Delhi District Court
State vs . Ram Mehar @ Pappu on 29 October, 2015
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI.
FIR No.306/2011
PS - Nangloi
State Vs. Ram Mehar @ Pappu
Unique Case ID No.02401R0180022012
J U D G M E N T
(a) Sr. No. of the case 8/2/12
(b) Date of offences 20.10.2011
(c) Complainant Ct. Manjeet, No.1649W, PS Nangloi, New Delhi.
(d) Accused person(s) Ram Mehar @ Pappu S/o Sh. Kishan Dass R/o Village
Ram Rai, PS and District Jind, Haryana.
(e) Offence(s) Under Section 33 of Delhi Excise Act, 2009.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 29.02.2012
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 29.10.2015
The brief facts of the case are that :
1. The accused has been charge sheeted for committing offence punishable under Section 33 of Delhi Excise Act, 2009. The allegations against the accused are that on 20.10.2011 at about 09:00 am at Near Swarn Park, Bus Stand, Main Rohtak FIR No.306/2011 Page No.1 of 12 Road, Nangloi, accused Ram Mehar @ Pappu alongwith coaccused Jai Bhagwan (since deceased) were found in possession of 14 petties of illicit liquor containing 48 quarter bottles each as per seizure memo Mark 'X' on rickshaw rehri which is in contravention of notification issued by Delhi Administration. According to prosecution, accused thereby committed offence punishable under Section 33 of Delhi Excise Act, 2009.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed against the accused for offence punishable under Section 33 of Delhi Excise Act, 2009 vide order dated 21.10.2013 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE Main Witnesses(s)
3. Prosecution examined four witnesses to prove its case. PW1 Ct. Manjeet has deposed that on 22.10.2011, he was on patrolling duty in area of PS Nangloi, Swarn Park and at about 09:00 am when he reached near Swarn Park bus Stand, Main Rohtak Road, he saw one rickshaw rehri coming from Bahadurgarh side having gatta petties being driven by the accused Jai Bhagwan (since deceased) and accused Ram Mehar was pushing the same. On suspicion, he stopped the rehri and inquired FIR No.306/2011 Page No.2 of 12 from them about gatta petties, but, they could not give any satisfactory answer, therefore, he checked gatta petties and found quarter bottles of illicit liquor in the same. He informed about the same at PS on which IO HC Himmat Singh alongwith Ct. Sandeep reached at the spot to whom he handed over the accused persons along with recovered liquor. IO recorded his statement Ex.PW1/A. Thereafter, IO requested 4 - 5 public persons to join the investigation, but, none of them agreed and left the spot without disclosing their names and addresses citing their own genuine problems. IO checked gatta petties and found 48 quarter bottles in each gatta petty. 12 gatta petties were containing quarter bottles of "Rasila Santra Masaledar Desi Sharab" and 02 petties were containing "Party Special Deluxe Whiskey" for sale in Haryana only. Petties were assigned serial number from 01 to 14. One quarter bottle from each petty were taken out as sample and they were also assigned serial number from 1A to 14A. Sample as well as petties were sealed with the help of cloth and were duly sealed with the seal of 'HS'. Seal after use was handed over to Ct. Sandeep. IO prepared excise Form M29 at spot. IO seized case property i.e. illicit liquor vide memo Ex.PW1/B and rickshaw rehri vide memo Ex.PW1/C. IO prepared Rukka on the basis of his statement and handed over same to him. He took Rukka to PS for registration of FIR, came back at the spot alongwith copy of FIR and original Rukka and handed over same to IO. IO arrested accused Jai Bhagwan (since deceased) vide memo Ex.PW1/D, FIR No.306/2011 Page No.3 of 12 conducted his personal search vide memo Ex.PW1/E, arrested accused Ram Mehar @ Pappu vide memo Ex.PW1/F, conducted his personal search vide memo Ex.PW1/G and prepared site plan at his instance. Thereafter, accused persons were got medically examined at SGM Hospital, case property was deposited in malkhana and accused persons were lodged in lock up. He correctly identified accused Ram Mehar @ Pappu, case property illicit liquor Ex.P1 (Collectively) and rickshaw rehri Ex.P2 in the Court. PW1 was examined, crossexamined and was discharged.
4. PW4 HC Himmat Singh has deposed that on 22.10.2011 at about 09:00 am, he was assigned a call regarding recovery of illicit liquor and rehri on which he alongwith Ct. Sandeep went to the spot at about 09:30 am where he met with Ct. Manjeet who handed over to him two accused persons namely Ram Mehar and Jai Bhagwan (since deceased) alongwith one rickshaw rehri have illicit liquor. He recorded statement of Ct. Manjeet as Ex.PW1/A. He requested 4 - 5 passerby to join the investigation, but, none of them agreed and they all left the spot without disclosing their names and addresses. He checked rickshaw rehri and found 14 petties of illicit liquor. 12 petties were containing 48 quarter bottles in each gatta petty of make "Rasila Santra Masaledar Desi Sharab" and remaining 02 petties were containing 48 quarter bottles in each gatta petty of make "Party Special Deluxe Whiskey" for sale in Haryana only. Petties were assigned serial number from 01 to 14. One quarter bottle from each FIR No.306/2011 Page No.4 of 12 petty were taken out as sample and they were also assigned serial number from 1A to 14A. Sample as well as petties were sealed with the help of cloth and were duly sealed with the seal of 'HS'. Seal after use was handed over to Ct. Sandeep. He seized case property illicit liquor vide memo Ex.PW1/B, rickshaw rehri Ex.PW1/C, prepared Rukka Ex.PW4/A and handed over the same to Ct. Manjeet for registration of FIR who took Rukka to PS for registration of FIR, came back at the spot alongwith copy of FIR and original Rukka and handed over same to him. He arrested accused Jai Bhagwan (since deceased) vide memo Ex.PW1/D, conducted his personal search vide memo Ex.PW1/E, arrested accused Ram Mehar @ Pappu vide memo Ex.PW1/F and conducted his personal search vide memo Ex.PW1/G. He also intimated about the seizure to Deputy Commissioner (Excise) and recorded the statements of witnesses. Thereafter, accused persons were medically examined at SGM Hospital, case property was deposited in malkhana and accused persons were lodged in lock up. He correctly identified accused Ram Mehar @ Pappu and case property illicit liquor Ex.P1 (Collectively). PW4 was examined, crossexamined and was discharged. Formal Witness(es)
5. PW2 HC Pradeep Kumar has proved and exhibited formal FIR Ex.PW2/A and endorsement on Rukka Ex.PW2/B. PW2 was examined, cross examined and was discharged.
FIR No.306/2011 Page No.5 of 12
6. PW3 HC Lal Singh has deposed that on 22.10.2011, IO HC Himmat Singh deposited case property illicit liquor and one rickshaw rehri vide entry number 5846 Ex.PW3/A in Register No.19. On 18.11.2011, he handed over the sample quarter bottles to Ct. Manjeet on instructions of IO vide RC No.174/21/11 to be deposited with excise lab. On 01.12.2011, report of excise lab was received which was handed over to IO. He has deposed that case property and samples were never tampered by him or anyoneelse till it remained in his custody. PW3 was examined, crossexamined and was discharged.
7. On 06.10.2015, further prosecution evidence was closed.
STATEMENT OF ACCUSED
8. After closure of prosecution evidence, statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating evidence was put to him. Accused person denied all the allegations and stated that he is innocent and has been falsely implicated in this case. Accused opted not to lead evidence in his defence.
9. Final arguments from both sides heard. Records perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
10. In matter of "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55, Hon'ble Punjab & Haryana High Court, it has been held that : FIR No.306/2011 Page No.6 of 12 "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."
11. As per chapter 22 rule 49 of the Punjab Police Rules (also applicable to Delhi Police) which is reproduced herein for ready reference : 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 personally by signature or seal.
Note : The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
12. In the present case, the above said provision has not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police officials have not been proved on record.
13. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State", 1987 (2) Crimes 29, Hon'ble High Court of Delhi, it has been held that : "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 creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
14. Public witnesses have admittedly not been joined in investigation though FIR No.306/2011 Page No.7 of 12 available as the spot of recovery is a busy place and recovery is stated to have been affected at about 09:00 am. PW4 has also not written down the names of persons who were present at the spot and were requested by him to join the investigation. No written notice was admittedly served upon them. The testimony of official witnesses, therefore, does not find any corroboration from any independent source. In view of this Court, the nonjoining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
In matter of "Anoop Joshi Vs. State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi held 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 the appellant. In case any of the shopkeepers had declined to join the raiding party, the 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''.
In matter of "Roop Chand Vs. The State of Haryana", 1999 (1) C.L.R 69, Hon'ble Punjab & Haryana High Court held 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 FIR No.306/2011 Page No.8 of 12 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 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 nonjoining 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''.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under : "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : FIR No.306/2011 Page No.9 of 12 "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under : "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent FIR No.306/2011 Page No.10 of 12 witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
15. The seal after use was not handed over to any independent person by investigating officer and the same also creates a doubt whether the case properties were genuinely recovered in this matter or not. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as 1996 JCC 497. In these circumstances, abovesaid facts also erode credibility of prosecution evidence.
16. Accordingly, in view of the aforesaid facts, it has to be concluded that the prosecution has failed to establish beyond reasonable doubt that the alleged recovery was infact made from accused.
17. Section 52 of Delhi Excise Act, 2009 provides that presumption is raised FIR No.306/2011 Page No.11 of 12 with respect to commission of offence until the contrary is proved that the accused has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
18. Hence, before the presumption is raised the prosecution has to establish that illicit liquor was recovered from the accused. However, in this case, prosecution has failed to prove beyond reasonable doubt that illicit liquor was recovered from the possession of accused. Accordingly, presumption of Section 52 of the act ibid cannot be invoked.
19. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has failed to prove its case against the accused beyond shadow of reasonable doubt. Accused Ram Mehar @ Pappu is accordingly acquitted for offence punishable under Section 33 of Delhi Excise Act, 2009. Case property be confiscated to the State (if not already confiscated) and be destroyed after expiry of period of appeal (if it is still not destroyed).
20. File be consigned to Record Room after due compliance.
Announced in the open Court on October 29, 2015.
(HARVINDER SINGH) M.M.03/THC (West), Delhi/29.10.2015 FIR No.306/2011 Page No.12 of 12