Delhi District Court
State vs . : Raj Pal on 24 August, 2012
IN THE COURT OF MS. APARNA SWAMI
METROPOLITAN MAGISTRATE02/NORTH
TIS HAZARI COURTS : DELHI
State Vs. : Raj Pal
FIR No. : 351/09
U/s : 61.1.14 of Excise Act
PS : Burari
JUDGEMENT
1 Unique ID No. of Case 02401R0616892010 2 Date of commission offence : 07.11.2009 3 Date of institution of the case : 25.09.2010 4 Name of the complainant : HC Bikar Singh of PS Burari 5 Name of accused, parentage & : Rajpal son of Sh. Hari Singh, Address R/o Gali No. 3, Safiyabad Sanjay Colony, Narela, Delhi. 6 Offence complained of : Sec. 61.1.14 of Excise Act 7 Plea of the accused : Pleaded not guilty 8 Date of reserving for order : Order not reserved. 9 Final order : Acquitted 10 Date of Judgment : 24.08.2012 FIR No. 351/09 1/7 Brief facts of the case:
Accused Rajpal son of Sh. Hari Singh has been sent to face trial with the allegations that on 07.11.2009 at about 7.10 pm at Pusta Pradhan Enclave, Police Picket, Burari, Delhi, within the jurisdiction of Police Station Burari, he was found in possession of illicit liquor of quantity 122 bottles of country made liquor on white colour scooter bearing No. DL8SJ7403, without any license or permit and thereby alleged to have committed offence punishable under Sec. 61.1.14 of Excise Act.
2. The investigation was carried out and after completion of investigation, charge sheet was filed in the court. Copy of the charge sheet along with documents were supplied to the accused. On 29.06.2011 Charge for the alleged commission of offence punishable under Sec. 61.1.14 of Excise Act was framed against accused Rajpal, to which he pleaded not guilty and claimed trial.
3. In order to prove the guilt of the accused, prosecution has examined following witnesses. Brief details of prosecution witnesses are as under: 3.1 PW 1 is Constable (Ct.) B. S. Sheikhu, who is the complainant in the present case. On 07.11.2009, he was posted as Constable at Police Station Burari and was on patrolling duty. While patrolling at about 6.45 pm, when he reached in front of Little Public School, Pradhan Enclave, FIR No. 351/09 2/7 Burari, Delhi, he received secret information that one person would come on a scooter bearing registration number DL8SJ7403 make Bajaj Chetak and would be carrying illicit liquor and it raid is conducted, he can be apprehended. On this information, he made Nakabandi at Pradhan Enclave along with informer. At about 7.10 pm, one person, whose name was later disclosed as Rajpal, came on the aforesaid scooter and on pointing of the secret informer, the said person got stopped by this witness. He started searching the sack, which was lying on footstep of scooter and it was found containing illicit liquor. He then communicated this information to Police Station Burari and after some time IO/ HC Davender Kumar along with Ct. Nemi Chand came at the spot and custody of accused Rajpal was handed over to IO / HC Davender Kumar. This witness identified accused present in the court. His statement was recorded by the Investigating Officer of the present case which is Ex. PW 1/A. He was crossexamined by Ld. Counsel for the accused. 3.2 PW 3 is Assistant SubInspector (ASI) Davender Kumar, who is the Investigating Officer (IO) in the present case. He deposed on oath that on 07.11.2009 after receiving information vide DD entry No. 32 A, he along with Ct. Nemi Chand reached the spot i.e Pradhan Enclave Pushta near Police, Picket, where he met Ct. Bikar Singh, who handed over the custody of accused Rajpal to him, along with recovered sack containing illicit liquor. FIR No. 351/09 3/7 He then requested 45 persons, who were present on the spot to join the investigation, but none agreed. Thereafter, the sack was checked and it was found having 122 quarter bottles of Orange Desi Masaledar Sharab, on each quarter bottle for sale in Haryana only was written.
This witness recorded statement of Ct. Bikar Singh (Ex. PW 1/A). Ten quarter bottles were taken out from the bag as sample and the remaining quarter bottles were converted into pullanda and they were sealed with the seal of DK. Thereafter, Form M29 was filled. The case property and the scooter were taken into possession vide seizure memo Ex. PW 1/B and 1/C respectively. He prepared rukka (Ex. PW 3/A) and FIR was registered through Ct. Bikar Singh (PW 1). Thereafter, site plan (Ex. PW 3/C) was prepared and accused was arrested vide arrest memo (Ex. PW 1/D) and his personal search was conducted vide memo Ex. PW 1/E. Witness identified the accused present in the court. Also case property was brought in the court and was identified by the witness.
He was crossexamined by Ld. Counsel for the accused. 3.3 PW 2 is Constable (Ct.) Nemi Chand. On 07.11.2009, he was posted at Police Station Burari. He deposed that after receiving DD Entry No. 32 A, he along with IO / HC Davender Kumar (PW 3) reached the spot i.e Pradhan Enclave Pushta near Police Post. Rest of his testimony is on the same lines as of PW 3 IO / ASI Davender.
FIR No. 351/09 4/7
He was crossexamined by Ld. Counsel for the accused.
4. The prosecution evidence was closed as the material witnesses were examined and statement of accused under Sec. 313 Cr.PC was recorded, wherein all the incriminating circumstances were put to him, he denied all the allegations against him as false. However, he did not prefer to lead evidence in his defence.
5. The final arguments were heard and I have also gone through the record carefully.
6. The prosecution in order to prove the accused guilty in the present case relies on the testimony of PW 1 Ct. B. S. Sheikhu, PW 2 Ct. Nemi Chand and PW 3 ASI Davender Kumar (IO). The thorough perusal of the evidence of aforesaid witnesses shows various inconsistencies and flaws in the prosecution story. Firstly, it is noted that in examinationinchief of PW 3 ASI Davender Kumar that he requested 45 passersby to join the investigation, but none agreed and left the spot citing their personal reasons without disclosing their names and addresses. At least in the facts and circumstances of the present case, Investigating Officer could have very well served Passersby's the notice in writing requiring them to join the police persons or to face action U/s 187 IPC, as there was no possibility of accused escaping of apprehension / arrest, as the accused stood already apprehended by the police. Failure on the part of prosecution to make sincere efforts to FIR No. 351/09 5/7 join public witnesses in the present case when they are available, creates doubt on the prosecution story. At this point, it is relevant to quote the case of "Anoop Joshi V/s State 1992 (2) C.C. Cases 314 (HC)" wherein Hon'ble High Court of Delhi observed in para 18 that " "It is repeatedly laid down by this court that in such case it should be shown by the police that sincere efforts had been made to join independent witnesses. In the present case it is evident to note 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 rigors of laws while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
7. Further complainant PW 1 Ct. B. S. Sheikhu failed to tell during his cross examination by the counsel for accused the DD entry number vide which he was on duty at Outgate, ISBT on the date of apprehension. At this stage, it is pertinent to quote the provisions of Chapter 22, Rule 49 of Punjab Police Rules, which is provides: "Matters to be entered in Register no. II - The following matters FIR No. 351/09 6/7 shall amongst other, be entered: 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".
8. In view of the facts and circumstances as discussed above, I am of the considered view that prosecution has failed to prove the charge against the accused Rajpal beyond the all shadow of doubts. Thus, he stands acquitted in the present case.
9. He is on bail. His bail bonds stands canceled. Surety be discharged. Original documents, if any, be returned on proper receipt and identification. He is admitted to bail under Sec. 437 A Cr.PC on his furnishing PB/SB in the sum of Rs. 10,000/ each. He seeks time for furnishing bail bonds.
10. Put up for furnishing bail bonds under Sec. 437 A Cr.PC by the accused, on 28.08.2012 at 2.00 pm. Dictated and Announced in the open (APARNA SWAMI) court on 24.08.2012 MM02/NORTH/DELHI FIR No. 351/09 7/7