Delhi District Court
State vs . Smt. Reena on 17 April, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 170/2005
P.S. Defence Colony
U/s 61/1/14 Excise Act
State Vs. Smt. Reena
JUDGMENT :
a. Sl. No. of the case : 82/2
b. Date of Institution : 17.05.2005
c. Date of Commission of Offence : 25.03.2005
d. Name of the complainant : ASI Mukhtiar Singh
PS Defence Colony
e. Name of the accused and his : Smt. Reena
parentage and address W/o Raj Kumar
R/o H.no.139, Masjid Moth,
New Delhi
f. Offence complained of : U/s 61/1/14 Excise Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 17.04.2013
i. Final Order : Acquittal
j. Date of such order : 17.04.2013
1. The accused in this case was sent up for trial for the commission of offence U/s 61/1/14 of Excise Act.
FIR NO. 170/2005 PAGE 1 OF PAGE 8 PS DEFENCE COLONY
2. The facts in brief are that on 25.03.2005, IO/ASI Mukhtiyar Singh while patrolling duty along with Ct. Jagdish and Ct. Brahma Nand were present at Sohan Lal Market, Masjid Moth where at around 6.00 p.m., one secret informer met with them and informed that at H.no. 139, Masjid Moth, one TSR had arrived having illicit liquor and accused was selling the liquor. On this information, IO prepared the raiding party and reached the spot and apprehended the accused namely Smt. Reena while dragging four plastic kattas inside her house. On checking, each katta was found containing 58 quarter bottles of illicit liquor of 180ml each. Thereafter a tehrir was prepared and present case FIR was got registered in PS Defence Colony. During the investigation site plan was prepared. Statement of witnesses were recorded. Accused was arrested and after completing the other formal investigation, the challan was presented before the court for trial u/s. 61/1/14 Excise Act against the accused.
3. As a prima facie case was made out against the accused, charge was framed against the accused on 26.10.2005, U/s. 61/1/14 of Excise Act to which she pleaded not guilty and claimed trial.
4. To prove its case against the accused, the prosecution has examined seven witness namely HC Gayatri Devi as PW1, HC Jagdish as PW2, HC Brahma Nand as PW3, HC Ajay Kumar as PW4, ASI Mukhtiyar Singh as PW5, HC Abhay Singh as PW6 and ASI FIR NO. 170/2005 PAGE 2 OF PAGE 8 PS DEFENCE COLONY Mukesh Kumar as PW7.
5. PW1HC Gayatri Devi has testified that on 25.03.2005, she along with HC Abhay Singh reached the spot in front of H.no. 139, Masjid Moth where ASI Mukhtiar Singh met them and produced the accused present in the court before them. PW1 further testified that ASI Mukhtiar Singh had also handed over the documents and the case property to HC Abhay Singh. As per the request of IO, she conducted the personal search of accused Reena vide memo Ex. PW1/A. IO had also arrested the accused vide memo Ex. PW1/B. Accused did not prefer to cross examine PW1.
6. PW2 HC Jagdish has testified that on 25.03.2005, he along with Ct. Brahmanand and ASI Mukhtiyar Singh was on patrolling duty where at around 6.00 p.m., one secret informer came and informed ASI Mukhtiyar Singh that at H.no. 139, Masjid Moth, New Delhi, one TSR had supplied the illicit liquor and if raided, illicit liquor could be recovered. PW2 further testified that 34 public persons were asked to join the investigation but they all refused and left the place without disclosing their names and addresses. PW2 further testified that at around 6.10 p.m., they all reached the spot and found accused Reena present in the court dragging four plastic kattas/sacks inside her house and she was apprehended. On checking, it was found containing 58 quarter bottles in each FIR NO. 170/2005 PAGE 3 OF PAGE 8 PS DEFENCE COLONY sack/katta. PW2 further testified that one quarter bottle was taken out as sample from each sack and remaining were kept in those sacks and were sealed with the help of white cloth and sealed with the seal of MSB and the seal after use was handed over to him. PW2 further testified that form M29 was filled at the spot. The seizure memo of illicit liquor was prepared vide memo Ex. PW2/A. Thereafter IO prepared the rukka and handed over the same to Ct. Brahma Nand for the registration of FIR and thereafter further investigation was handed over to HC Abhay Singh. PW2 further testified that HC Abhay Singh prepared the site plan at the instance of ASI Mukhtiyar Singh vide memo Ex. PW2/A. Thereafter accused was arrested vide memo Ex. PW1/A and her personal search was got conducted by lady HC Gayatri Devi vide memo Ex. PW1/B. PW2 had correctly identified the case property which is Ex. P1 to P4 collectively.
In his cross examination, PW2 has testified that he made DD entry but he did not remember the number of the same.
7. PW3 HC Brahma Nand has also deposed the same facts as deposed by PW2.
8. PW4 HC Ajay Kumar has testified that on 25.03.2005, on receipt of rukka through Ct. Brahma Nand, he recorded the present case FIR which is Ex. PW4/A. He also put his endorsement on rukka vide Ex.
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PW4/B.
Ld. counsel for accused did not prefer to cross examine PW4.
9. PW5 ASI Mukhtiyar Singh has also deposed the same facts as deposed by PW2 and PW3. PW5 further testified that he wrote tehrir vide Ex. PW5/A and sent Ct. Jagdish for the registration of FIR who came back at the spot along with original tehrir and copy of FIR with HC Abhay Singh. The said tehrir was handed over to HC Abhay Singh for further investigation. PW5 further testified that he handed over the accused along with the recovered illicit liquor to HC Abhay Singh who prepared the site plan at his instance.
10. PW7 ASI Mukesh Kumar has also deposed the same facts as deposed by PW2, PW3 and PW5.
11. After closing of prosecution evidence, statement of accused was recorded U/s 313 r/w. 281 of Code of Criminal Procedure Code,1973. In her statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. She further denied to lead any evidence in her defence.
12. I have heard the Ld. APP for the State and Ld. Counsel for the accused and also perused the record.
FIR NO. 170/2005 PAGE 5 OF PAGE 8 PS DEFENCE COLONY 13. In this case, the prosecution is required to establish beyond
reasonable doubt that the accused was in possession of four plastic kattas each containing 58 quarter bottles of illicit liquor without any valid license. All the witnesses produced by the prosecution are police personnels. All of them have supported the prosecution version.
14. However no public witness has been associated with the investigation. No independent witness has been joined at the time of the arrest of the accused and recovery of the weapon. All the witnesses to the recovery being police officials, such recovery does not inspire confidence. Similar view has been expressed by the Supreme Court in Sanspal Singh v. State of Delhi, (1998) 2 SCC 371 and the Delhi High Court in Staila Sayyed v. State, (Delhi) 2008(4) JCC 2840.
15. Further, it needs to be noted that the seizure memo of the case property bears the number of FIR. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid document, which was allegedly prepared on the spot before registration of the FIR. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the illicit liquor or number of the said FIR was inserted in the document after its registration. In both the FIR NO. 170/2005 PAGE 6 OF PAGE 8 PS DEFENCE COLONY situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery in the manner alleged by the prosecution. Reliance may be had to the decision of the Delhi High Court in Lalji V. State, (Delhi) 2000(1) R.C.R. (Criminal) 622 may be referred to.
16. Again, there is nothing on record to prove that the seal with which the recovered plastic kattas containing the illicit liquor was sealed was handed over to any independent witnesses after use. No evidence is on record to show that CFSL form was filled or deposited with Moharrar Malkhana. In such circumstances possibility of tampering with contents of sealed parcel cannot be ruled out. It was very essential for prosecution to have established that sealed parcel was not tampered with. In this respect the decision of the Delhi High Court in Safiullah v. State (Delhi Administration), (Delhi) 1993 (1) R.C.R. (Criminal) 622 may be referred to.
17. Moreover, no DD entry in respect of PW2, PW3 and PW5 is proved on record to establish that they all were actually present in the area at the relevant time in connection with patrolling duty in the area. Thus the presence of these witnesses at the alleged time itself is rendered doubtful. This view has been expressed by the Delhi High Court in Shekhar v. State of NCT of Delhi, (Delhi) (D.B.) 2008 Cri.L.J. 3258.
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18. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
19. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and she is given the benefit of doubt and therefore accused Smt. Reena is acquitted for the offence punishable U/s. 61/1/14 of Excise Act for which she stands charged.
Announced in the Open Court On 17.04.2013 (DEEPAK SHERAWAT) Metropolitan Magistrate South East District/New Delhi FIR NO. 170/2005 PAGE 8 OF PAGE 8 PS DEFENCE COLONY FIR No.170/05 PS Defence Colony u/s 61/1/14 Excise Act 17.04.2013 Present: Ld. APP for the State.
Accused on bail with counsel.
Final arguments heard.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 61/1/14 of Excise Act for which she stands charged.
Accused is readmitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/with one surety in the like amount. Bail bond furnished. Same is accepted. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused shall remain bound by the personal bond as well as surety bond for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East Delhi/22.04.2013
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