Delhi District Court
State vs . Rakesh on 7 April, 2007
1
IN THE COURT OF DR. ARCHANA SINHA:
METROPOLITAN MAGISTRATE: KARKARDOOMA COURTS:
DELHI
FIR NO.: 85/2003
P.S. : Farsh Bazar
U/s : 61 Punjab Excise Act
State Vs. Rakesh
1. Sl. No. of the case : 512/F/06
2. Name of the complainant : state
3. Date of commission of offence : 16.3.2003
4. Name of accused : Rakesh
S/o Late Sh.Roshan Lal
R/o H. No. 287,
Gali no.6, West Kanti
Nagar, Shahdara,
Delhi.
5. Offence complained of or proved : 61 Punjab Excise Act
6. Plea of guilt : Accused pleaded not
guilty
7. Final order : Acquittal
8. Date of such Order : 07.04.2007
JUDGEMENT
1. The brief resume of the prosecution case against the accused State vs.Rakesh FIR no.85/03 BR 2 Rakesh S/o Late Sh. Roshan Lal is that on 16.3.03 at about 6.00 pm at 18 Quarter, 60 Feet Road, Vishwas Nagar, Shahdara,Delhi within the jurisdiction of PS Farsh Bazar he was found in possession of thirty quarters of Bonnie Scotch Special Malted Whiskey and thereby committed an offence punishable U/s 61 of Punjab Excise Act within the cognizance of this Court.
2. For the above stated allegations of the prosecution, the predecessor Court of Sh. Chandra Shekhar, the then Ld. MM: KKD:
Delhi vide its order dt. 18.3.2005 framed charges against the accused Rakesh for the offences punishable U/s 61 Punjab Excise Act to which he had pleaded not guilty and claimed trial and thus the trial has commenced.
3. In support of its case, the prosecution examined total number of 5 prosecution witnesses during trial.
Out of these examined five prosecution witnesses, PW1 Birju Singh, PW3 Birjender Singh and PW4 constable Ramesh Kumar were the State vs.Rakesh FIR no.85/03 BR 3 formal witnesses who were not present on the spot at the time of occurrence and thus, were nothing to say about the occurrence or the alleged recovery but came to the witness box to authenticate their role played during the course of investigation.
In this list of formal witnesses, PW4 constable Ramesh Kumar was the link evidence who came to the witness box to testify that he had taken sample of illicit liquor in the pullanda for examination in excise lab and during the period it was in his custody, nobody has tempered with the case property and sample. Thus this witness was formal witness as he was nothing to prove against the accused regarding the recovery but was necessary link evidence to prove the intactness of the sample till the period it was examined in the excise lab.
Whereas, PW1 HC Birju Singh was the formal witness who came to the witness box to authenticate the registration of the case in this case and PW3 Sh. Brijender Singh, the assistant chemical examiner from the excise lab, was another formal witness who proved the report of the excise lab as Ex.PW3/A testifying that the samples when analysed were containing whiskey.
State vs.Rakesh FIR no.85/03 BR 4 Whereas, PW2 constable Mahesh Kasana and PW5 constable Ajit Kumar were the material witnesses of the prosecution as they were the recovery witnesses who allegedly apprehended the accused and recovered the alleged liquor from the possession of the accused. Thus the case of the prosecution basically rests on the testimony of these witnesses and these witnesses are the star witnesses of the prosecution. During trial, IO ASI Kanwar Singh was not examined and thus, the facts stated and deposed by recovery witnesses regarding the investigation conducted by the IO could not be compared for their authenticity and even the malkhana moharar HC Lakhi Singh was not examined to authenticate the number of items of case property deposited with him and also to prove the intactness of the case property as well as of the sample deposited with him.
During trial number of documents were exhibited which consists FIR Ex.PW1/A, complaint Ex.PW5/A, rukka Ex.PW1/B, excise report Ex.PW3/A, seizure memo Ex.PW2/A personal search memo Ex.PW2/C and arrest memo Ex.PW2/B etc..
State vs.Rakesh FIR no.85/03 BR 5 That is all for prosecution evidence.
4. Statement of accused was recorded U/s 281 Cr.P.C wherein, all the incriminating evidence and documents put to him and he denied all as incorrect and pleaded innocence submitting that he was lifted by the police officials from Shahdara Mandi when he was purchasing some milk product(khoa) from the market, on the pretext of some inquries in the police station but in support of his case he did not lead any defence evidence.
5. I have heard the Ld. APP for the state who has submitted that the case of the prosecution has been proved through the testimony of recovery witnesses constable Mahesh Kasana and constable Ajit Kumar who identified the accused in the court and proved the recovery of the alleged liquor and with the supporting evidence of other witnesses who proved the documents to corroborate the circumstances in which the accused was apprehended and arrested.
State vs.Rakesh FIR no.85/03 BR 6 Whereas, defence counsel Sh. P. K. Khanna has countered the prosecution case particularly on the ground of nonjoining of independent witnesses at the time of recovery and also on the ground of nonexamination of IO of the case, submitting that the case property allegedly recovered from the possession of the accused was not examined in laboratory and only a part case property was sent as sample leaving a room of doubt about its containing liquor(whiskey) in all the containers and that the bag mentioned in the testimony of recovery witness was differently described at two places creating a doubt particularly when a receipt of purchase of liquor was not produced by the prosecution.
6. In the light of contentions, of both the parties, when the evidence on record was appreciated, it was observed that the accused person was identified by both the recovery witnesses in the court and the case property was identified as well, stating that the same case property recovered from the possession of the accused.
State vs.Rakesh FIR no.85/03 BR 7 It is further observed that though the identity of the accused was informed in the Court in a parroted routine manner by the witnesses in their examination in chief, yet, during crossexamination both the witnesses failed to recollect the description of the clothes worn by the accused on the day of occurrence, creating a doubt on the identity of the accused and when the case property was identified by the witnesses it was recorded on record during examination of constable Mahesh that one plastic bag with the seal of KS was produced and 29 quarter bottles of bonnie scotch were taken out but during crossexamination he disclosed only the word ' bag' and not the ' plastic bag' and colour of bag was mentioned as 'w hite' but the colour was not recorded at the time of production of case property and IO could not be produced to clarify the make and colour of the bag in which the case property was contained. Further, the sample bottle sent to the CFSL for examination was one out of 30 allegedly recovered and the examination of the liquid contained in the sample bottle opined as `liquor' cannot ejesdem generis be interpreted for the same liquid contained in other 29 bottles particularly when there is a discrepancy regarding the bag containing 30 bottles as State vs.Rakesh FIR no.85/03 BR 8 alleged.
Further, in the above circumstances, the nonexamination of HC Lakhi Singh, the malkhana moharar and nonproduction of register no.19 to show the entry of the items deposited with him, becomes material and case property comes under the shadow of doubts to prove that all the alleged recovered bottles were containing 'li quor' within the ambit of the item contravened and prohibition of which was covered within the purview of Punjab Excise Act.
7. It is a well settled principle of law that in case of the recovery of any contravened item, if not examined for its quantity in full and only sample, randomly selected, is taken out from the whole lot of contents recovered then there may be a doubt as to whether the whole lot was the same contents which could be considered as 'l iquor'.
In the present case, the recovery was of 30 bottles of bonnyscotch and 1 bottle of the recovery was examined in Excise Lab, leaves a room of doubt as to whether the recovery of items i.e. 30 bottles were State vs.Rakesh FIR no.85/03 BR 9 containing liquor at all or not and the contents of one bottle examined in Excise Lab proving that it was 'liq uor' cannot be presumed for the amount of similar 'liq uid' contained in other bottles also.
8. It was further observed that the witnesses differ on timings widening its range for two hours regarding the time of arrest of the accused and about the procedure conducted by the recovery witnesses and by the investigating persons for the arrest of the accused, sealing of the case property, preparing of the sample, filling of the form M29 and also about the arrest of the accused.
9. It is observed that PW2 constable Mahesh deposed in the Court that the investigating officer had taken one hour for concluding of the proceedings whereas, the other constable Ajit Kumar PW5 deposed that they remained at the spot for three hours. As per their depositions the accused was apprehended at 6.00p.m., the information was given at 6.10p.m. on which the investigation was entrusted upon ASI Kanwar Singh who had gone for investigation alongwith one constable Pawan State vs.Rakesh FIR no.85/03 BR 10 Kumar to the spot and then the constable who had taken rukka examined as PW2 deposed in the Court that he had gone to PS at about 7.40p.m. for registration of the case and on this point rukka Ex.PW1/B contains a cutting without any signatures to own at that place changing the timings to 7.40p.m. and FIR recorded at about 7.55p.m. as per record but the accused was arrested as per arrest memo at about 8.50p.m. as per record in the presence of constable Ajit and constable Mahesh examined as PW2 and PW5.
Thus, the depositions of both the witnesses PW2 & PW5 regarding their stay on the spot comes under the shadow of doubts when PW2 deposed that stay was of one hour and PW5 informs the Court that the stay was for 3 hours.
These discrepancies in timings could not be clarified for the absence of IO who could not be examined during trial and even the other investigating person constable Pawan accompanied with the IO as per record was neither cited as a witness nor examined during trial and he was kept aback from the record and none of the documents placed on record mentions his name to witness the procedure adopted by the IO to State vs.Rakesh FIR no.85/03 BR 11 show that he was present with the IO during investigation. Further, the presence of public witnesses were admitted by the police officials and their nonexamination in the Court or nonmaking of the independent witnesses to the alleged recovery despite their availability is also an admitted case and record shows that no substantive efforts were taken by police officials for their joining. Thus, in the circumstance when the public witnesses were not made the witness to recovery and investigation and police officials differ on the point of timings then the prosecution case comes under the shadow of timings regarding the recovery and also of the procedure adopted by the IO on the spot.
It is a well settled principle of law that if the case of the prosecution is based on the testimony of police officials who differ on the point of timings then the nonjoining of independent witnesses casts doubt on the prosecution story.
The reliance is placed on the observations made in a case titled as Nanak Chand Vs. State of Delhi 1991Journal of Crl. Cases, Delhi High Court, page no.1, wherein it was observed that :
State vs.Rakesh FIR no.85/03 BR
12
'...in
a case of recovery of ... ... in a broad day light in the street with people and houses all around, no witness of the locality though available has been produced, only witnesses are police officials who also differed on the point of time and .... the whole prosecution case is full of doubts... '
10. It is also well settled principle of law if any material witness is kept aback as it was in this case regarding constable Pawan who was kept aback during trial, then an adverse inference can be drawn that on examination he may not support the prosecution case.
The reliance is placed on the observations made in a case cited as AIR 1975 SC 1453 wherein it was observed that :
"It is the duty of the prosecution to examine all the material witnesses and if all the material witnesses are not examined then an adverse inference can be drawn that he was kept aback and presumption can be drawn that on his examination he may not support the prosecution case"
11. Thus, on the observations made on law and facts it is observed that the prosecution could not prove its case for possession of alleged liquor against the accused having failed to clarify the doubts for nonexamination of complete case property covering it within an ambit of State vs.Rakesh FIR no.85/03 BR 13 liquor, nonexamination of IO during trial and non making of constable Pawan as a witness for trial and also for the differences of timings in the depositions of police officials and also non production of any proof of purchase of such liquor by the accused the prosecution comes within the shadow of doubts.
12. Under these circumstances, on number of issues on law and facts, the prosecution case comes under the shadow of doubts and thus, on the basis of principles of criminal justice system, by giving a benefit of doubt, the accused is acquitted as the prosecution case comes under the shadow of doubts on many counts as prosecution could not prove its case beyond reasonable doubt for possession of liquor of the alleged quantity as alleged from the possession of the accused at the relevant date, time and place. Therefore, the accused is acquitted from the charges levelled against him for the offences punishable U/s 61 Punjab Excise Act.
ANNOUNCED IN THE OPEN COURT
ON 7th Day of April 2007
(DR. ARCHANA SINHA)
METROPOLITAN MAGISTRATE
State vs.Rakesh FIR no.85/03 BR
14
KARKARDOOMA COURTS/DELHI
FIR NO.: 85/2003
P.S. : Farsh Bazar
U/s : 61 Punjab Excise Act
State Vs. Rakesh
State vs.Rakesh FIR no.85/03 BR