Delhi District Court
State vs . Johri on 20 November, 2014
State Vs. Johri FIR No. 317/12 U/s 33 Delhi Excise Act. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE02, (SOUTH EAST), SAKET COURTS, DELHI. FIR NO. 317/12 U/S. : 33 DELHI EXCISE ACT. P.S. : OKHLA INDUSTRIAL AREA STATE VS. JOHRI JUDGMENT
1. Sl. No of the case : 62/2/13
2. Date of commission of the offence : 27.09.2012
3. Date of institution of the case : 07.03.2013
4. Name of the accused : Johri S/o Dudharam
5. Name of the complainant : Ct. Indraj
6. Offence complained of : 33 Delhi Excise Act
7. Plea of accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of such order : 20.11.2014
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused has been sent to face trial under section 33 Delhi Excise Act, 2009, by the SHO, PS Okhla Industrial Area, Delhi.
2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that on 27.09.2012, at about 8.40 p.m, in front of E40/1, OIA Phase II, New Delhi, the accused was found in possession of one plastic bag containing 196 quarter bottles of illicit liquor, without any license or permit of N.C.T of Delhi. Therefore, State Vs. Johri FIR No. 317/12 U/s 33 Delhi Excise Act.
the present FIR No. 317/12, under section 33 Delhi Excise Act, at PS. Okhla Industrial Area, was registered. After completion of the investigation, charge sheet was prepared and filed in the Court.
3. In compliance of Section 207 Cr.P.C. the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge U/s. 33 Delhi Excise Act was made out against the accused Johari. Accordingly, on 26.04.2013, the charge was framed by the Ld. Predecessor of this court. The accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined five witnesses.
5. PW1 HC Jitender is a formal witness. He recorded the case FIR and he has proved its copy as Ex. PW1/A.
6. PW2 Ct. Indraj is the complainant and one of the recovery witnesses of this case. He has deposed that on 27.09.2012 he alongwith Ct. Manoj Kumar was on patrolling duty at E40/8, OIA PhaseII. They saw one person was coming from the side of C. Lal Chowk and he was carrying a plastic katta on his shoulder. On seeing them, he tried to flee from the spot. On suspicion, they apprehended him. They checked the said plastic katta and it was found to be containing quarter bottles of illicit liquor. In the mean time, HC Jitender also reached at the spot and State Vs. Johri FIR No. 317/12 U/s 33 Delhi Excise Act.
he counted them, which were found to be 196 quarter bottles of Narangi Masaledar deshi sarab. IO took one quarter bottle as sample. The sample bottle and remaining quarter bottles were separately sealed with the help of cloth with the seal of "JS" and seized vide seizure memo Ex. PW2/A. He has proved his statement as Ex. PW2/B. IO prepared the rukka and handed it over to Ct. Manoj. Ct. Manoj went to PS and got the FIR registered and came back to spot alongwith original rukka and copy of FIR and handed over the same to IO. Seal was handed over to him after use. IO also filled Form M29. IO prepared the site plan at his instance. IO arrested the accused and conducted his personal search vide memos Ex. PW2/C and Ex. PW2/D respectively. Case property was deposited at the malkhana. He correctly identified the accused and case property which is Ex. P1 (colly).
7. PW3 HC Jitender is the IO of this case and PW 5 Ct. Manoj Kumar is another recovery witness. They have deposed on similar lines as that of PW2 Ct. Indraj. Therefore , their testimonies are not repeated herein for the sake of brevity and to avoid verbosity.
8. PW 4 Ct. Shri Pal has deposed that on 04.10.2012, on the instruction of the IO/HC Jitender he took sealed sample from malkhana and deposited the same at Excise office vide RC no. 146/12/12 against the receipt. He deposited the receipt in the malkhana. The seal of the said sample remained intact during his custody. Therefore, PE was State Vs. Johri FIR No. 317/12 U/s 33 Delhi Excise Act.
closed.
9. Statement of the accused u/s. 313/281 Cr.P.C was recorded. All the incriminating evidence were put to him. In the said statement he has stated that he has been falsely implicated in the present case and he is innocent. He has further stated that the case property was falsely planted upon him. However, he preferred not to lead evidence in defence. Thereafter, the matter was listed for final arguments.
10. I have heard the Ld. APP for the State and Ld. Counsel for the accused. I have carefully perused the case record.
11. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he/she is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.
12. In order to sustain conviction U/s.33 Delhi Excise Act the prosecution is required to prove the following ingredients:
(i) The accused was found in the possession of the illicit liquor; and
(ii) He/She was possessing the same without any licence/permit.
13. The prosecution is required to prove that the illicit liquor was recovered from the possession of the accused by PW2 Ct. Indraj and State Vs. Johri FIR No. 317/12 U/s 33 Delhi Excise Act.
PW5 Ct. Manoj Kumar. They are the material witnesses as they are the alleged recovery witnesses. As per the prosecution, they were on patrolling duty at the time of recovery of the liquor from the possession of the accused. However, the prosecution has failed to place and prove on record the departure entry of the said witnesses vide which they allegedly together left the police station for the purpose of patrolling in the area. The said departure entry was indispensable for establishing their presence at the spot of alleged recovery. Therefore, their presence at the alleged place, time and date of recovery of the illicit liquor from the possession of the accused is doubtful.
14. The alleged incident pertains to have occurred on 27.09.2012, at about 8.40 p.m, in front of E40/8, OIA Phase II, New Delhi. The said spot is admittedly a densely crowded residential area. Further, the recovery witnesses and the IO have conceded the presence of the public person at the spot. Therefore, it is convincingly established that there were many public persons available at the spot of alleged recovery. The criminal law has duly empowered the investigating officer/police officials to initiate action against the persons who refuse to participate in the investigation. But still, IO neither made any genuine and sincere efforts to join public/independent witnesses nor advanced any plausible explanation as to why no independent witnesses were examined by him. Hence, story of the prosecution is further shrouded in State Vs. Johri FIR No. 317/12 U/s 33 Delhi Excise Act.
suspicion.
15. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witnesses that are examined by the prosecution in the present case are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine and sincere efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court.
16. Keeping in view the fact that the version of prosecution witness has remained uncorroborated by any other independent witness regarding the alleged recovery of illicit liquor, it will be highly unsafe to rely upon their version to pass the order of conviction against the State Vs. Johri FIR No. 317/12 U/s 33 Delhi Excise Act.
accused. It has been held in 1975 CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
17. In the light of above facts, the prosecution has failed to discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to the accused Johri and he is acquitted of the charge U/s.33 Delhi Excise Act. He is directed to furnish fresh personal bond in the sum of Rs. 10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. At his request, his previous bail bonds and surety bonds are extended for the next six months. Case property be confiscated to the State.
File be consigned to record room after due compliance. Announced in the open court on 20.11.2014 (DHEERAJ MOR) METROPOLITAN MAGISTRATE02 DISTRICT SOUTH EAST, SAKET COURT, DELHI State Vs. Johri FIR No. 317/12 U/s 33 Delhi Excise Act.
FIR NO. 317/12 U/S. : 33 DELHI EXCISE ACT.
P.S. : OKHLA INDUSTRIAL AREA STATE VS. JOHRI 20.11.2014 Present: Ld. APP for the State.
Accused Johari on bail with counsel.
PW 4 Ct. Shri Pal and PW 5 Ct. Manoj Kumar are examined and discharged. Record reveals that all the material witnesses have been examined. Thus, PE stands closed.
The statement of the accused u/s 313/281 Cr.P. is recorded. The accused has submitted that he does not want to lead defence evidence.
Final arguments heard. Case file perused.
Vide my separate judgment announced in the open court today, the accused Johri stands acquitted for the offence punishable U/s 33 of Delhi Excise Act. He is directed to furnish fresh personal bond in the sum of Rs.10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. He has submitted that his previous bail bonds and surety bonds be extended for the next six months. The said request is allowed and they are accepted for the next six months. Case property be confiscated to the State.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM02/South East/Delhi 20.11.2014