spot but he does not know what was his relation with the accused. He stated that he does not know the name of surety. He stated that houses were situated about 250-300 yards. He stated that he does not know whether IO asked public persons to join the investigation or not. He stated that he deposited the case property in malkhana. He denied the suggestion that nothing was recovered from the accused and illicit liquor was falsely planted upon him. He further denied the suggestion that all proceedings were conducted while sitting in PS. He denied the suggestion that he was deposing falsely.
8. PW 4 HC Rohtash deposed that on 01.03.2002, he was posted at PS Nangloi and on receipt of DD No. 36 B he went to the spot at Sultanpuri more, Rohtak road where Ct. Balbir Singh met him along with accused (correctly identified) and one plastic katta which he handed over to him. He checked the plastic katta and found 50 pouches of Saufi Sikendar liquor on it. He separated one pouch as sample and sealed with the seal of RSH by keeping the same in plastic box and remaining pouches were kept in the same plastic katta and took the same in possession vide Ex.PW3/A. He filled the form M-29 and recorded the statement of Ct. Balbir Singh vide Ex.PW3/B and prepared the rukka as Ex.PW4/A and sent to Ct. Balbir Singh to PS for registration of the case. After registration of the case, he came back to the spot along with rukka and copy of FIR. He prepared the site plan as Ex.PW4/B at the instance of Ct. Balbir. He arrested the accused vide Ex.PW3/C and conducted his personal search vide Ex.PW3/D. Accused was released on bail and case property was deposited in malkhana. He further deposed that on 21.03.2002 he sent Ct. Balbir Singh to excise office for depositing the sample. This witness further identified the case property which was recovered from the accused and it was observed that 7 pouches were empty.
9. In his cross examination he stated that he reached at the spot at about 9.00 pm by foot. He stated that he was alone. He admitted that some public persons were already present at the spot. He stated that he asked some public persons to join the investigation but none agreed and they left the spot without telling their names and addresses. He stated that he does not remember whether something was written on plastic katta or not. He stated that he measured one pouch which was 180 ml as written on the pouch. He stated that there is no residential area near the spot. He stated that Ct. Balbir came at the spot on foot along with FIR at about 10.40 pm. He stated that he informed the relative and family members of the accused. He stated that he does not remember the name of surety. He stated that accused he released the accused on bail at 11.30 pm. He stated that he left the spot at 11.40 pm and deposited the case property at malkhana. He denied the suggestion that he was deposing falsely being police official. He further denied the suggestion that nothing had been recovered from the possession of the accused.
10. This is all as far as prosecution evidence in the matter is concerned.
11. 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.
12. 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 be joined during investigation or raid or that the testimony of police official is unreliable in the absence of any independent corroboration.
13. 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.
14. 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 then 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''.
15 In the present case, PW3 and PW4 admitted that the place of recovery is a populated area and surrounded by various houses and shops however, no notice was given upon them who refused to join the investigation and no proceedings u/s 187 IPC was initiated against those refused.
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. In fact, PW3 admitted that he did not ask anyone to join the investigation.
16. Apart from the absence/non-joining of public witnesses in the present case prosecution story suffers from numerous infirmities.
17 PW3 claimed that he deposited the case property in the Malkhanna whereas PW4 IO claimed that it was he who deposited the case property in the Mal Khanna but, it will be worthwhile to note that the extract of register no. 19 would show that name of the depositor has not been mentioned therein. In fact, in over all facts and circumstances of the case, the recovery becomes all the more so doubtful as admittedly, no signatures of the person who deposited the case property were obtained by the MHC (M) in register no. 19 at Sl. No. 3. Even the name/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 investigation was carried on by the police officials. The entire procedure of recovery, deposit of same in Malkhanna and preservation of the case property was done in such a casual manner that it showed utter disregard to the establish procedure of investigation and thereby rendering the trial futile.
18 In this case no efforts were made to hand over the seal after use to independent public persons and in such cases in view of 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.
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. Further admittedly, SHO PS Nangloi did not visit the spot of recovery and the excise form was admittedly filled at the spot itself and sealed with the seal of RSHHHH however, form 29 bears the signatures of SHO PS Nangloi. The same could not be explained by the prosecution.
'' In 1994 Drugs cases page 154'', titled as ''Ghanshyam V/s State'', Hon'ble Court of Delhi has held that:
''If Road Certificate (RC) vide which the the sample was taken to laboratory for examination is not produced in court, then that causes sufficient doubt to the prosecution story and it breaks the important link in the prosecution case''.
'' In 72(1999) DLT 435'', titled as ''Sunil V/s State'', Hon'ble High Court of Delhi regarding non proving of the excise result has held that:
''For want of proof of Analyst's Report, it cannot be presumed that what was recovered from the accused was liquor''.
20 The cases where the possession of a very thing/article itself entails penal consequences, then the liability of prosecution becomes all the more onerous to prove the possession of that particular commodity/article by the accused through cogent documentation, which is not there.
21. 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.
22. 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.
23. 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 persons beyond the shadow of doubt. Accused Inderjeet Singh 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.
24. File be consigned to Record Room as per rules and procedure.
Announced in the open (Gaurav Rao)
Court on 14.01.2010. MM (W)/Delhi
F.I.R. No: 167/02
U/s 61/1/14 Punjab Excise
Act
P.S. Nangloi
14.01.2010.
Pr: Ld. APP for state.
Accused on bail and present.
Final arguments heard. Put up for judgment at 4:00 p.m. At 4:00 p.m. Vide my separate judgment accused has been acquitted in the charges in the present matter.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
(Gaurav Rao) MM (W)/Delhi.
14.01.2010