Delhi District Court
State vs . Kanwar Lal Etc. on 19 February, 2010
FIR No. 158/00
P.S Kanjhawala
Page no.1
IN THE COURT OF SHRI DEEPAK WASON
METROPOLITIAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 158/00
U/s. 61/1/14 Excise Act
PS: Kanjhawala
State vs. Kanwar Lal etc.
Date of Institution of case:-20.07.01
Date of Judgment reserved:- 19.02.10
Date on which Judgment pronounced:- 19.02.10
JUDGMENT
Sl. No of Case :350/3 Date of commission of offence :05.08.2000 Name of complainant :HC Satya Prakash, no.1839/NW DCP/NW.
Name and address of accused :1.Kanwar Lal, S/o. Sh. Ram Singh, R/o. Village Sidhipur Lawa, P.S. Bahadurgarh, Jhajjar.
2.Manoj Kumar, S/o. Sh. Lakhi Ram, R/o. Village Sidhipur Lawa, P.S. Bahadurgarh, Jhajjar.
Offence complained of :61/1/14 Punjab Excise Act.
Plea of accused :Pleaded not guilty Date of order :19.02.2010 Final order :Acquitted BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
Contd..../-FIR No. 158/00
P.S Kanjhawala Page no.2 The accused persons have been sent to face trial under Section 61/1/14 & 78 Excise Act on the allegations that on 05.08.00 at about 9.30 a.m., at Village Rani Khera Near Canal, Service Road, Delhi, they both were found in possession of one bag containing 180 pouches of liquor, which they were carrying in a scooter bearing no. DL-4SAB- 0120 without any permit or licence and on the basis of the said allegations, the present FIR bearing no. 158/00 was registered at Police station Kanjhawala and both the accused have been charged with the offences under Section 78,61/1/14 Punjab Excise Act.
2. After investigation, charge sheet was filed against the accused persons. The copies of charge sheet were supplied to the accused persons in compliance of Section 207 Cr.P.C. and charge U/s. 78,61 of Punjab Excise Act, 1914 was framed against the accused persons to which they have pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused and the prosecution has examined six witnesses. However, the list of witnesses contain eight witnesses.
Contd..../-
FIR No. 158/00P.S Kanjhawala Page no.3
4. PW 1 is WHC Saroj Bala. The said witness is the duty officer who has registered the present FIR no.158/2000 under Section 78,61/1/14 Punjab Excise Act. She has proved the registration of the FIR as Ex. PW 1/A.
5. PW 2 is Head Constable Jeet Singh. He is the concerned MHC(M) and has deposed that on 05.06.00, HC Hari Chand had deposited one bag, one plastic box sealed with the seal of JS alongwith form 29 and one scooter bearing no. DL-4SAB-0120 with him for which he had made an entry at serial no.614. He has further deposed that on 16.8.00, sample was sent to excise office through Ct. Surender vide RC no.70/21. He was cross examined by Ld. Defence counsel.
6. PW 3 is Additional Sub-Inspector Satyaprakash. He is the witness of initial recovery and has deposed regarding the apprehension of the accused persons alongwith illicit liquor. He has further deposed regarding the proceedings conducted by the IO. He was cross examined by Ld. Defence counsel.
7. PW 4 is Constable Dinesh. He has deposed that on 05.08.00, he was on patrolling duty alongwith HC Hari Contd..../-
FIR No. 158/00P.S Kanjhawala Page no.4 Chand, IO of the case. He has deposed regarding the proceedings conducted by the IO. He is also a witness of recovery. He was also cross examined by the accused.
8. PW 5 is Constable Surender Singh. The said witness has deposited the samples alongwith excise form at the excise office.
9. PW 6 is Head Constable Hari Chand, IO of the case. He has deposed that on 05.08.00, he alongwith Ct. Dinesh were on patrolling duty on Govt. motorcycle and reached at Village Rani Khera, near nahar where they met HC Satya Prakash and one scooter bearing no. DL-4SAB- 0120 make Vespa and the accused persons alongwith illicit liquor. He recorded the statement of HC Satya Prakash which is Ex. PW 3/A. He has further deposed that he checked the bag which was found containing 180 pouches of illicit liquor. He has further deposed that he separated five pouches for sample and kept in a plastic dibba and sealed with the seal of JS. He has further deposed regarding filling form M-29, seizing the case property and scooter vide Ex. PW 3/B, preparing of rukka Ex. PW 6/A, getting FIR registered through Ct. Dinesh, preparing of site plan Ex. PW 3/C at the instance of HC Satya Prakash, arresting the Contd..../-
FIR No. 158/00P.S Kanjhawala Page no.5 accused persons vide memo Ex. PW 4/A and Ex. PW 4/C and conducting their personal search vide memo Ex. PW 4/B and Ex. PW 4/D. He has further deposed that on 16.08.00, samples were sent to Excise Laboratory through Ct. Surender and after receiving of the result, he has prepared the challan and filed the same in the court. This witness was cross examined by the accused at length.
10. No other witness was examined by the prosecution and accordingly, prosecution evidence was closed vide order dt. 05.02.10.
11. Subsequent to the recording of statement of witnesses, joint statement of accused persons under Section 281 Cr.P.C. was recorded and all the incriminating evidence coming on record was put to the accused persons in which they have submitted that they have been falsely implicated in the present case. They have further submitted they do not wish to lead any defence evidence. Thereafter, the matter was posted for final arguments.
12. I have heard the final arguments advanced by both the parties and perused the record.
Contd..../-
FIR No. 158/00P.S Kanjhawala Page no.6
13. In the present matter, PW 4 was cross examined by the Ld. counsel for accused and in his cross examination, he has specifically deposed that the IO did not join any public person as he thought that he did not require any public person to join the investigation. In these circumstances like the present one, the police official should have made an effort to join public witnesses during the recovery proceedings and if public persons would have refused to assist the members of the police party, they could have served the said public witnesses with a notice in writing to join the police proceedings. This thing has not been happened in the present case.
14. In case law reported as "Anoop Joshi Vs. State"
1992(2) C.C. Cases 314 (HC), High court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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 Contd..../-FIR No. 158/00
P.S Kanjhawala Page no.7 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".
15. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. 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 Contd..../-FIR No. 158/00
P.S Kanjhawala Page no.8 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 the 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 worth of credence. All these facts taken together make the prosecution case highly doubtful".
Hence, in view of the law discussed above, it casts a shadow of doubt in the prosecution case.
16. In the present case, no efforts were made to hand over the seal after use to independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out. In such cases, in view of Saifulla Vs. State reported in 1998 (1) CCC 497 (Delhi) and Abdul Gaffar Vs. State reported in 1996 JCC 497 Contd..../-
FIR No. 158/00P.S Kanjhawala Page no.9 (Delhi) benefit of doubt is to be given to the accused.
17. Further, as per the deposition of PW 4 and PW 6 on 05.08.00, they were on patrolling duty at Village Rani Khera meaning thereby that at the time they were not in the police station. Be that as it may, now if the said police officials were not present within the P.S. at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival to & from the P.S. Kanjhawala in the D.D. Register of the said P.S. As per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"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 personality by signature or seal.
Note:- The term police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
18. Now, in the present case clearly the above said provision appears to have not been complied with in respect Contd..../-
FIR No. 158/00P.S Kanjhawala Page no.10 of the departure and arrival of PW4 and PW6 from and to the police station of Kanjhawala. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of PW4 & PW6 at or near the place of the recovery at on 05.08.00.
19. In the facts and circumstances of the case, the prosecution ought to have brought on record & prove the aforementioned DD entries by which the PW4 & PW6 had left the PS before the recovery and by which they had arrived at the P.S. after the recovery, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused persons, since the said police officials were under bounden duty to enter their departure & arrival from/at the police station by making a D.D. Entry in that respect as per the aforesaid mentioned P.P. Rule.
20. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to Contd..../-
FIR No. 158/00P.S Kanjhawala Page no.11 approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery.
21. Further, it has nowhere come in the evidence that the keys of the scooter was taken into the police possession. Further, PW 6 Head Constable Hari Chand had deposed that 5 pouches were separated and kept in a plastic dibba. It has nowhere come in the evidence as to where from the said dibba was arranged by the IO. Further, in the cross examination of PW 4, he has specifically told that he could not tell the number of the scooter nor its color. These facts also give some doubt in the prosecution story. In view of the lacunas discussed above, I hold that the prosecution story is doubtful.
22. In view of the above said discussion, I am of the considered view that the prosecution has failed to prove the Contd..../-
FIR No. 158/00P.S Kanjhawala Page no.12 guilt of the accused persons beyond reasonable doubt. Accordingly, both the accused persons stands acquitted from the charges U/s. 78,61 of Punjab Excise Act.
23. Their bail bonds are cancelled and sureties discharged. Endorsement if any, be cancelled and documents if any, be returned, against acknowledgment.
File be consigned to Record room after necessary compliance DEEPAK WASON METROPOLITAN MAGISTRATE ROHINI DELHI ANNOUNCED IN THE OPEN COURT TODAY i.e on 19th February, 2010.
Contd..../-