Delhi District Court
Police Station: Sarita Vihar State vs . Lalu Page No. 1 Of 7 on 20 August, 2015
IN THE COURT OF SHRI ARVIND BANSAL
METROPOLITAN MAGISTRATE (SOUTH-EAST) - 05
SAKET COURTS : NEW DELHI
JUDGMENT
FIR No.: 89/11 Police Station: Sarita Vihar I D No. 02403R0263002011 U/s 33 Delhi Excise Act State Versus Lalu s/o Sh. Ram Dular r/o H. No. 184/18, Surdas Colony, Tilpat, Faridabad, Haryana.
.... Accused
(a) Date of Institution: 05.10.2011
(b) Date of Offence: 06.05.2011
(c) Plea of accused: Pleaded not guilty and claimed trial
(d) Argument heard and
reserved for order: Not reserved
(e) Final Order: Acquitted
(f) Date of Judgment: 20.08.2015
Brief statement of reasons for decision of the case:
1. The case of prosecution against accused is that on 06.05.2011 at about 05:05 pm, near Hanuman Mandir, Aali mod / Aali Gaon Road, New Delhi, accused was found in possession of 100 quarter bottles of illicit liquor make Jagadari No. 1 Santra, for sale in Haryana only, Kept in a scooter bearing no.FIR No. 89/11
Police Station: Sarita Vihar State vs. Lalu Page No. 1 of 7 HR51 M 6744 mentioned in seizure memo Ex. PW1/A, by the police raiding party on secret information. The quantity of liquor recovered from the possession of accused was found in excess to the one specified under Rule 20 of Delhi Excise Rules. FIR was got registered. The case property was seized, saled and deposited in Malkhana, statements of witnesses were recorded and sample bottles were sent for chemical examination and finally, upon completion of necessary investigation, the charge sheet u/s 173(2) Cr.P.C was filed before the Court against the accused for trial.
2 Court took cognizance of the offence upon aforesaid charge sheet. Pursuant to his appearance, accused was supplied the copies of charge- sheet/documents in compliance of S. 207 Cr.P.C and matter was listed for consideration on charge. Upon hearing the arguments advanced at bar by Ld. counsels for the parties and on perusal of record, prima facie case against the accused for the offence punishable u/s 33 Delhi Excise Act was found to be made out. Charge was framed accordingly against the accused to which he pleaded not guilty and claimed trial. Thereafter, case was fixed for prosecution evidence.
3 In support of aforesaid case against the accused, prosecution produced and examined three witnesses before the Court.
PW1 Ct. Mukesh Dalal testified that on 06.05.2011, he along-with HC Kailash Chander was on patrolling duty in the area of beat no. 10, Aali Vihar Near Aali Gaon. At about 04:50 pm, they reached near Hanuman Mandir and met one secret informer who shared the information that one person would FIR No. 89/11 Police Station: Sarita Vihar State vs. Lalu Page No. 2 of 7 come on a scooter from the side of Faridabad and was having possession of illicit liquor, and if raided, could be apprehended. IO requested some public persons to join the proceedings but none of them agreed and left the spot without disclosing their names and addresses. IO prepared raiding party consisting himself, secret informer and the witness. IO put barricades on the road. At about 05:05 pm, one person coming on a scooter was pointed out by secret informer. IO signaled him to stop. IO checked the plastic katta put on scooter and found containing 50 quarter bottles of illicit liquor. 25 quarter bottles were also found lying in diggi of scooter. 25 quarter bottles were also found lying in back side diggi. IO took out two quarter bottles as sample and sealed with the seal of 'KC'. IO seized the remaining case property vide seizure memo Ex. PW1/A. IO also seized the scooter bearing no. HR51 M 6744 vide memo Ex. PW1/B. IO prepared form M-29. In the meanwhile, Ct. Hari Singh came at the spot who shared the same information. IO prepared Rukka and handed him over for registration of FIR. IO prepared site plan. IO arrested and personally searched the accused vide memos Ex. PW1/C & Ex. PW1/D respectively. IO recorded the statement of witnesses.
PW2 ASI Umrao Singh proved the present FIR as Ex. PW2/A and endorsement made by him on Rukka as Ex. PW2/B. PW3 HC Kailash Chand reiterated the assertions made by PW1. However, he proved Form M-29 as Ex. PW3/A, Rukka as Ex. PW3/B and site plan as Ex. PW3/C. Vide separate statement recorded u/s 294 Cr.P.C r/w Sec. 313(1)(a) Cr.P.C, accused admitted the genuineness of Chemical Examiner Report as Ex. C1.
FIR No. 89/11Police Station: Sarita Vihar State vs. Lalu Page No. 3 of 7
4. In his statement recorded u/s 313 Cr.P.C, accused denied all the incriminating evidence against him and pleaded innocence and false implication.
5. Final arguments advanced by learned APP for State and learned defence counsel heard. Judicial record carefully perused.
6. The scrutiny of testimonies of police witnesses and Rukka Ex. PW3/B provides that accused has been allegedly caught red handed with case property on 06.05.2011 at about 05:05 pm Near Hanuman Mandir, Aali Mod / Aali Gaon Road, New Delhi. PW1 & PW3 stated in their examination that public persons present at the spot declined to join the proceedings despite request. The presence of public persons is, thus, admitted.
Whether association of such public persons was possible in the facts and circumstances of this case is a fact and the burden to prove the same lies on prosecution. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion.
There is nothing in the testimony of any of police witnesses whether any sincere efforts were made by them to join the independent witness. Such a conduct of the police officials is doubtful. The police officials did not make any FIR No. 89/11 Police Station: Sarita Vihar State vs. Lalu Page No. 4 of 7 effort to join any person from the said place or to see whether any independent person was available at such a place to be joined in the proceedings.
7. The aforesaid lapse on the part of police officials assumes significance on account of another grave contradiction apparent in the document Ex. PW1/A. The said document bears FIR number. It is an admitted case of the prosecution that the said document was prepared by IO before sending Ct. Mukesh with Rukka for registration of FIR.
In this regard, reference can be made to the judgment of Hon'ble High Court of Delhi in case titled as Mohd Hasim V/s State 1999 VI AD (Delhi) 569 wherein it was observed:-
"...documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and in both cases, prosecution case would collapse."
It raises doubt that the entire paper work was done by the police officials at Police Station itself. It further strengthens the doubt of false implication of the accused.
This also raises doubt about the recovery of the said case property from the present accused and strengthens the possibility of planting of the case property upon the accused.
8. The prosecution has not brought on record any document of handing over of seal of 'KC' used by IO to seal the case property. There is nothing on record to prove whether the said seal was ever deposited in the Malkhana of FIR No. 89/11 Police Station: Sarita Vihar State vs. Lalu Page No. 5 of 7 Police Station Sarita Vihar. In these circumstances, the possibility of tempering with case property cannot be ruled out. Even otherwise, the failure to prepare any such document for this purpose also leads to a missing link in the entire series of investigation raising doubt over the reasonable and rational manner of investigation as claimed by prosecution.
9. Prosecution was also under burden to prove the presence of all the patrolling police officials on the spot. Despite being challenged on the said aspect, prosecution failed to prove this fact on record. It is a statutory obligation upon the police officials to enter their departure and arrival time in the daily dairy register kept in the police station. Not adhering thereto is a violation of Rule 22.49 of Punjab Police Rules. Any apparent violation of the law by police officials cannot be overlooked and the adverse inference can definitely be drawn.
It is also significant to note that the entire proceedings of the case were carried out by the same police official who recovered and seized the illicit liquor from the possession of accused. After registration of FIR, it was incumbent upon the police to make some other police official join investigation, however, no step of this nature was taken up leading to a technical flaw in the investigation. Such an omission is fatal and raises doubt over the bonafide of police qua the accused.
10. The aforesaid contradictions, in the considered opinion of the Court, are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend benefit of doubt to him. Accordingly, FIR No. 89/11 Police Station: Sarita Vihar State vs. Lalu Page No. 6 of 7 accused Lalu is acquitted of the charged offence punishable u/s 33 Delhi Excise Act.
Announced in open Court on August 20, 2015 (ARVIND BANSAL) Metropolitan Magistrate(South-East)-05 Saket Courts, New Delhi FIR No. 89/11 Police Station: Sarita Vihar State vs. Lalu Page No. 7 of 7