Delhi District Court
State vs . Amit Kumar on 10 August, 2011
1
IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Amit Kumar
FIR No. 110/08
PS: Keshav Puram
U/s 61/78/1/14 Ex. Act
Case ID No. 02404R0215842008
JUDGEMENT
A) Sl. No. of the case : 26/3
B) The date of commission : 21.02.2008
of offence
C) The name of the complainant : HC Lakhvinder Singh Special
Team Crime Branch,
Prashant Vihar, Delhi
D) The name & address of accused : Amit Kumar
S/o Sh. Ishwar Singh
r/o H.No. 360, VPO Nangle Dairy,
Najafgarh, Delhi
E) Offence complained of : U/s 61/78/1/14 of Punjab Excise
Act, 1914
F) The plea of accused : Pleaded not guilty
G) Final order : Acquitted
H) The date of such order : 10.08.2011
FIR No. 110/08 Page No. 1/15
2
Date of Institution : 06.08.2008
Judgment reserved on : 10.08.2011
Judgment announced on: 10.08.2011
THE BRIEF REASONS FOR THE JUDGEMENT:
1. Briefly stated the case of the prosecution is that on 21.02.2008 at about 2.30 AM at Bus Stand, G.T.K. Depot, Jahangirpuri, Delhi, accused Amit Kumar was found carrying 37 cartoons, each containing 48 quarter bottles of 'Hulchul Desi Sharab' illicit liquor in Santro Car No. DL3CAP1032 without any permit or license & in contravention of Delhi Administration notification and thus he thereby committed an offence punishable U/s 61/1/14 Excise Act.
2. After completion of investigation, charge sheet U/s 61/78/1/14 of Punjab Excise Act was prepared against the accused and filed in the Court.
3. After complying with the provisions of Sec. 207 Cr.P.C., arguments on charge were heard and vide order dated 05.09.2009, charge was framed U/s 61/1/14 of EX. Act against the accused to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has examined five witnesses i.e PW1 SI Dharampal, PW2 Ct. Pawan Kumar, PW3 HC Sanjay, PW4 HC Jitender Kumar and PW5 HC Lakhvinder Singh till 02.07.11.
FIR No. 110/08 Page No. 2/15 3
5. In his statement u/s 281 r/w Section 313 Cr.P.C, the stand of the accused is of general denial. He stated that he has been falsely implicated in this case. He further stated that his Santro Car No. DL3CAP1032 had collided with the Santro Car of police officials near border on which he was taken to Prashant Vihar and the case property was planted upon him. However, he opted not to lead any DE.
6. I have heard the arguments of Ld. A.P.P for the State and Ld counsel Sh. Vivek Kumar Adv for accused. I have also perused the record carefully.
PW1 SI Dharampal DO is the formal witness who has proved the carbon copy of FIR No. 110/08 as Ex.PW1/A and his endorsement Ex.PW1/B on rukka. The said witness has not been cross examined by the accused despite grant of opportunity.
PW2 Ct. Pawan Kumar, PW3 HC Sanjay, PW5 HC Lakhvinder Singh are the alleged recovery witnesses who deposed that on 21.02.08 at about 1.30 pm, HC Lakhvinder Singh had received secret information in office of Special Team, Crime Branch Prashant Vihar that a person namely Amit will come from the side of Alipur and would go towards Jahangirpuri and was having huge quantity of illicit liquor in his black colour Santro Car. He shared this information with Inspector and ACP. On their instructions, HC Lakhvinder Singh prepared the raiding party consisting of himself, secret informer, Ct. Pawan and Ct. Sanjay. They reached at about 2.20 am in the night at bus stand GTK Depot, Jahangirpuri. HC Lakhvinder Singh had asked 45 public persons who were passing there for Mandi to join the investigation but none agreed to join the investigation and left the spot without disclosing their names and FIR No. 110/08 Page No. 3/15 4 addresses citing their personal reason. At about 2.30 am, one Santro Car bearing registration No. DL3CAP1032 of black colour was seen coming from the side of Alipur and informer pointed out towards the vehicle. The vehicle was stopped. On checking, one person Amit was sitting on the driving seat of the vehicle whose name was disclosed on inquiry from him. The vehicle was checked and in the said Santro car, 37 cartoon boxes were found. Each cartoon box was checked and was containing 48 quarter bottles of 'Halchal Desi Sharab' for sale in Chandigarh. One quarter bottle from each cartoon box was taken out as sample and sample bottles were sealed with the seal of BS in a piece of cloth. All the samples were given serial number S1 to S37. Remaining bottles were kept in cartoon boxes. Each cartoon box was sealed with the seal of BS and were taken into police possession vide seizure memo Ex.PW3/A. The car alongwith key were also taken into police possession vide seizure memo Ex.PW3/B. IO filled form M29. Seal after use was handed over to Ct. Pawan. HC Lakhvinder Singh prepared the rukka Ex.PW5/A and same was handed over to Ct. Pawan at about 4.00 am for registration of FIR. He came back at around 5.00 AM and handed over copy of FIR and original rukka. Siteplan Ex.PW5/B was prepared by HC Lakhvinder Singh. Accused was arrested vide arrest memo Ex.PW1/A and his personal search was conducted vide memo Ex.PW1/B. The case property and vehicle were taken into police possession and deposited in Malkhana. On 28.03.08, HC Lakhvinder Singh sent Ct. Sanjay alongwith samples to deposit the same at Excise Lab, ITO alongwith form M29. He took the sample bottles from MHC(M) vide RC No. 34/21/08. All the said PWs identified the accused as well as the case property Ex.P1 (Colly) during their testimonies recorded before the Court.
During his cross examination, PW2 deposed that there was no police official in the FIR No. 110/08 Page No. 4/15 5 raiding party with abbreviation of name of BS. He admitted that no other document except arrest memo and personal search memo bear his signature. He deposed that no handing over memo of seal was prepared and he had returned back the seal to IO after 5.00/6.00 am. He further deposed that no DD entry or any document was prepared regarding returning back of seal to IO. There were residential flats near the place of recovery but no public person was requested to join the investigation from those residential flats.
PW3 deposed during his cross examination that the place where accused was apprehended, was residential area. He could not say as to whether any DD entry regarding departure was made before proceedings to the spot. IO did not initiate any action against public persons who refused to join the investigation. Seal of BS was relating to SI Bhaskar Sharma. However, he admitted that there is no reference regarding this fact in his statement u/s 161 Cr.P.C. PW3 deposed that IO had firstly prepared seizure memo Ex.PW3/A and thereafter form M29 was prepared. He admitted that there is no mention in his supplementary statement recorded on 28.03.08 regarding deposit of sample bottles in the excise office that he also took form M29 alongwith sample bottles. He had put his signatures on the register of MHC(M) at the time of obtaining the sample bottles.
PW5 deposed during his cross examination that the first document prepared by him was seizure memo of recovered liquor and thereafter seizure memo of car was prepared. Although, he had mentioned FIR number on both the said memos after registration of FIR but he did not mention this fact either on the seizure memos. He was complainant as well as IO in this case. He admitted that there was no police official in the investigation team having FIR No. 110/08 Page No. 5/15 6 abbreviation of name as BS but he voluntaried that seal of BS was available with him at that time. He admitted that he has not explained in the challan as to how, when, from where and under what circumstances, seal of BS came to his possession and was used by him. He also admitted that no explanation has been given for delay of more than one month in sending samples to the excise lab. He did not prepare any handing over or returning memo of seal but the seal was received back by him from Ct. Pawan after 56 days. He admitted that seal was available with him prior to dispatch of sample bottle to the excise lab. He also admitted that he had seen the accused during appearance in the Court and he had identified him on that basis.
PW4 HC Jitender Kumar is the MHC(M) of PS Jahangirpuri who deposed that on 21.02.08, HC Lakhinder Singh had deposited 37 cartoons containing illicit liquor as well as sample duly sealed with seal of BS, form M29 and Santro Car No. DL3CAP1032 vide entry no. 3324 in register no. 19. On 28.03.08, the samples were sent to excise lab through Ct. Sanjay vide RC No. 34/21/08. He proved photocopy of relevant entries of register no. 19 as Ex. PW3/A and Ex.PW4/B. During his cross examination, he admitted that endorsement regarding dispatch of sample to excise lab does not contain mention of dispatch of form M29 alongwith the sample. He further deposed that relevant entries in register no. 19 does not bear signature of IO at the time of deposit of case property and same also does not bear signature of Ct. Sanjay who had taken the sample for depositing the same in excise lab.
7. Ld. Counsel for the accused argued that there is noncompliance of Section 50(2) and Section 53 of Punjab Excise Act due to which the accused is entitled to benefit of doubt. Ld. FIR No. 110/08 Page No. 6/15 7 Counsel argued that provision contained in those sections are mandatory in nature and non compliance thereof by investigating agency creates doubt in the prosecution story. Next submission raised by Ld. Defence counsel is that HC Lakhinder Singh is complainant as well as IO in this case which is prohibited under the law as complainant himself can not be IO. Next bone of contention raised by Ld. Counsel for the accused has been that no sincere efforts have been made by investigating agency to join independent public witness either during recovery proceedings or during investigation which further creates doubt on the prosecution story.
8. Per contra, Ld. APP for the State has submitted that efforts were made to join public persons in the raiding party as deposed by PW2, PW3 and PW5 but no public person was willing to join the recovery proceeding and thus, no fault should be attributed to investigating agency on this account.
9. As per story of prosecution, IO HC Lakhvinder Singh had asked 45 passersby to join the raiding party as well as the investigation but none agreed and left the spot without telling their names and addresses. It has been admitted by alleged recovery witnesses examined by prosecution in this case that there were residential flats situated near the place of recovery and no resident from said locality, was requested to join the investigation. It has further come on record during cross examination of said witness that IO did not make any effort to note down the names or addresses of public persons refusing to join the investigation and also did not serve written notice upon any public person requesting him to join the investigation. The alleged recovery had already been effected and thus, there was every opportunity available FIR No. 110/08 Page No. 7/15 8 with the IO for associating independent public person during investigation as there was no possibility of accused escaping from his arrest by that time but still, no satisfactory explanation has been furnished by IO for not joining independent public witness in compliance of Section 100 (4) Cr.P.C. At least in the facts and circumstances of the case, in my opinion IO HC Lakhvinder Singh could very well have served the passersby with notice in writing to join the police proceedings as there was no possibility of crime going undetected because by the said time accused stood already apprehended. The above referred mechanical excuse given by the prosecution for not joining the public witnesses in the police proceedings/investigation creates a reasonable doubt in the prosecution version. It is pertinent to note that IO HC Lakhvinder Singh has not made a note of the excuses given by the above said passersby for not joining the police proceedings. Also there is no explanation from the side of IO as to why he did not record the excuses given by the passersby who were requested to join the police proceedings. Moreover, IO HC Lakhvinder Singh could very well have joined the shopkeeper from whom the aforesaid articles for measurement of liquor were got arranged. At this juncture, it would be pertinent to refer to some case laws.
10. In a case law reported as Anoop Joshi v/s State,1992 (2) C.C. Cases 314(HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident 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 joint he raiding party to witness the recovery being FIR No. 110/08 Page No. 8/15 9 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 rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
In a case law reported as Roop Chand v/s The State of Haryana, 1999(1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:
3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the petitioner witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the FIR No. 110/08 Page No. 9/15 10 prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the name and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
In case law reported as Sadhu Singh V/s State of Punjab, 1997(3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:
5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to FIR No. 110/08 Page No. 10/15 11 travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses.
There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version.
11. As such it could be said that IO did not make sincere efforts to join public witnesses before starting initial investigation of the present case and this failure on the part of the IO in view of above said case laws creates a very serious doubt in the prosecution version. FIR No. 110/08 Page No. 11/15 12
12. The case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence tampering with the case property cannot be ruled out as the seal remained all along with the police officials. In this backdrop, the statement of PW2 Ct. Pawan that he had returned back the seal to IO after 5.00/6.00 am on same day and the admission of IO that he had received back the seal much prior to the date when sample bottles were sent to excise lab for analysis assumes importance as the said conduct on their part clearly shows that IO had full opportunity to temper with the case property during the period it remained in Malkhana and the period when it was actually sent for being deposited in excise lab. It is relevant to mention here that alleged recovery was effected on 21.02.08 whereas samples were sent to excise lab on 28.03.08 i.e after more than one month for which no explanation has been furnished by the IO.
13. Relevant notification which may have shown as to what was the permissible quantity for possession of liquor at relevant point of time, has not been produced by prosecution. Even it is not clear as to by what quantity possession of liquor with accused exceeded permissible limits.
14. Further in a case law reported as State of Himachal Pradesh v/s Dharam Dass, 1992(1) C.L.R, it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
FIR No. 110/08 Page No. 12/15 13
In Thakorbhi Viribhai Vasava & others V/s The State of Gujrat Crime, Vol (1) 1987/37 Gujrat High Court (D.B), it has been ruled down that in criminal trials even a slightest doubt raised in favour of accused ordinarily entitle the accused to get acquittal.
15. In this case as per the version of the prosecution, accused was in possession of liquor without any license/permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where the case property was arranged for by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same.
16. As per the case of the prosecution the case property was sealed with the seal of BS. However, admittedly, neither any handing over memo nor returning memo of the seal was prepared by IO. Thus, tampering may not be ruled out as sealed case property and accused were with the police officials till the time case property was deposited in Malkhana. Moreover, it is an admitted fact that there was no police official having abbreviation of BS in the raiding party. PW3 has testified during his cross examination that seal of BS was belonging to SI Bhaskar Sharma but there is no mention about this fact either in the rukka or in the seizure memo or in statements u/s 161 Cr.P.C recorded by IO. In case, seal of BS belong to SI Bhaskar Sharma then it has not been explained as to how and under what circumstances, the said seal came into possession of HC Lakhvinder Singh. Same further creates doubt on the prosecution story.
FIR No. 110/08 Page No. 13/15 14
17. In this case the police has not complied with the provisions of standing order no. 82 regarding the time frame within which the charge sheet must have been filed by the concerned SHO. Accused was arrested on 21.02.08 and charge sheet was filed on 06.08.2008. As per the standing order no. 82, it is the responsibility of the SHO concerned to see that in case like the present one since investigation was completed within 24 hours therefore the charge sheet should have been submitted immediately thereafter. In this case there is inordinate delay in filing the charge sheet.
18. Besides above, there are several material contradictions appearing in the statements of prosecution witnesses examined during trial. PW3 as well as PW5 deposed during cross examination that first document prepared at the spot was seizure memo of recovered liquor but perusal of said seizure memo Ex.PW3/A shows that there is a reference of form M29 in the said memo and it recites that recovered liquor has already been sealed with the seal of BS and form M29 has already been prepared. Secondly, it has not been explained as to how FIR number came to be mentioned on seizure memos Ex.PW3/A and Ex.PW3/B when FIR was registered subsequent to the preparation of those memos. Moreover, the perusal of both the said memos shows that the entire contents thereof including FIR number are mentioned in same handwriting as well as in the same ink. No explanation has been furnished by prosecution in this regard. Thirdly, there is no material available on record to show that form M29 was also sent alongwith sample bottles to excise lab for comparison of seal. In this regard, PW3 has admitted during cross examination that there is no mention in his supplementary statement u/s 161 Cr.P.C recorded on 28.03.08 that he had also taken form M29 alongwith samples on that day. The things became clear when PW4 i.e MHC(M) FIR No. 110/08 Page No. 14/15 15 concerned produced register no. 19 before the Court in which there was no mention regarding handing over of form M29 alongwith samples to Ct. Sanjay (PW3) for being deposited in excise lab. This Court agrees with the arguments raised by Ld. Defence counsel that in the absence of form M29, it was not possible for excise lab to compare the seal available on case property with the sample seal and thus, there has been serious lapse on the part of investigation agency which creates serious doubt in the prosecution story.
19. In view of aforesaid discussion, accused Amit Kumar is acquitted of the charge U/s 61/1/14 Excise Act giving him benefit of doubt. His bail bond if any stands cancelled. Case property be confiscated to the State. File be consigned to record room.
Announced in open Court (VIDYA PRAKASH)
Dated: 10.08.2011 Addl. Chief Metropolitan Magistrate1
Rohini, Delhi
FIR No. 110/08 Page No. 15/15