Delhi District Court
State vs Samita on 14 November, 2011
IN THE COURT OF MS. SHUCHI LALER
METROPOLITAN MAGISTRATE - 04 : EAST:
KARKARDOOMA COURT : DELHI.
FIR No. 494/04
U/s 61/1/14 Punjab
Excise Act
PS Vivek Vihar
STATE Vs SAMITA
JUDGMENT:
A Sr No. of the case 02402R0 51906 2005 B Date of institution 03/10/2005 C Date of commission of 03/12/2004 offence D Name of the complainant Ct. Rajesh Kumar
E Name of the accused & Samita, w/o Sh. Darshan Singh, r/o his parentage and 4/31A, New Vishwas Nagar, Shahdara, address Delhi.
F Offence complained of U/s 61 Punjab Excise Act G Plea of the accused Pleaded not guilty H Order Reserved on 14/11/11 I Final order Acquitted J Date of such order 14/11/11 BRIEF FACTS AND REASONS FOR DECISION
1) The prosecution case, in brief, is that on 03.12.2004 at about 09.30 pm at Sulabh Shauchalya, Kasturba Nagar, Shahdara, Delhi, the accused Samita was found in possession of 6.750 litres of country made liquor, without any valid permit or license. After investigation, challan was filed by the police.
2) Complete set of copies was supplied to the accused and after hearing arguments, vide order dated 27.11.07 charge was framed FIR No. 494/04, PS: Vivek Vihar State Vs. Samita Page No... 1/9 against the accused for trial of offence U/S 61 Punjab Excise Act by the Ld. Predecessor to which the accused pleaded not guilty and claimed trial.
3) Prosecution in support of present case examined the following five witnesses.
(i) Ct. Rajesh appeared as PW-1 who deposed that on 03.12.2004, he was on patrolling duty along with Ct. Mahesh Chand and at about 09:25 pm, when they reached Near Sulabh Shauchalya, Kasturba Nagar, they saw a lady, having a plastic can in her right hand, was coming from the side of Ambedkar Park and on seeing them, she moved back and started to move fast. On suspicion, she was chased and apprehended. Can was checked and smell of liquor was coming from the can. On enquiry, she disclosed her name as Samita. PW-1 informed the PS and after some time, IO HC Shailender along with L/Ct. Vinita came at the spot and the accused along with the recovered can was handed over to IO HC Shailender. IO recorded the statement of PW-1 which is Ex.PW-1/A. IO asked 3-4 public persons to join the investigation, but none agreed. IO procured one bucket, mug, empty bottle and empty quarter bottle through Ct. Mahesh and measured the liquor which came to be 6.750 litres. IO took out one quarter bottle liquor as sample and can and sample were sealed with the seal of SS and form M-29 was filled by him and after use, the seal was handed over to PW-1. The Case FIR No. 494/04, PS: Vivek Vihar State Vs. Samita Page No... 2/9 property was seized vide Memo Ex. PW-1/B. IO prepared the tehrir and handed over the same to PW-1 for the registration of the case and after registration of the case, he came back at the spot and handed over the copy of FIR and original rukka to the IO. The accused was arrested vide Memo Ex.PW-1/C and the personal search of the accused was conducted through L/Ct. Vinita vide memo Ex.PW-1/D. PW-1 correctly identified the case property i.e. the Can Ex.P1. PW-1 denied the suggestion that the accused was falsely implicated in the present case and liquor was planted upon her and all the proceedings were done while sitting at PS and the accused was lifted from her house and he was deposing falsely.
(ii) HC Mahesh appeared as PW-2 who deposed that on 03.12.2004, he was on patrolling duty along with Ct. Rajesh and at about 09:25 pm, when they reached Near Sulabh Shauchalya, Kasturba Nagar, they saw a lady, having a plastic can in her right hand, was coming from the side of Ambedkar Park and on seeing them, she moved back and started to move fast. On suspicion, she was chased and apprehended. Can was checked and smell of liquor was coming from the can. On enquiry, she disclosed her name as Samita. Ct. Rajesh informed the PS and after some time, IO HC Shailender along with L/Ct. Vinita came at the spot and the accused along with the recovered can were handed over to IO HC Shailender. IO recorded the statement of Ct. Rajesh which is Ex.PW-1/A. IO FIR No. 494/04, PS: Vivek Vihar State Vs. Samita Page No... 3/9 asked 3-4 public persons to join the investigation, but none agreed. IO procured one bucket, mug, empty bottle and empty quarter bottle through PW-2 and measured the liquor which came to be 6.750 litres. IO took out one quarter bottle liquor as sample and can and sample were sealed with the seal of SS and form M-29 was filled by him and after use, the seal was handed over to Ct. Rajesh. The Case property was seized vide Memo Ex. PW-1/B. IO prepared the tehrir and handed over the same to Ct. Rajesh for the registration of the case and after registration of the case, he came back at the spot and handed over the copy of FIR and original rukka to the IO. IO prepared the site plan. The accused was arrested vide Memo Ex.PW-1/C and the personal search of the accused was conducted through L/Ct. Vinita vide memo Ex.PW-1/D. PW-2 correctly identified the case property i.e. the Can Ex.P1. PW-2 denied the suggestion that the accused was falsely implicated in the present case and liquor was planted upon her and all the proceedings were done while sitting at PS and the accused was lifted from her house and he was deposing falsely.
(iii) L/Ct. Vinita appeared as PW-1 who deposed that on 03.12.2004, on receiving DD No. 50B, when she along with HC Satender reached Near Sulabh Shauchalya, Kasturba Nagar, Ct. Mahesh and Ct. Rajesh met them and the accused along with the recovered can was handed over to the IO. On enquiry, the accused FIR No. 494/04, PS: Vivek Vihar State Vs. Samita Page No... 4/9 disclosed her name as Samita. IO checked the can and smell of liquor was coming from the can. IO recorded the statement of Ct. Rajesh which is Ex.PW-1/A. IO measured the liquor which came to be 9 bottles. IO took out one quarter bottle liquor as sample and can and sample were sealed with the seal of SS and form M-29 was filled by him and after use, the seal was handed over to Ct. Rajesh. The Case property was seized vide Memo Ex. PW-1/B. IO prepared the tehrir and handed over the same to Ct. Rajesh for the registration of the case and after registration of the case, he came back at the spot and handed over the copy of FIR and original rukka to the IO. The accused was arrested vide Memo Ex.PW-1/C and the personal search of the accused was conducted through PW-3 vide memo Ex.PW-1/D. PW-3 correctly identified the case property i.e. the Can Ex.P1. PW-3 denied the suggestion that she never visited the spot nor conducted the personal search of the accused and she was deposing falsely.
(iv) ASI Shailender appeared as PW-4 who deposed that on 03.12.2004, on receiving DD No. 50B, when he along with L/Ct. Vinita reached at Near Sulabh Shauchalya, Kasturba Nagar, Ct. Mahesh and Ct. Rajesh met them and the accused along with the recovered can was handed over to PW-4. Thereafter, PW-4 checked the can and smell of liquor was coming from the can. PW-4 procured one plastic bucket, mug and quarter bottle and measured the liquor which FIR No. 494/04, PS: Vivek Vihar State Vs. Samita Page No... 5/9 came to be 9 bottles. PW-4 took out one quarter bottle liquor as sample and can and sample were sealed with the seal of SS and form M-29 was filled by him and after use, the seal was handed over to Ct. Rajesh. The Case property was seized vide Memo Ex. PW-1/B. Thereafter, PW-4 recorded the statement of Ct. Rajesh Ex.PW-1/A and prepared the rukka Ex.PW-4/A and handed over the same to Ct. Rajesh for the registration of the case and after registration of the case, he came back at the spot and handed over the copy of FIR and original rukka to PW-4. Thereafter, PW-4 prepared the site plan at the instance of Ct. Rajesh Ex.PW-4/B. The accused was arrested vide Memo Ex.PW-1/C and the personal search of the accused was conducted through L/Ct. Vinita vide memo Ex.PW-1/D. Accused was released on police bail vide memo Ex.PW-4/C. PW-4 correctly identified the accused. PW-4 denied the suggestion that nothing was recovered from the possession of the accused and the accused has been falsely implicated in the present case and he was deposing falsely.
(v) Ct. Anil appeared as PW-5 who deposed that on 23.12.2004, he took sample duly sealed from MHC(M) along with Form M-29 vide RC No.264/21 to Excise Lab, ITO and receipt of the same was handed over to MHC(M). IO recorded his statement in this regard.
4) Statement of accused was recorded wherein she pleaded innocence and false implication in this case, however, she did not wish to FIR No. 494/04, PS: Vivek Vihar State Vs. Samita Page No... 6/9 examine any witness in support of her defence.
5) I have heard the Ld. APP for State and Ld. Defence Counsel and have perused the record.
6) To prove the charge U/S 61 Punjab Excise Act, the prosecution has to prove that the accused was found in possession of plastic can containing 6.750 litres of country made liquor, without any valid permit or license. First of all, no public witness has been joined by the IO in the present case despite availability. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completion of formalities at the spot but none of the public witness has been joined in the investigation. The explanation given by the prosecution in this regard is that the public persons had refused to join the investigation. In Roop Chand Vs. State of Haryana, 1990(1) CLR 69, it has been observed that such explanations that the public persons refused to join the proceedings are unreliable and in Pardeep Narayan Vs. State of Maharashtra, AIR 1995 SC 1930, it has been held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused.
7) It is a settled proposition of law that Sub-section 4 to Sec. 100 of Cr.P.C. is a directory provision however, the explanation of non- joining of independent witness should also be plausible. The FIR No. 494/04, PS: Vivek Vihar State Vs. Samita Page No... 7/9 explanation put forth by the prosecution for non-joining of independent witness appears to be implausible for the reason that no notice whatsoever, was given to the persons refusing to join the investigation. The same creates doubt regarding the fairness of the investigation.
8) It is also noteworthy that most crucial part of the investigation has been conducted even prior to the registration of present FIR. PW-4 has deposed that he took out one quarter bottle liquor from the can as sample and the sample was sealed with the seal of SS and prepared the seizure memo Ex.PW-1/B. IO prepared the rukka which he handed over to PW-1 Ct. Rajesh for the registration of the case. The record reveals that FIR number finds mention on the seizure memo Ex.PW-1/B. Admittedly, the Seizure memo was prepared before registration of FIR. When documents are prepared before registration of FIR and it contain the FIR number, the inference has to be drawn either FIR was recorded prior in time or the documents were prepared later on and in such case, benefit of doubt has to be given to the accused.
9) Further, no efforts whatsoever have been made by the prosecution to collect any clue about the source from where illicit liquor was arranged for by the accused. At least, some efforts must have been made by the police to interrogate the accused and conduct the requisite investigation to know as to from where the accused FIR No. 494/04, PS: Vivek Vihar State Vs. Samita Page No... 8/9 arranged the illicit liquor.
10)It is also worth mentioning that as per the case of the prosecution PW-1 & PW-2 were on patrolling duty at the time of incident. However, no DD entry in support of this fact has been placed on record. This further raises doubts about the prosecution story.
11)In view of the foregoing reasons, I am of the opinion that the prosecution has failed to prove its case against the accused, beyond reasonable doubt. Accordingly, I acquit the accused Samita for the offence punishable U/S 61 Punjab Excise Act in FIR No. 494/04 PS Vivek Vihar. Case property be confiscated to the State, as per rules. Bail Bond of accused shall remain in force and surety of the accused shall not be discharged for a period of six months in view of section 437A Cr.P.C.
File be consigned to Record Room.
Announced in the open court (SHUCHI LALER) today itself. MM/EAST/KKD/14.11.2011. FIR No. 494/04, PS: Vivek Vihar State Vs. Samita Page No... 9/9