Delhi District Court
State vs . Raja on 20 January, 2016
IN THE COURT OF MS. NEHA: METROPOLITAN
MAGISTRATE03 : (SOUTH EAST) DELHI
STATE Vs. Raja
FIR No. : 180 of 2012
PS. : Jaitpur
Date of Institution of Case : 19.03.2013
Date of Reserving Judgment : 23.12.2015
Date of Judgment : 20.01.2016
JUDGMENT
a) Date of offence : 31.05.2012 b) Offence complained of : 33 Delhi Excise Act c) Name of the complainant : Ct. Siya Ram d) Name of accused, his : Raja parentage & residence S/o Sh. Prabhu Dayal r/o H. No. D33, Madanpur Khadar, Delhi e) Plea of accused : Not guilty f) Final order : Acquitted Counsels for the Parties: Sh. Arun Kumar Singh, Ld. APP for the State.
Sh. S. K. Solanki, Ld. Counsel for the accused.
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BRIEF REASONS FOR THE JUST DECISION OF THE CASE:
In brief, the case of prosecution is that on 31.05.2012 at about 3.30 pm, at Jalebi Chowk, near Pump House, DBlock, JJ Colony, Madanpur Khadar, New Delhi, accused was found in possession of 140 quarter bottles of liquor having label of rasbhara santra masaledar desi sharab (for sale in Haryana only) without any permit or license. Accused was apprehended by Ct. Siya Ram. Accordingly, FIR no. 180 of 2012 under Section 33 Delhi Excise Act was registered at PS Jaitpur against the accused.
2. After the completion of the investigation, charge sheet for offence under Section 33 Delhi Excise Act was filed against accused Raja. Cognizance of the offence was taken. Copy of charge sheet was supplied to accused. After hearing the parties, charge for the offence u/s 33 Delhi Excise Act was framed against accused, to which he pleaded not guilty and claimed trial.
3. Prosecution in order to prove its case has examined four witnesses.
4. PW1 Ct. Siya Ram is the complainant/recovery witness in this case. He has deposed that on 31.05.2012, at about 03.30 pm, he was FIR no. 180 of 2012 State vs. Raja PS Jaitpur 2 of 9 on patrolling duty at Jalebi Chowk, pump house, DBlock, JJ Colony, Madarpur Khadar. He saw accused coming from Jalebi Chowk side and going to DBlock, who was carrying heavy plastic katta on his right shoulder. Accused, after seeing him, returned towards Jalebi chowk. He asked accused to stop, but he did not stop. Accused was apprehended by him. He checked plastic katta carried by the accused which was containing some illicit liquor. Thereafter, he made a call to PS Jaitpur. HC Shiv Charan came at the spot and conducted the proceeding.
5. PW2 HC Shiv Charan is the IO of this case. He has deposed that on 31.05.2012, Ct. Siyaram has sent information in the PS regarding apprehension of one person. He received DD entry 34 A from duty officer. He went to D Block, Pump House, Vijay Colony, Madanpur Khadar, where Ct. Siyaram had apprehended accused Raja who was carrying liquor. He requested some public persons to join the investigation but none agreed. He recorded statement of Ct. Siya Ram which is Ex PW1/A. Thereafter, he checked the plastic katta which was containing 140 quarter bottles of Rasbhari Santra masaledar desi sharab for sale in Haryana only. He took out two bottles as sample and it was sealed with the seal of SC. Remaining FIR no. 180 of 2012 State vs. Raja PS Jaitpur 3 of 9 bottles were kept in katta and sealed with the seal of SC. He prepared seizure memo of liquour which is Ex.PW1/F. He also prepared rukka which is Ex PW1/B. Rukka was handed over to Ct. Siya Ram for registration of FIR.
6. IO has further deposed that after registration of FIR, he arrested the accused and conducted his personal search vide memo Ex PW1/D and Ex PW1/E. Thereafter, he recorded disclosure statement of accused which is Ex PW1/G. Site plan was prepared which is Ex PW1/C. Accused was taken to lockup and case property was deposited in malkhana. He recorded statement of witnesses and prepared the chargesheet.
7. PW3 Ct. Purshotam is a formal witness who had deposited sample bottles with Excise Lab ITO.
8. PW4 HC Lalit Mohan is the MHCM with whom the case property was deposited. He had handed over sample bottles to Ct. Purshottam to deposit in Excise Lab ITO.
9. During trial, Ld. Counsel for the accused submitted that accused did not dispute the registration of FIR by duty officer, DD entry made by DD writer, Chemical Examiner report and register no.
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19 of MHCM. In view of the submissions made, examination of MHCM, Chemical Examiner, duty officer and DD writer was dispensed with vide order dated 10.12.2015. PE was closed vide order dated 10.12.2015.
10. Accused was examined under Section 313 Cr.P.C and his statement was recorded, wherein accused has denied all incriminating evidence put to him. Accused claimed innocence submitting that he has been falsely implicated in this case. On option being given, the accused did not lead D.E.
11. I have heard final arguments and perused the record very carefully.
12. It is submitted by Ld. APP for the State that all the witnesses have corroborated the testimony of each other and proved the story of the prosecution beyond reasonable doubt, therefore, accused is liable to be convicted.
13. On the other hand, it is submitted by Ld. Counsel for accused that in the present case, no public persons was joined in the recovery/investigation, therefore it creates the shadow of the doubt upon the story of the prosecution.
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14. I have perused the entire material on record and carefully considered the submissions of Ld. APP and Ld. Defence Counsel.
15. Perusal of testimony of prosecution witnesses would show that the recovery witness and the IO have deposed on similar lines.
16. Recovery witness Ct. Siya Ram/PW1 has stated, during cross examination, that he did not ask any public person to join at the time of apprehension of accused. He had also stated that the spot is a residential area. He requested the public persons to join the investigation but none agreed and went away.
17. PW2 HC Shiv Charan, during cross examination has stated that when he reached to the spot, public persons were moving around. He has also stated that the spot is a public place. The name and address of 45 persons were asked but none of them disclosed their names and addresses and left the place.
18. It is note worthy that I.O. had not made any serious endeavour to join the passersby in the investigation of the case. At least in the facts and circumstances of the present case, IO could have very well called the passersby and served them with notice in writing requiring them to join the police proceedings or to face action u/s 187 IPC in as FIR no. 180 of 2012 State vs. Raja PS Jaitpur 6 of 9 much as in the present case there was no possibility of accused escaping his apprehension / arrest or crime going undetected in as much as by the said time, accused stood already apprehended by the police. Failure on the part of prosecution to make sincere efforts for joining independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws.
19. 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 join the raiding party to witness the recovery being 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''.
20. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R FIR no. 180 of 2012 State vs. Raja PS Jaitpur 7 of 9 69, the Hon'ble Punjab & Haryana High Court held as under: " 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 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 names 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 he witnesses from the public had refused to 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 non joining 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''.
21. In the present case, PW2 HC Shiv Charan has stated that seal was handed over to Ct. Siya Ram after use. Admittedly, the seal remained with the police official after use and it was not handed over to any independent person. Possibility of tempering with the case FIR no. 180 of 2012 State vs. Raja PS Jaitpur 8 of 9 property can not be ruled out.
22. In view of discussion hereinabove, I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused holding him guilty for the offence charged. Accordingly, the accused stands acquitted for the offence U/s 33 Delhi Excise Act.
23. Bail bond and surety bond of accused under section 437A Cr. PC which his recent photograph and address proof has been furnished.
Pronounced in the open Court (Neha)
today on 20th January 2016 MM03 (South East)
Saket, New Delhi
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