Delhi District Court
State vs Vijay Kumar on 22 October, 2007
-Page numbers- FIR NO : 1391/99
PS : Sultan Puri, Delhi
U/s 61 of Pb .Excise Act, 1914
IN THE COURT OF DR.SHAHABUDDIN METROPOLITAN
MAGISTRATE:COURT ROOM NO.105, ROHINI COURTS DELHI
State vs Vijay Kumar
FIR NO : 1391/99
PS : Sultan Puri, Delhi
U/s 61 of Pb .Excise Act, 1914
JUDGMENT
A. SL. No. of the case : 63A/3
B. Date of Institution in : 27.03.2000
the court
C. Date of commission of : 28.12.1999
offence
D. Name of the : HC Sh. Jeet Singh
complainant
E. Name of the accused , : Vijay Kumar W/o Sh.
her parentage and Kartar Singh R/o F-
residence 4/216, Sultan Puri, Delhi
F. Offence complained of : U/s 61 of Punjab Ex. Act
or proved 1914
G. Plea of accused : Pleaded not guilty
H. Final Order : Acquitted
I. Date on which : 22.10.2007
judgment reserved
J. Date of such judgment : 22.10.2007
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-Page numbers- FIR NO : 1391/99
PS : Sultan Puri, Delhi
U/s 61 of Pb .Excise Act, 1914
K) BRIEF REASONS FOR THE DECISION OF THE CASE
1. The main prosecution case against the accused is that on 28.12.99 at about 3.45 PM at Main Road near Nangloi Phatak, Sultanpuri, Delhi, within the jurisdiction of PS Sultanpuri Delhi, the accused was found in possession of 53 pouches of country made illicit liquor without having any license / permit and in contravention of a Delhi Administration Notification in this regard. Hence, a chargesheet was filed against the accused after completion of entire investigation for the offence U/s 61 of Punjab Excise Act, 1914 ( in short called as Punjab Ex. Act hereinafter ).
2. Accused appeared in the court and he was supplied with the copies of documents relied upon in the chargesheet as per mandate of section 207 of The Code of Criminal Procedure, 1973 ( in short called as Cr.P.C hereinafter).
3. On 27.02.2001, a charge was framed against the accused for the offence U/s 61 of Punjab Ex. Act to which he did not plead guilty and claimed trial.
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-Page numbers- FIR NO : 1391/99
PS : Sultan Puri, Delhi
U/s 61 of Pb .Excise Act, 1914
4. From the side of prosecution, PW1 HC Sukhbir Singh, PW2 HC Baljeet Singh, PW3 HC Chand Singh and PW4 HC Jeet Singh were examined and then remaining prosecution evidence (in short P/E) was closed.
5. On 22.10.2007, statement of accused was recorded U/s 313 Cr.P.C. in which he denied the allegations against him as false and incorrect but did not want to lead defence evidence.
6. Final arguments were heard today on 22.10.2007 from Ld. APP for the State and from the Ld. Defence Counsel Shri A.N.Sahni on behalf of accused.
7. The main submissions of Ld.APP for State were to the effect that on the basis of entire material on record, the case stands well proved against the accused for the offence U/s 61 of Punjab Excise Act beyond reasonable doubt and that he should be punished strictly as per law.
8. On the other hand, the main submissions of the Ld. Defence counsel were to the effect that accused was falsely implicated in this case; that nothing was recovered from his Contd....P/Next page
-Page numbers- FIR NO : 1391/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 possession; that accused was called in the police station on a false pretext and later on this case was falsely planted upon him; that no independent and reliable person of the locality was joined by investigating officer (in short I/O) during investigation at the alleged place of recovery of illicit liquor from the possession of accused; that the link witness namely Ct. Kuldeep (who was with the I/O during investigation and who had also taken samples of case property to the Excise Laboratory in Delhi) did not come to depose in this matter in support of this case as a whole and more particularly in support of various steps taken by the I/O in his presence including the important step of taking 'Ruqqa' by him to the police station for registration of FIR in this case; that there are several material contradictions in the testimonies of the PW's examined in this case. On the basis of these grounds mainly, acquittal of the accused was prayed for.
9. I perused the entire judicial file minutely in view of the above mentioned rival submissions.
10. Before proceeding further on the merits of this case, I refer to the relevant provisions of section 61 of Punjab Excise Act Contd....P/Next page
-Page numbers- FIR NO : 1391/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 for which the charge was framed against the accused in this matter.
11. The relevant portion of section 61 of Punjab Excise Act is to the following effect:-
"61.(1) Penalty for unlawful import, export, transport, manufacture, possession, etc. -- Whoever, in contravention of any section of this Act or of any rule, notification issued or given there-under or order made, or of any license, permit or pass granted under this Act.--
a) Imports, exports, transports, manufactures, collects or possesses any (intoxicant); or
b) constructs or works any distillery or brewery; or
c) uses keeps or has in his possession any materials still, utensil, implement or apparatus whatsoever, for the purpose o manufacturing any (intoxicant) other than tari:
shall be punishable for every such offence with imprisonment for a term which may be extend to (three years) [ and with find upto two thousand rupees and if found in possession of a working still for the manufacture of any (intoxicant) shall be punishable with the minimum sentence of six months imprisonment and fine of two hundred rupees]."
12. Now turning to the evidence on record, PW1 HC Sukhbir Singh is merely a formal witness as he was posted as duty Contd....P/Next page
-Page numbers- FIR NO : 1391/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 officer at PS Sultanpuri Delhi on 28.12.99 and recorded the FIR in this case of which copy is on record as Ex.PW1/A.
13. PW2 HC Baljeet Singh also happens to be a formal witness as he was posted as MHC(M) at PS Sultanpuri Delhi on 06.01.2000 and case property pertaining to this matter was deposited with him in the police malkhana.
14. As regards testimonies of PW3 HC Chand Singh and PW4 HC Jeet Singh respectively, they have deposed regarding certain steps taken during investigation of this matter. However, in their cross examinations conducted by Ld. Defence counsel Shri A.N.Sahni on behalf of accused, they admitted that there were public persons available at the spot but such persons were not joined during investigation as witnesses. No satisfactory explanation has been given for this lapse on the part of the I/O. PW4 also admitted in his cross examination that he could not give the description of 'Dibba' in which the case property was sealed; that he did not show the bag of the I/O to the accused; that he had not mentioned regarding writing about the seal on documents / memos prepared by him in the present case; that during investigation, people were coming and going but none was Contd....P/Next page
-Page numbers- FIR NO : 1391/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 called to join the investigation. In this way, testimonies of both these witnesses is also not sufficient to connect the accused herein with the commission of crime beyond reasonable doubt.
15. One of the main contentions of Ld. Defence counsel during the course of oral final arguments was that admittedly large number of people were available at the alleged place of recovery of illicit liquor but none of them was joined by the I/O during investigation nor produced for evidence during trial. It is a serious lapse on the part of the I/O for not joining such independent and reliable person of the locality during the course of investigation. I find force in this contention of Ld. Defence counsel. In this regard, I further find support from an important judgment of Hon'ble Punjab and Haryana High Court given in a case, namely, "Darshan Singh V/s State of Haryana" reported as 1997 (3) Crimes, Page-392. In para-6 of this judgment, the Hon'ble Punjab and Haryana High Court held as under:-
"6.The recovery had been effected at the bus stand. Large number of persons pass-through that place. There are shops nearby. It is somewhat surprising that still the explanation is forthcoming that the witnesses from the public Contd....P/Next page
-Page numbers- FIR NO : 1391/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 were not available. The only conclusion that can be drawn in such a situation is that no genuine attempt or even an attempt to join the public witnesses was made. When genuine attempt has not been made to join the public witnesses, one is constrained to observe that in the facts of the present case, it is difficult to believe the official witnesses."
16. There is also an important judgment of Hon'ble Supreme Court of India on this point given in a case namely "Pardeep Narayan, etc V/s State of Maharastra reported as 1995(2) CC Cases, Page-133 (Supreme Court). The Hon'ble Apex Court also emphasised the necessity of independent and reliable persons of the locality in this case. The ratio of Darshan Singh's case (Supra) and Pardeep Narayan's Case (Supra) is found fully applicable to the case under discussion.
17. The other main contention of Ld. Defence counsel was that only police officials have deposed in this matter and that the conviction can not be held merely on the basis of testimonies of police officials alone in such like cases. I find force in this contention also of the Ld. Defence counsel. On this point, there is also an important judgment of Hon'ble Supreme Court of India given in a case reported as Sanspal Contd....P/Next page
-Page numbers- FIR NO : 1391/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 Singh V/s State of Delhi, 1999 CrI. L.J. 19 (Supreme Court). In this judgment, the Hon'ble Apex Court held mainly to the effect that recovery of the arms was based on evidence of police officials alone and that no public witnesses were associated to witness the recovery even though such witnesses were available and hence the conviction on the basis of the testimonies of police officials alone was not found maintainable by the Hon'ble Apex Court in that case.
18. There is yet another important judgment of Hon'ble Delhi High Court on this point given in a case namely, Jagdish Rai V/s State, 1988 CrI. L.J., 785 (Delhi High Court). In this judgment, the Hon'ble Delhi High Court held mainly to the effect that prosecution story depended exclusively on the evidence of the police officials which was held to be unworthy of credit and hence conviction of the accused was set aside in that case on this ground.
19. There is further an important judgment of Hon'ble Delhi High Court on this point given in a case namely Pawan Kumar V/s Delhi Administration 1989 CrI, L.J. 127 (Delhi High Court) . The Hon'ble Delhi High Court held in this case Contd....P/Next page
-Page numbers- FIR NO : 1391/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 mainly to the effect that the I/O concerned did not make earnest efforts to join independent witnesses and in those circumstances, the recovery of the knife from accused was considered doubtful in that case by the Hon'ble Delhi High Court and hence the accused was acquitted.
20. In my considered opinion, the ratio of the judgments given in Sanspal Singh's Case (Supra), jagdish Rai's Case (Supra) and Pawan kumar's case (Supra) applies equally to the case under discussion because the IO in the present case also did not make any sincere efforts to join any public witnesses during the course of investigation.
21. In view of the above mentioned discussion and on the basis of entire oral as well as documentary evidence on record, I am of the considered opinion that prosecution side has miserably failed to prove the essential ingredients of the charge u/s 61 of Punjab Excise Act beyond reasonable doubt against the accused. Hence, accused is entitled to be acquitted. Accordingly, accused Vijay Kumar S/o Shri Kartar Singh is hereby acquitted for the offence U/s 61 of Punjab Excise Act. His bail bond are discharged and his surety also discharged. Case property be destroyed / Contd....P/Next page
-Page numbers- FIR NO : 1391/99 PS : Sultan Puri, Delhi U/s 61 of Pb .Excise Act, 1914 disposed of as per rules after expiry of period of appeal / revision, as the case may be. File be consigned to record room as per rules.
ANNOUNCED AND DICTATED IN THE OPEN COURT ON 22.10.2007 ( DR. SHAHABUDDIN ) METROPOLITAN MAGISTRATE ROHINI COURTS DELHI Contd....P/Next page