Delhi District Court
14. It Has Been Held In Case Of "Sadhu ... vs State Of Punjab" 1997(3) Crime on 25 September, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Rajni
FIR No. 40/05
PS Paschim Vihar
U/s 61 Punjab Excise Act
JUDGMENT
C C No. : 1108/3/10
Date of Institution : 08.05.2006
Date of Commission of Offence : 15.01.2005
Name of the complainant : Ct. Suresh Kumar No. 1743/W
PS Paschim Vihar
Name & address of the accused : Rajni
W/o Baljeet
R/o H. No. B-640
Camp No. 4, Jawalapuri, Delhi
Offence complained of : U/s 61 Punjab Excise Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 25.09.2014
Date of announcing of judgment : 25.09.2014
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 61 Punjab Excise Act.
State v. Rajni U/s 61 Punjab Excise Act 1/10 FIR No. 40/2005 PS Paschim Vihar
2. The briefly stated story of the prosecution is that on 15.01.2005 at about 7.15 pm at Red Light Point, Rohtak Road, DTC Depot, Delhi within the jurisdiction of PS Paschim Vihar the accused Rajni was found in possession of one plastic cane containing 10 bottles (750 ML) of without any permit or license and thus the accused is alleged to have committed an offence under Section 61 Punjab Excise Act. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter charge under Section 61 Punjab Excise Act was framed against her by the Ld. Predecessor vide order dated 07.08.2012 to which she pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined four witnesses i.e (1) HC Madan Singh (2) ASI Suresh Kumar (3) HC Raja Ram (4) SI Ashok Kumar
5. PW-1 HC Madan Singh deposed that on 15.01.2005 he was posted at PS Paschim Vihar as duty officer. He proved the FIR as Ex. PW1/A and endorsement on rukka as Ex. PW1/B.
6. PW-2 ASI Suresh Kumar deposed that on 15.01.2005 he was posted at PS Paschim Vihar. On that day he was on patrolling duty. At about 07:15 PM, when he was present at Camp No.4 Red Light, Jawala Puri, he saw that one lady having a plastic cane in her hand was coming from Nangloi side. On seeing the witness, she turned back and started walking. On being suspicious, he State v. Rajni U/s 61 Punjab Excise Act 2/10 FIR No. 40/2005 PS Paschim Vihar apprehended the accused. On checking the said cane, smell of liquor came out. Thereafter, he informed PP Mianwali from where HC Ashok Kumar came at the spot. He handed over the accused and case property to him. IO recorded his statement Ex.PW2/A. IO asked 3/4 passersby to join the investigation but none agreed and left the spot without disclosing their names and addresses. He brought one empty bottle, one bucket and one plastic mug from a nearby tea shop. IO measured the quantity of liquor which was 10 bottles. One bottle was taken out for sample purpose and remaining were poured back in the said cane. The sample bottle as well as the plastic cane were sealed with the seal of 'AK'. Form M-29 was filled up by the IO and seal was handed over to the witness after use. IO took the possession of case property vide seizure memo Ex.PW2/B. Thereafter, IO prepared the rukka and sent the witness to PS for registration of FIR. After registration of FIR, he returned back at the spot and handed over original rukka and carbon copy of FIR to the IO. IO prepared the site plan at his instance. Thereafter, IO arrested the accused vide arrest memo Ex.PW2/C. The accused was released on bail at the spot. The case property was deposited in the malkhana. Witness identified the accused and the case property in the court. The cane is Ex.P1. It was observed by the court that the seal of the cane was broken and cane was totally empty.
7. During cross examination, he denied the suggestion that the number of FIR was written by the IO on the top of the lid of the cane. He stated that he left for State v. Rajni U/s 61 Punjab Excise Act 3/10 FIR No. 40/2005 PS Paschim Vihar patrolling at about 05:00 PM. He admitted that he cannot give DD No. of his departure and arrival at the spot. He was free from the spot at 09:45 PM. He returned the seal next day to the IO without any memo or case diary. He admitted that that source of light is not shown in the site plan. Witness stated that none agreed to join the proceedings from public and no action was taken against any passersby.
8. PW-3 HC Raja Ram deposed that on 15.01.2005, he was posted at PS Paschim Vihar as Head Constable and was working as MHC(M). On that day, HC Ashok Kumar deposited the case property i.e one plastic cane of liquor and one sample bottle of liquor duly sealed with the seal of AK along with form M-29. The same was entered into register no.19 at serial no.3007 and was deposited in Malkhana. The copy of the same is Ex. PW3/A. On 20.04.2005 Ct. Depender took the sample bottle of liquor along with form M-29 for chemical analysis in the Excise Lab, ITO vide RC No. 295/21/05. During cross examination, he denied the suggestion that he is deposing falsely being interested witness.
9. PW-4 SI Ashok Kumar deposed that on 15.01.2005 he was posted at PS Paschim Vihar as HC. On that day he received DD No.25 PP Miyawali and went to the spot i.e red light point Rohtak Road near Nangloi DTC Depot. There Ct. Suresh met him and he produced the accused and one plastic cane stating that cane was recovered from possession of accused. He recorded the State v. Rajni U/s 61 Punjab Excise Act 4/10 FIR No. 40/2005 PS Paschim Vihar statement of Ct. Suresh and checked the cane which was found containing liquid smelling of liquor. He requested some passersby to join investigation but none agreed and left the place without disclosing their particulars. He sent Ct. Suresh to near by tea shop to bring empty bucket, mug and a bottle of 750 ml. He brought the same and he measured the liquor of cane and same was found equivalent to 10 bottles of 750 ml each. He kept separate one bottle of 750 ml filled with liquor as sample and remaining liquor was poured in the same cane. Sample bottle and cane were sealed with the seal of AK. He filled form M-29 and seal after use was handed over to Ct. Suresh. He took in possession the case property vide seizure memo Ex. PW2/B. He prepared rukka Ex. PW 4/A and gave it to Ct. Suresh for registeration of FIR. Accordingly Ct. Suresh got FIR registered at PS Paschim Vihar and gave him original rukka and copy of FIR. Witness prepared site plan Ex. PW 4/B at the instance of Ct. Suresh. He arrested the accused vide arrest memo Ex. PW2/C. Accused was released on bail and case property was deposited at malkhana PS Paschim Vihar. He recorded the statement of witnesses. Later he got deposited the sample bottle in Excise lab on 20.04.2005 to Ct. Dipender. After receiving result from excise lab, charge sheet was prepared and filed before the court. Result of excise lab was Ex. PW4/C. He identified the accused in the court.
10. Thereafter, the PE was closed. Statement of accused was recorded u/s 281 Cr.P.C, wherein she denied all the allegations and pleaded innocence. No DE State v. Rajni U/s 61 Punjab Excise Act 5/10 FIR No. 40/2005 PS Paschim Vihar was led despite opportunity.
11. I have heard the submissions addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
12. The Ld. Counsel for accused has submitted that no public person was joined in the investigation despite availability nor any action was taken by the IO against those public persons.
13. 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.
14. 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."
State v. Rajni U/s 61 Punjab Excise Act 6/10 FIR No. 40/2005 PS Paschim Vihar
15. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference:- 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.
16.Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained
17. 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 wherein it was held by the Hon'ble Delhi High Court "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 State v. Rajni U/s 61 Punjab Excise Act 7/10 FIR No. 40/2005 PS Paschim Vihar creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
18. No Public person has been made as a witness in the present case. Admittedly there were 3-4 passersby at the place of incident. However, no sincere efforts was made by the IO to persuade them to join the investigation. No notice was served upon the said witnesses.
19. 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 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 State v. Rajni U/s 61 Punjab Excise Act 8/10 FIR No. 40/2005 PS Paschim Vihar 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''.
20. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of AK and was handed over to Ct. Suresh. However, no handing over memo was prepared. Also, 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 or deposited in malkhana. In these circumstances, the possibility of tampering of case property can't be ruled out.
21. Furthermore, it was observed by the court during the examination in chief of PW Ct. Suresh that the case property was produced with broken seal and Cane was empty. This further puts question mark on the prosecution story and raises doubts of tampering with case property.
22. Hence, in view of the above, story of the prosecution becomes 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 the facts and circumstances of the case, accused Rajni is acquitted for the charges punishable U/s 61 Punjab Excise Act State v. Rajni U/s 61 Punjab Excise Act 9/10 FIR No. 40/2005 PS Paschim Vihar levelled against her.
23. As per section 437A Cr.P.C accused is admitted to bail on her furnishing personal bond in the sum of Rs.10,000/- with one surety of like amount. ANNOUNCED ON 25.09.2014 (SAUMYA CHAUHAN) MM-07(West)/ Tis Hazari Court /25.09.2014 Certified that this judgment contains 10 pages and each page bears my signatures.
(SAUMYA CHAUHAN)
MM-07(West)/ Tis Hazari Court /25.09.2014
State v. Rajni U/s 61 Punjab Excise Act 10/10
FIR No. 40/2005 PS Paschim Vihar