Delhi District Court
State vs . Kapil on 4 December, 2015
Page No. 1 of - 10 -
IN THE COURT OF SH. ANKIT SINGLA :
M.M.03 (SOUTH DISTRICT), SAKET NEW DELHI.
STATE Vs. Kapil
FIR NO. : 445/13
P.S. : Neb Sarai
U.S. : U/s. 33 Delhi Excise Act
J U D G M E N T
a. Sl. No. of the case and : 62/3 dt. 12.11.2013 date of its institution b. Name of the complainant : HC Manohar No. 170/SD c. Date of commission of offence : 26.09.2013 d. Name of the accused : Kapil S/o Sh. Bhagwan Singh R/o H. No. 1596, L/1st , Sangam Vihar New Delhi62.
e. Offence complained of : U/s 33 Excise Act f. Plea of accused : Pleaded not guilty g. Date reserved for orders : 04.12.2015 h. Final order : Acquittal. i Date of such order : 04.12.2015.
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. In brief the story of prosecution is that on 26.09.2013 at about 9.30AM near House No. 1596, L1st, Sangam Vihar, accused was found in possession of three gunny bags containing total 250 quarter FIR No. 445/13 State Vs. Kapil Page No. 2 of - 10 - bottles of illicit liquor of Asli Santra Masaledar Deshi Sharab for sale in Haryana only, without any license or permit and thereby accused committed an offence punishable u/s. 33 of Delhi Excise Act.
2. After completion of the investigation, the charge sheet was filed in the Court. Copies were supplied to accused and after completion of necessary formalities, charge u/s. 33 of Delhi Exciae Act was framed against accused on 04.08.2014 to which accused pleaded not guilty and claimed trial.
3. The prosecution to prove its case examined four (06) PWs.
Statement of accused was also recorded U/sec. 313 Cr.PC whereby accused denied the story of the prosecution and did not wish to lead defence evidence. The relevant and material extract of evidence produced by the prosecution is as mentioned in the following paragraphs.
4. PW1 Ct.Rajender deposed that on 30.09.2013, he collected three samples sealed with seal of MS and he deposited the same in Excise Lab, LBlock, Vikas Bhavan, ITO vide RC No. 142/21/13 which is Mark PW1/A and after getting the receipt, he handed over the same to MHCM(CP) and IO recorded his statement.
FIR No. 445/13 State Vs. Kapil Page No. 3 of - 10 -
5. PW2 Ct. Girdhari Lal deposed that on 26.9.2013, he was on patrolling duty alongwith HC Manohar and on receipt of a secret information, that they can apprehended accused near gali no. 8, near school with illicit liquor. They requested public persons to join the investigation, but they all refused to join and without wasting of time, the police team apprehended the accused with three plastic bags containing 250 quarters bottles of illicit liquor. IO took one quarter bottle as a sample from each plastic bag. IO prepared pullanda and gave sl. no. 1,2 & 3 to all plastic bag and sl. no. 1A to 3A was given to samples. IO put the seal of MS on the case property and Form M29 was filled by him. Case property was seized vide memo Ex PW2/A . Seal was given to him. IO prepared rukka and handed over the same to him for registration of FIR. After registration of FIR , he came back to spot and handed over the copy of FIR and original rukka to IO. IO prepared site plan and after interrogation accused was arrested and his personal search was got conducted vide memo Ex PW2/B and Ex PW2/C and recorded the disclosure statement of accused vide memo Ex PW2/D. Case property was deposited in malkhana and IO recorded his statement. This witness correctly identified the case property as FIR No. 445/13 State Vs. Kapil Page No. 4 of - 10 - Ex P1(colly).
6. PW3 HC Manohar Singh deposed on the line of PW2 Ct. Girdhari Lal and in addition to deposition of PW2, he further deposed that he prepared rukka as Ex PW3/A, site plan as Ex PW3/B. He also deposited that and on 30.09.2013, MHCM send the sample on his instruction to Excise Lab , ITO by Ct. Rajender. He got the result of the same on 21.10.2013.
7. PW4 HC Om Parkash deposed that on 26.9.2013, he was posted at PS Neb Sarai and on that day HC Manohar handed over photocopy of seizure memo and three plastic bags and three samples sealed with seal of MS. He made entry in register no. 19 vide entry no. 2610 Ex PW4/A. On 30.9.2013, on the instruction of IO he sent three samples duly sealed with the seal of MS through Ct. Rajender to deposit the same in Excise Lab, ITO and Ct. Rajender handed over him the receiving of Excise Lab. No alteration or tempering with the samples and case property was made till the same remained in his possession.
8. PW5 ASI Raghvir Singh deposed that on 26.9.2013 he was performing his duties as duty officer from 8am to 4pm. On that day, at about 11.20AM, Ct. Girdhari lal brought rukka sent by HC Manohar FIR No. 445/13 State Vs. Kapil Page No. 5 of - 10 - and on the basis of the same, he registered FIR Ex PW5/A. He endorsed rukka Ex PW5/B and after registration of FIR, he handed over the copy of FIR and rukka to Ct. Girdhari Lal to hand over the same to HC Manohar.
9. PW6 ASI Kumher Singh deposed that on 21.10.2013 he collected the excise result and on 22.10.2013 he prepared the final report of the present case and submitted the same in court.
10. No other witnesses were examined by the prosecution and PE was closed. Statement u/s 313 Cr.PC of accused was recorded whereby she submitted that she has been falsely implicated.
11. Arguments as advanced by Ld. APP as well as Ld defence counsel were heard.
12. In the present case, it is submitted by Ld. APP for the State that the recovery witness has proved the case of the prosecution beyond reasonable doubt, whereas Ld. defence counsel for the accused has argued that as no public witness has been joined the investigation and therefore the story of the prosecution can not be believed.
13. I have carefully perused the material on record and gone through the submissions of Ld. APP for the State and Ld. defence counsel for FIR No. 445/13 State Vs. Kapil Page No. 6 of - 10 - the accused.
14. In judgment titled as State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, Hon'ble Supreme Court held :
The failure of the prosecution to examine independent witnesses though available is fatal for their case.
In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that: Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
The court would also like to refer to the judgment titled Ritesh Chakarvarti Vs. State of Madhya Pradesh, (SC) 2006 (4) R.C.R (Criminal) 480 : "If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was FIR No. 445/13 State Vs. Kapil Page No. 7 of - 10 - made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken.
Further Illustration (g) appended to Section 114 of the Indian Evidence Act reads thus:
"The court may presume
(a)***
(b)***
(c)***
(d)***
(e)***
(f)***
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who holds its."
Thus on the basis of this provision of law, an adverse inference, is drawn for nonexamination of independent witnesses.
15. In the present case, as per the prosecution, Ct. Girdhari and HC Manohar were on patrolling duty vide DD. One copy of DD entry was placed on record but the register in which the DD entry was recorded, was not produced nor this DD entry has been proved by any witness. This DD entry is attested to be true copy by ACP. However neither ACP appeared in the present case nor original DD entry was brought in court to show that this copy of DD entry was genuine. Even PW2 Ct. Girdhari and PW HC Manohar did not stated that they went by what DD entry. In such circumstances, this copy of DD entry cannot be read in evidence as no reasons has been cited as to why original register in which this DD entry was recorded was produced in court. No ground for leading FIR No. 445/13 State Vs. Kapil Page No. 8 of - 10 - the secondary evidence was ever pleaded.
16. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:
(c) 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.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
17. In view of this rule, while deposing none of the prosecution witnesses has told that by what entry in the register no. II, they were on vehicle checking duty in the particular area. In the present case also this provision has not been complied with by the prosecution witnesses. The relevant entries regarding the arrival and departure of the police officials has not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the FIR No. 445/13 State Vs. Kapil Page No. 9 of - 10 - provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
18. In the present case as per charge sheet the IO is HC Kumher and complainant is HC Manohar. However perusal of file shows that all the investigation were done by HC Manohar. HC Kumher had only collected the excise result and prepared the final report. After alleged recovery it was the duty of the investigating agency to appoint another IO to rule out the possibility of allegation of false case. In the present case, IO Manohar and Ct. Girdhari Lal apprehended the accused. They themselves conducted the entire investigation. They are the only material witnesses. Possibility of false implication by them against the accused cannot be ruled out. They have done everything in the investigation. They also did not join any public witnesses. Since complainant and IO are same which goes to the root of matter. It is settled law that complainant cannot himself be investigating officer and if complainant himself is investigating officer, the whole investigation is vitiated. Reliance is placed upon i..e 1995 Criminal Law General 3988 Megha Singh Vs. State of Haryana, Hon'ble Supreme Court wherein Hon'ble Supreme court has stated that it is against the tenant of basic principal of natural justice that complainant himself is IO and declared that whole investigation is vitiated.
19. Thus, keeping in view the fact that there is no public witnesses to FIR No. 445/13 State Vs. Kapil Page No. 10 of - 10 - the recovery or explanation as to why public persons were not joined in the raiding party, and also in view of other short comings as discussed above it can be said that the prosecution has failed to prove its case beyond reasonable doubt. Thus, accused Kapil is hereby acquitted 33 Delhi Excise Act.
20. Accused is directed to furnished the bail bond u/s. 437A CrPC on 05.12.2015 and then file be consigned to record room.
Announced and dictated in (ANKIT SINGLA)
the open Court on 04.12.2015 MM(03)/South District
Saket / New Delhi
FIR No. 445/13 State Vs. Kapil