Delhi District Court
3.Title :State vs . Anil on 5 December, 2012
IN THE COURT OF SHRI RAJESH MALIK : MM-4 (North)
TIS HAZARI COURTS : DELHI
JUDGMENT
1.FIR No. :337/06 2.Unique Case ID No. :R127540/06 3.Title :State Vs. Anil 3(A).Name of complainant :HC Ravinder Kumar 3(B).Name of accused :Anil S/o Sh. Sukai Ram, R/o P-1/284, Gali no. 8, Nehru Nagar, Anand Parvat, Delhi. 4.Date of institution of challan :25.09.2006 5.Date of Reserving judgment :05.12.2012 6.Date of pronouncement :05.12.2012 7.Date of commission of offence :14.08.2006 8.Offence complained of :U/s 78, 61 of Punjab Excise Act 9.Offence charged with :U/s 78, 61 of Punjab Excise Act 10.Plea of the accused :Pleaded not guilty 11.Final order :Acquitted BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The case of the prosecution in brief is that on 14.08.2006 at about 4:00 PM near Zakhira Railway Pool Road, Delhi, the accused Anil was found in possession of two plastic kattas kept on his scooter bearing no. DL-4SP-1156. Upon checking, one katta was found to be containing two gatta petties containing 24 half bottles of jalwa masaledar deshi sharab in each petty and second katta was found to be containing 24 quarter bottles of shokin masaledar deshi sharab. Both the said kattas were seized vide seizure memo Ex. PW-1/A. Therefore, the accused stood prosecuted for the FIR No. 337/06 1/7 offence punishable u/s 61.1.14 Excise Act.
2. After completion of investigation, charge sheet was filed before the court, copies were supplied to the accused in compliance of Section 207 Cr.PC and charge u/s 78, 61/1/14 of Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. The prosecution in support of its case has examined six witnesses. The testimonies of these material witnesses in brief are mentioned as under;
PW-2 ASI Ravinder Kumar deposed that on 14.08.2006 he was on patrolling duty alongwith HC Munim Singh near Jakhira Railway bridge, red light. At about 4:00 PM, one scooter bearing no. DL-4SP-1156 stopped at red light and on seeing the police party, the scootrist of the said scooter tried to turn back. Thereafter, they stopped the scooterist and saw two plastic kattas were kept over the paydan of scooter. On checking, one katta was found containing two gatta petties and each gatta petties was containing 24 bottles of 500 ml. Second katta was found to be containing one gatta peti containing 24 quarter bottles. He requested 4-5 public persons to join the investigation but none agreed and left the place without disclosing their names and addresses. In the meantime, HC Joginder from Excise Department came at the spot. Thereafter, he took out one bottle from each gatta peti and remaining bottles were were kept in the same gatta petties. Thereafter, he sealed both the kattas with the seal of RK and seized the same alongwith the scooter bearing no. DL-4SP-1156 vide seizure memo Ex. PW-1/A. He filled up the form M-29. Seal after use was handed over to him. Thereafter, he prepared rukka Ex. PW-2/A and handed over the same to Ct. Munim Singh, who got the FIR registered at PS and returned back to the spot alongwith HC FIR No. 337/06 2/7 Ram Avtar. HC Ram Avtar prepared the site plan at his instance. He handed over the accused, scooter, case property, seizure memo, form M-29 and sample bottled to HC Ram Avtar. HC Ram Avtar recorded his supplementary statement.
He was cross-examined by Ld. Defence counsel. In his cross-examination PW-2 deposed that public persons were coming and going from the spot. Few passersby were asked to join the investigation but none agreed. No notice was given to those persons who refused to join the investigation. He deposed that they did not check the documents of ownership of the scooter.
PW-1 and PW-4 4 have deposed the facts in sync with PW-2. Therefore, their testimonies need not to be discussed here.
PW-4 deposited the sample to Excise Lab on 22.08.2006. He deposed that sample and form M-29 were not tampered with until they remained in his possession.
PW-6 HC Ramotar deposed that on 14.08.2006, he was posted as HC at PP Inderlok PS Sarai Rohilla. After registration of FIR, the further investigation was handed over to him and Ct. Munim handed over him the copy of FIR and original Rukka. Accordingly, he along with Ct. Munim went to the place of occurrence where he met HC Ravinder, who handed over him the accused, two wheeler scooter, two plastic kattas, three sample bottles sealed with seal of RK, form M-29 and memos prepared by HC Ravinder. At instance of HC Ravinder, he prepared site plan vide Ex.6/A. He arrested the accused vide arrest memo Ex.PW1/B and conducted his personal search vide memo Ex. PW-1/C and put FIR particulars on the top of the memos. The FIR No. 337/06 3/7 case property was deposited at Malkhana.
At his instructions, on 22.08.2006, Ct. Brij Mohan collected sample bottles along with Form-M29 from MCHM and deposited the same at Excise Office, ITO. He received the result from FSL which is Ex. PW-6/B. He was cross-examined by Ld. defence counsel. In his cross-examination, PW-4 deposed that he do not know who is the registered owner of the recovered scooter. He deposed that the scooter was LML Vaspa and registration number of the scooter was DL-4SP-1156.
PW-3 deposed that he registered the FIR Ex. PW-3/A on the basis of rukka sent by HC Ravinder through Ct. Munim. He also made endorsement Ex. PW-3/B on the rukka.
4. No other PW was examined. PE was closed vide order dated 15.10.2012. The accused was examined under Section 281 Cr.P.C. wherein he submitted that he is innocent and has been falsely implicated. He further submitted that nothing incriminating was recovered from his possession and he was lifted by the police official and was taken to PS where liquor was planted upon him. However, he denied to lead evidence in his defence.
5. I have heard Ld. APP for the State and the accused. I have gone through the entire record carefully.
6. Now, the stage has been set to examine the case of the prosecution to see whether it inspires confidence and passes the test of probability, credibility and trustworthiness.
7. Further, no independent public witness has been joined during FIR No. 337/06 4/7 investigation despite opportunity. As per the case of the prosecution, the alleged recovery took place at about 4:00 PM near Jakhira Railway bridge, red light. As per the testimony of PW-2 the public persons were coming and going from the spot but none public witness has joined the investigation. The explanation given that certain public persons were requested but they refused does not appeal to common sense and does not appear plausible as even names and addresses of those requested have not been mentioned. It does not appeal to common sense that police officials even could not obtain the names and addresses of the persons requested. Admittedly, no legal action had been taken against any of the persons who refused to join the raid. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
8. In the case of PREM SINGH VS. STATE 1996 CRI.L.J.3604 (DELHI) and in the case of PAWAN KUMAR VS. DELHI ADMN.1989 CRLJ 0127 DEL wherein the court observed as under:-
''Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' FIR No. 337/06 5/7
9. Also, in the present case no efforts were made to hand over the seal after use to independent public persons and in such cases in view of SAIFULLA VS. STATE 1998 (1) CCC 497 (DELHI) and ABDUL GAFFAR VS STATE 1996 JCC 497 (DELHI) benefit of doubt is to be given to the accused.
10. Further, there is also delay of about eight days in sending the sample property to the excise lab which has not been explained and in such circumstances especially when the seal was not handed over to independent persons and remained with the police officials of the same police station where the property was lying benefit of doubt must be given to the accused as observed in AJIT SINGH VS. STATE OF PUNJAB 1984 (2) RECENT CRIMINAL REPORTS 95.
11. It has already been observed during the testimony of PW-2 that the case property was in unseal condition and five quarter bottles were empty and one quarter bottle was in broken condition. No such explanation has been tendered by MHCM as to under what circumstances and when the seal was got broken. In such circumstances, benefit should be given to the accused.
12. Further, the prosecution has failed to prove that the scooter on which the accused had taken two plastic kattas containing illicit liquor is belonging to the accused.
13. Now, since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubt, the only plausible finding which can be given against the accused is that of not guilty. Accordingly, the FIR No. 337/06 6/7 accused is acquitted for the offence under Section 78,61/1/14 Punjab Excise Act.
14. Bail bond of the accused is extended till expiry of period of limitation for appeal. Case property be forfeited to the state, to be destroyed after the expiry of period for appeal or revision, if any.
File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN (RAJESH MALIK)
COURT ON 05.12.2012 MM-04 (North)/NEW DELHI
FIR No. 337/06 7/7