Delhi District Court
13. It Has Been Held In Case Of "Sadhu ... vs State Of Punjab" 1997(3) Crime on 9 October, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Jagdish @ Jagga
FIR No. 1088/04
PS Paschim Vihar
U/s 61 Punjab Excise Act
JUDGMENT
C C No. : 925/3/10
Date of Institution : 23.05.2005
Date of Commission of Offence : 30.12.2004
Name of the complainant : HCt. Murlidhar No. 564/W
PS Paschim Vihar
Name & address of the accused : Jagdish @ Jagga
S/o Harphool Singh
R/o D-478, Relief Camp,
Peera Garhi, Delhi
Offence complained of : U/s 61 Punjab Excise Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 18.09.2014
Date of announcing of judgment : 09.10.2014
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. Jagdish @ Jagga U/s 61 Punjab Excise Act
FIR No. 1008/04 PS Paschim Vihar 1/10
2. The briefly stated story of the prosecution is that on 30.12.2004 at about 8.10 pm at main Rohtak Road, opposite Super Bazar, Peera Garhi, Delhi within the jurisdiction of PS Paschim Vihar, the accused Jagdish @ Jagga was found in possession of one scooter bearing no. DL4SX 5877 containing 45 quarter bottles in front diggie and 101 quarter bottles were recovered under the petrol tank and all were of Haryana no.1 Desi Sharab 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 him by the Ld. Predecessor vide order dated 09.12.2005 to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined five witnesses i.e (1) HC Murlidhar (2) HC Raja Ram (3) ASI Suresh Kumar (4) ASI Madan Singh (5) ASI Amarpal Singh.
5. PW-1 HC Murli Dhar deposed that on 30.12.2004 he was posted at Anti Snatching Cell, West District. On that day secret informer informed SI Dilip Kaushik that one person namely Jagdish @ Jagga having illicit liquor on scooter bearing registration no. DL-4SX-5877 would come from Nangloi side and would go towards Punjabi Bagh, if raided he can be apprehended. SI Dilip State v. Jagdish @ Jagga U/s 61 Punjab Excise Act FIR No. 1008/04 PS Paschim Vihar 2/10 Kaushik recorded the DD No.6 on the basis of said information. Thereafter, SI Dilip Kaushik gave the secret information to Inspector Nafe Singh. Inspector Nafe Singh organized the raiding team including the witness, Ct. Naresh, Ct. Rajkumar, Ct. Harish, SI Dilip Kaushik and the secret informer. At about 07:20 PM, they all went to the spot in Govt. vehicle i.e. TATA-407 bearing registration no. DL-1LD-9030 with driver HC Rajbir. At about 07:50 PM, they reached at the spot and parked the vehicle TATA-407 and asked 4/5 passersby to join the raiding team but none agreed and left the spot without disclosing their names and addresses. Thereafter, they put the barricades on the road and took the positions. At about 08:10 PM, one person riding scooter no. DL-4SX-5877 came and on pointing out by secret informer he was apprehended. On checking the scooter, 45 quarter bottles of illicit liquor were found in the front side diggi and 101 quarter bottles of illicit liquor of Haryana No.1 Desi Sharab were found under the petrol tank. Thereafter he put the 45 quarter bottles in a plastic bag and gave it serial no.1 - 101 quarter bottles were put in the jute katta and given serial no.2. 10 quarter bottles were taken out from each bag and sealed the sample quarter bottles and 2 bags with the seal of MD separately. Seal was handed over to Ct. Harish after use. Form M-29 was filled up by the witness. Thereafter, IO took the possession of case property i.e illicit liquor and scooter vide seizure memos Ex.PW1/A and PW1/B. Thereafter IO prepared tehrir Ex.PW1/C and sent Ct. Harish to PS for registration of FIR. In the meantime, State v. Jagdish @ Jagga U/s 61 Punjab Excise Act FIR No. 1008/04 PS Paschim Vihar 3/10 2nd IO HC Amarpal reached at the spot and he handed over the case property, seizure memo and accused to him. After registration of FIR, Ct. Harish returned back at the spot and handed over the original rukka and carbon copy of FIR to HC Amarpal. 2nd IO prepared the site plan at his instance which is Ex.PW1/D. 2nd IO recorded his statement U/s 161 Cr.P.C. Thereafter he left the spot. Witness identified the accused and the case property in the court. It was observed by the court that some of the quarter bottles are empty and case property was produced in the court without seal.
6. PW-2 HC Raja Ram deposed that on 30.12.2004 he was posted at PS Paschim Vihar as MHC(M). On that day, HC Murlidhar deposited sealed liquor along with scooter bearing no. DL4SX 5877 and personal search of accused Jagdish. He made relevant entry regarding the same at serial no. 6349 in register no. 19. The photocopy of the same is Ex.PW2/A. The above mentioned scooter was released on superdari to Gurmeet s/o Kartar. The relevant entry regarding the same at portion B on Ex. PW2/A. On 08.02.2005 sealed sample liquor was sent to excise laboratory through Ct. Suresh vide RC No.229/21. The result of excise lab was received on 06.05.2005 and the same was handed over to the IO. The excise result is Ex. PW2/B.
7. PW-3 ASI Suresh Kumar deposed that on 08.02.2005 he was posted at PP Mianwali PS Paschim Vihar. On that day, MHC(M) had handed over him to the sample of the liquor with the seal of MD along with form M-29 and he deposited State v. Jagdish @ Jagga U/s 61 Punjab Excise Act FIR No. 1008/04 PS Paschim Vihar 4/10 the same in the excise lab, ITO vide RC No. 229/21/05. The samples were not tampered as long as it remained with him.
8. PW-3 ASI Madan Singh deposed that on 30.12.2004 he was posted as duty officer at PS Paschim Vihar. His duty hours were from 5.00 pm to 1.00 am. At about 10.10 pm, he received a rukka through Ct. Harish sent by HC Murlidhar. On the basis of rukka, he registered FIR No. 1088/04. He proved the FIR as Ex. PW3/A and endorsement on rukka as Ex. PW3/B. After registration of FIR, he handed over the carbon copy of FIR and original rukka to Ct. Harish for handing over the same to HC Amarpal.
9. PW-4 ASI Amarpal Singh deposed that on 30.12.2004 he was posted at PS Paschim Vihar as HC. On that day on receiving DD No.7, the investigation in the present case was marked to him. He went to the spot i.e opposite Super Bazar, Peera Garhi, Paschim Vihar, Delhi. There, he met HC Murlidhar, Ct. Naresh, Ct. Raj Kumar. First IO HC Murlidhar handed over the case property, seizure memo and the accused Jagdish @ Jagga. He prepared the site plan Ex. PW1/D at the instance of HC Murlidhar. He arrested the accused vide memo Ex.PW4/A and conducted his personal search vide memo Ex. PW4/B. Thereafter, the accused was taken to medical check up. The accused was released on bail. The case property was deposited at Malkhana PS Paschim Vihar and he recorded the statement of witnesses under Section 161 Cr.P.C.
State v. Jagdish @ Jagga U/s 61 Punjab Excise Act
FIR No. 1008/04 PS Paschim Vihar 5/10
10. Thereafter, the PE was closed. Statement of accused was recorded u/s 281 Cr.P.C, wherein he denied all the allegations and pleaded innocence. No DE was led despite opportunity.
11. I have heard the submissions addressed by the Ld APP for state and the accused himself and carefully perused the documents on record.
12. 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.
13. 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."
14. 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, State v. Jagdish @ Jagga U/s 61 Punjab Excise Act FIR No. 1008/04 PS Paschim Vihar 6/10 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.
15.Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained
16. 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 creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
State v. Jagdish @ Jagga U/s 61 Punjab Excise Act
FIR No. 1008/04 PS Paschim Vihar 7/10
17. 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.
18. 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 against them under the relevant provisions of law. The failure State v. Jagdish @ Jagga U/s 61 Punjab Excise Act FIR No. 1008/04 PS Paschim Vihar 8/10 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''.
19. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of MD and was handed over to Ct. Harish. 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.
20. Also, the case property was produced in an unsealed condition. Some of the quarter bottles were found empty. This further puts question mark on the prosecution story and raises doubts of tampering with case property.
21. Hence, in view of the above discussion, court is of the view that the 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 Jagdish @ Jagga is acquitted for the charges punishable U/s 61 Punjab Excise Act levelled against him.
State v. Jagdish @ Jagga U/s 61 Punjab Excise Act
FIR No. 1008/04 PS Paschim Vihar 9/10
22. As per section 437A Cr.P.C accused is admitted to bail on his furnishing personal bond in the sum of Rs.10,000/- with one surety of like amount.
ANNOUNCED ON 09.10.2014
(SAUMYA CHAUHAN)
MM-07(West)/ Tis Hazari Court /09.10.2014
State v. Jagdish @ Jagga U/s 61 Punjab Excise Act
FIR No. 1008/04 PS Paschim Vihar 10/10