Delhi District Court
Fir No.175/05, Ps Timarpur, State vs Mintoo, S/O. Sh. Chiranji Lal on 3 February, 2016
1
IN THE COURT OF SH.R.K. PANDEY, METROPOLITAN MAGISTRATE : 02
(CENTRAL) TIS HAZARI COURTS, NEW DELHI
FIR No. 175/05
PS: Timar Pur
U/s 61/1/14 Excise Act
State v. Mintoo, S/o. Sh. Chiranji Lal
JUDGMENT
1. Sl No. of the case : 02401R0648942005
2. Date of Commission of the offence : 21.04.2005
3. The name of the informant : Ct. Ram Naresh
4. The name and address of accused : Mintoo S/o. Chiranji Lal
R/o House no. 167, D
Block, Gali no.5,Surender
colony, Part 1,Village
Jharoda, Delhi
5. Date of institution of FIR : 21.04.2005
6. Date of framing of charge : 04.06.2012
7. Date of receipt of this case in
this court : 15.07.2005
8. The plea of the accused : Pleaded not guilty.
9. Date of reserving the case for order : 03.02.2016.
10. Date of Decision : 03.02.2016.
11. Final order : Acquitted
BRIEF FACTS OF THE CASE :
1. In nutshell the prosecution case against the accused Mintoo, S/o. Sh. Chiranji Lal is that on 21.04.2005 at about 8:10 pm at main Jharoda road, near FIR No.175/05, PS Timarpur, State v/s Mintoo, S/o. Sh. Chiranji Lal 2 Hardev Nagar, Delhi within jurisdiction of PS Timar Pur he was found in possession of one plastic cane containing country made liquor equivalent to 21 bottles of 750 ml without any license or permit. Accused was allegedly apprehended by the police.
2. On completion of investigation charge sheet was filed against the accused.
Vide order dated 04.06.2012 accused was charged for the offence u/s 61 Excise Act to which he pleaded not guilty and claimed trial.
3. In support of its case prosecution examined six witnesses.
4. PW1 Ct. Liyakat Ali deposed that on 21.04.2005, he was posted as Ct. at PS. Timar Pur and on that day he alongwith HC Rawat Singh received a call from Ct. Ram Naresh regarding apprehension of a person with illicit liquor at main jharoda road near Hardev Nagar. PW1 further deposed that he along with IO reached the spot where Ct. Ram Naresh had handed over the custody of the accused and illicit liquor to the IO. PW1 further deposed that Ct. Naresh brought one plastic bucket and one empty bottle of 750 ml and the liquor of aforesaid cane was measured through the aforesaid empty bottle and it was found to be 21 bottles of liquor. PW1 further deposed that IO kept one bottle of liquor in the aforesaid bottle for sample purpose and rest of the liquor was poured into the aforesaid cane. PW1 further deposed that IO sealed the aforesaid cane and bottle with seal of RSY and M29 form was filled. PW1 further deposed that seal after use was handed over to Ct. Ram Naresh and the case property was seized and seizure memo EXPW 1/A was prepared. PW1 further deposed that IO prepared the rukka EXPW6/B and handed over to deponent for registration of FIR and deponent went to PS and after some time, returned back to the spot with copy of FIR and original rukka and handed over the same to the IO. PW1 further deposed that accused was arrested and IO prepared arrest memo and personal search memo of FIR No.175/05, PS Timarpur, State v/s Mintoo, S/o. Sh. Chiranji Lal 3 accused EXPW1/B and EXPW1/C. PW1 further deposed that IO prepared the site plan in his presence. PW1 further deposed that IO requested 45 public persons to join the investigation but they refused with their own reason.
5. Witness PW2 ASI Vedpal deposed that on 21.04.2005, he was posted as ASI at PS Timar Pur and on that day, he was working as duty officer and at about 10:45 Ct. Liyakat Ali had handed over him a rukka which was sent by IO HC Rawat and on the basis of that rukka , deponent registered FIR EXPW2/A and deponent also made endorsement on rukka EXPW2/B and after registration of FIR, he handed over copy of FIR and original rukka to Ct. Liyakat Ali for further handing over to the IO for necessary action.
6. Witness PW 3 ASI YASH Pal deposed that on 21.04.2005, he was posted at PS. Timar Pur and was working as MHCM and on that day, IO/HC Rawat Singh deposited one plastic bag sealed with the seal of RSY alongwith one sample bottle of 750 ml capacity with the seal of RSY and Form M29 and he made entries in register no. 19 at entry no. 3516. PW3 further deposed that on 04.05.05 the sample bottle alongwith Form M29 were handed over to Ct. Ramesh vide RC No. 87/21 for depositing the same at Excise Lab and on 07.06.2005 the sample result was brought by Ct. Shamsher Singh which was handed over to the IO.
7. Witness PW.4 HC Ramesh Kumar deposed that on 04.05.2005, he was posted as Ct. at PS. Timar Pur and on that day, on the direction of IO HC Rawat Singh, he collected sample of this case from MHCM which was in sealed condition and deponent went to excise lab, ITO where he deposited the samples and collected the receiving copy. PW 4 further deposed that thereafter, he returned back to PS where he handed over receiving copy to MHCM.
8. Witness PW. 5 HC Ram Naresh deposed that on 21.04.2005, he was posted FIR No.175/05, PS Timarpur, State v/s Mintoo, S/o. Sh. Chiranji Lal 4 as Ct. at PP Jharoda, PS. Timar Pur and on that day, he was on patrolling duty on main Jharoda Road near Hardev Nagar and at about 8.10 pm, when he reached near Hardev Nagar while patrolling, he saw Mintu who was coming from the side of Burari Chowk along with a filled plastic Katta which accused was carrying on his head. PW5 further deposed that upon seeing deponent, he tried to take Uturn for fleeing and upon suspicion, deponent managed to apprehend him and deponent asked about the filled katta from Mintu but he could not gave any satisfactory explanation. PW5 further deposed that thereafter, he checked the aforesaid katta and one 20 liter white colored filled cane was found inside the aforesaid katta and deponent opened the lid of aforesaid cane and he found a smell of liquor. PW5 further deposed that thereafter, he gave information to chawki and HC Rawat Singh/IO along with Ct. Liyakat Ali reached on the spot. PW5 further deposed that he narrated whole facts to the IO and also handed over accused and case property to the IO and IO recorded his statement EXPW5/A and IO brought one plastic bucket and one empty bottle of 750 ml and the liquor from aforesaid cane was measured through the aforesaid empty bottle and it was found to be 21 bottles of liquor. PW5 further deposed that IO kept one bottle of liquor in the aforesaid bottle for sample purpose and rest of the liquor was poured into the aforesaid cane. PW5 further deposed that IO sealed the aforesaid cane and bottle with seal of RSY and M29 form was filled by the IO and IO prepared seizure memo of case property EXPW1/A . PW5 further deposed that thereafter, IO prepared the rukka and handed over the same to Ct. Liyakat for registration of FIR and he went to PS and after some time, he returned back to the spot with copy of FIR and original rukka and handed over the same to IO. PW5 further deposed that IO prepared site plan of the spot in his presence. PW5 further deposed that thereafter, IO prepared arrest memo and personal search memo of FIR No.175/05, PS Timarpur, State v/s Mintoo, S/o. Sh. Chiranji Lal 5 accused EXPW1/B and EXPW1/C.
9. Witness PW 6 ASI Rawat Singh deposed that on 21.04.2005, he was posted as HC at PP Jharoda PS. Timar Pur and on that day, he received DD no. 23 EXPW6/A regarding apprehension of a person with illicit liquor at main jharoda road near Hardev Nagar. PW6 further deposed that thereafter, he along with Ct. Liyakat Ali reached at the spot where Ct. Ram Naresh met them and handed over them a person namely Mintoo and Ct. Ram Naresh handed over him white colored plastic katta and that plastic katta was containing a filled cane.PW6 further deposed that thereafter, he recorded the statement of Ct. Ram Naresh EXPW5/A. PW6 further deposed that he brought one plastic bucket and one empty bottle of 750 ml and the liquor from aforesaid cane was measured through the aforesaid empty bottle and it was found 21 bottles of liquor and deponent kept one bottle of liquor in the aforesaid bottle for sample purpose and rest of the liquor was poured into the aforesaid cane. PW6 further deposed that he sealed the aforesaid cane and bottle with seal of RSY and M29 form was filled by him and I prepared seizure memo of case property EXPW1/A and deponent prepared the rukka EXPW6/B and handed over to Ct. Liyakat for registration of FIR. PW6 further deposed that Ct. Liyakat went to PS and after some time, he returned back to the spot with copy of FIR and original rukka and handed over the same to him. PW6 further deposed that thereafter, he prepared site plan of the spot EXPW6/C .PW6 further deposed that thereafter, he prepared arrest memo and personal search memo of accused EXPW1/B and EXPW1/C. PW6 further deposed that he recorded statement of witnesses and after necessary investigation of this case, deponent prepared the challan.
10. After recording the prosecution evidence, statement of accused was recorded u/s 313 read with Sec. 281 Cr.P.C. in which he stated that he has FIR No.175/05, PS Timarpur, State v/s Mintoo, S/o. Sh. Chiranji Lal 6 been falsely implicated in this case and nothing incriminating had been recovered from his possession and the liquor has been planted upon him. He chose not to lead any defence evidence.
11. Final arguments submitted.
12. It is argued on behalf of the state by Ld. APP for the state that prosecution has proved its case beyond reasonable doubts, hence accused is liable to be convicted.
13. It is argued on behalf of the accused that accused is falsely implicated in present case and case property was planted one and all the witnesses are police official and they falsely implicated him. Hence the accused is liable to be acquitted.
14. Heard. Perused the record.
15. As per the case of prosecution on 21.04.2005 at about 8:10 pm at main Jharoda road, near Hardev Nagar, Delhi within jurisdiction of PS Timar Pur accused was found in possession of one plastic cane containing country made liquor equivalent to 21 bottles of 750 ml without any license or permit.
16. Witnesses PW1, PW5 and PW6 who are eye witnesses of the prosecution deposed on the same line of prosecution story and witnesses identified the accused correctly and also identified the case property as recovered from the possession of accused. Admittedly, police had not joined any public person during investigation.
Law on this point is settled by Hon'ble High Court of Delhi in case titled as Anoop Joshi Vs. State 1999 (2) CC cases 314 in which it was held that absence of any independent public FIR No.175/05, PS Timarpur, State v/s Mintoo, S/o. Sh. Chiranji Lal 7 witness joins or produce on behalf of prosecution creates doubt over version of prosecution. The failure on the part of prosecution create reasonable doubt in prosecution story.
In case titled as Roop Chand Vs. State of Haryana 1999 (1) CLR 69 It was observed by Hon'ble High Court of Punjab & Haryana that " 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 appellant. In case any of shopkeepers had decline to join the raiding party, the police could have later on taken legal action against shopkeepers because they could not have escaped from rigours of law while decline to perform their legal duty to assist the police in the investigation as citizen, which is an offence under IPC.
FIR No.175/05, PS Timarpur, State v/s Mintoo, S/o. Sh. Chiranji Lal 8 In case titled as Nanak Chand Vs. State of Delhi DHC 1992 CRLJ 55,it was observed by Hon'ble High Court of Delhi that "failure to join witnesses from public specially when they are available at their elbow,may, as in the present case cast doubt".
17. The prosecution story regarding recovery of case property from the possession of the accused become doubtful as no public witness was joined by the police during investigation and it is settled principle of law that benefit of doubt be given to the accused. Accordingly, prosecution has failed to prove the case that on 21.04.2005 at about 8:10 pm at main Jharoda road, near Hardev Nagar, Delhi within jurisdiction of PS Timar Pur accused was found in possession of one plastic cane containing country made liquor equivalent to 21 bottles of 750 ml without any license or permit. In view of the above discussion, I hold that the accused Mintoo, S/o. Sh. Chiranji Lal is not found guilty of the charge framed against him and he is acquitted of the charge under section 61/1/14 Excise Act framed against him. Bail bond and surety bond furnished u/s 437A Cr.P.C shall remain in force for six months. After compliance file be sent to record room. Case property be confiscated to State as per rules and same be destroyed.
Announced in the open court (RAVINDRA KUMAR PANDEY)
on 03.02.2016 MM02 (Central)Tis Hazari Court
Delhi.
FIR No.175/05, PS Timarpur, State v/s Mintoo, S/o. Sh. Chiranji Lal