Delhi District Court
State vs . Raj Kumar on 4 December, 2014
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE (WEST) 03,
TIS HAZARI COURTS, DELHI.
FIR No.260/2008
PS - Nangloi
U/s - 61114 Excise Act, 1914
State Vs. Raj Kumar
Unique Case ID No.02401R1543632008
J U D G M E N T
(a) Sr. No. of the case 1599/2/08
(b) Date of offence 14.08.2008
(c) Complainant HC Surender Kumar, No.746/OD, Special Staff, Delhi.
(d) Accused Raj Kumar S/o Sh. Neth Ram R/o H. No.19B, Gali No.
04, Behind Shamshan Ghat, Ranhola Vihar, Nangloi, New
Delhi - 110 041.
(e) Offence(s) Under Section 61114 of The Punjab Excise Act, 1914.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 04.10.2008
(i) Date when judgment Not reserved
was reserved
(j) Date of judgment 04.12.2014
1. The allegations against accused are that on 14.08.2008 at about 03:30 am at thoroughfare near Gali No.04, in front of Rose Valley Sr. Sec. School, Ranhola Vihar, Nangloi, accused was found in possession of 700 quarter bottles of illicit liquor FIR No.260/2008 Page No. 1 of 11 Desi Sharab labeled with label of Samalakha No.01, 250 quarter bottles of illicit liquor labeled with label of Narangi and 50 quarter bottles of illicit liquor labeled with label of Saufi Desi Sharab, all quarter bottles of 180 ml each and all for sale in Haryana only without any license, permit or pass and in contravention of notification issued by Delhi Government. According to prosecution, accused thereby committed offence punishable under Section 61114 of Punjab Excise Act, 1914 extended to Delhi.
2. After completion of investigation, chargesheet was filed. Copy of the challan was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for the offence under Section 61 of Punjab Excise Act, 1914 was framed against the accused vide order dated 02.05.2013 to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Prosecution adduced evidence in support of its case. In this matter, PW1 HC Sajjan Singh has proved and exhibited formal FIR Ex.PW1/A. PW1 was examined, crossexamined and was discharged.
4. PW2 Ct. Gajender Singh has deposed that on 25.04.2008, he was posted in Special Staff, Outer District as Constable. On that day at instructions of IO, he collected samples of this case from MHC(M), PS Nangloi vide R.C.No.9421/2008 and deposited the same with excise lab and receipt of the same was deposited in the PS FIR No.260/2008 Page No. 2 of 11 Nangloi. During the time, when samples remained in his custody, no tempering was done by anyone and remained intact in a manner in which same were collected by him from MHC(M). PW2 was examined, crossexamined and was discharged.
5. PW3 HC Surender has deposed that on 14.08.2008, he was posted in Special Staff, Outer District and on that day, when he alongwith Ct. Pawan and Ct. Rajesh at about 03:00 am were present at Nilothi Mode, Main Najafgarh Road, Near Hanuman Mandir. One secret informer met them and gave information regarding delivery of illicit liquor to accused in a large quantity. He immediately share the information with Sr. Officials, Special Staff through telephone. As per the directions of Sr. Officer, he prepared raiding party to take immediate action. The raiding party consisted of Ct. Rajesh, Ct. Pawan and himself. He requested 1 - 2 passersby after disclosing the information for joining of investigation, but, none of them agreed. Thereafter, they all alongwith secret informer immediately went to village Ranhola. There, they met with Ct. Ved Pal of excise staff. He shared the information with Ct. Ved Pal and joined him in the raiding party. Thereafter, on the directions and information of secret informer, they all reached near Rose Valley Sr. Sec. School and there, they noticed that accused was handling the gatta cartoons covered with black polythene in a park situated near Rose Valley Sr. Sec. School. When accused was moving with one gatta cartoon in his hand towards his house, they stopped him and FIR No.260/2008 Page No. 3 of 11 made inquiry about the gatta cartoon, but, he did not give any satisfactory answer. Thereafter, first he checked the gatta cartoon which the accused was carrying in his hand and it found containing 'country made liquor' having label Masaledar Shokeen Desi Sharab. Thereafter, he counted other gatta cartoons and found that there total 20 gatta cartoons including one which accused was carrying in his hand and all are containing country made liquor. He checked one by one all the gatta cartoons and found 14 gatta cartoons containing 50 quarter bottles each having label Masaledar Shokeen Desi Sharab. Out of these 14 gatta cartoons, he kept aside two quarter bottles from each gatta cartoons as sample and remaining quarter bottles were kept in their respective gatta cartoons and sealed with the seal of 'SD' and the gatta cartoons were numbered as Sr. No.01 to Sr. No14. Samples were sealed separately and same was sealed with seal of 'SD' and numbered as S1. Thereafter, he checked another 05 gatta cartoons and found each containing 50 quarter bottles having label 'Narangi Desi Sharab'. From all the 05 gatta cartoons, he kept aside 02 bottles from each gatta cartoon as sample and remaining liquor were sealed in their respective gatta cartoons numbered as B1 to B5 with the seal of 'SD' and samples were sealed separately in a another plastic sack and numbered as S2. Thereafter, he found in one plastic gatta cartoon, 50 quarter bottles having label of 'Soffi Masaledar Sharab'. From this cartoon, he also kept aside 02 bottles as sample FIR No.260/2008 Page No. 4 of 11 and remaining liquor was sealed with the seal of 'SD', in the same gatta cartoon numbered as C1. Samples were sealed separately and as numbered as S3 and S4. All the liquor was seized vide Ex.PW3/A. Form 38 Ex.PW2/B was filled at the spot. Thereafter, seal was handed over to Ct. Pawan. Thereafter, Rukka Ex.PW3/C was prepared by him by mentioning all the facts and handed over it to Ct. Rajesh. He immediately went to PS, however, they remained at the spot with case property and accused. After FIR, further investigation in the present matter was carried out by HC Yogesh. IO prepared site plan at his instance and he handed over the documents, case property and custody of accused to the IO. IO recorded his statement. He correctly identified the accused and case property Ex.P1 (Collectively) in the Court. PW3 was examined, crossexamined and was discharged.
6. Today i.e. 04.12.2014, further prosecution evidence was closed. STATEMENT OF ACCUSED
7. After closure of prosecution evidence, the statement of the accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973. Incriminating evidence was put to him. He denied all the allegations and stated that he is innocent and has not committed any offence. Accused opted not to lead any evidence in his defence.
8. Final arguments from both sides heard. Record is perused.
FIR No.260/2008 Page No. 5 of 11 APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. In the present case, accused person has been charged for committing an offence punishable under Section 61 of The Punjab Excise Act, 1914. All three witnesses are official witnesses. In order to prove the guilt of the accused, prosecution has to prove that the accused was found in possession of illicit liquor in contravention of notification issued by Delhi Administration and thereby committed an offence under Section 61 of Punjab Excise Act, 1914. Prosecution has examined PW3 to prove the recovery of illicit liquor from the accused. The alleged spot of recovery is a public place i.e. in front of Rose Valley Sr. Sec. School at Ranhola Vihar. However, the witness has not deposed regarding any concrete effort to join public witnesses being made by them at the time of affecting the alleged recovery of illicit liquor, despite their availability on the spot.
10. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In view of this Court, the nonjoining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
In case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), it was held as that : FIR No.260/2008 Page No. 6 of 11 "where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected".
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under : "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows : FIR No.260/2008 Page No. 7 of 11 "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 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.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under : "The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join FIR No.260/2008 Page No. 8 of 11 investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
11. On 12.11.2014, the case property was produced first before the Court and it was observed that the case property has been produced in eight plastic sacks without having seal and particulars and in open condition and furthermore, half of bottles were found empty. This shows that there might be tempering with the case property when the same was kept in the Malkhana. It further caste the shadow of doubt on the case of the prosecution as the condition of the case property contradict the testimony of prosecution witnesses.
In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73 it was observed as under : "During the trial when the case property was produced namely the components of the still, there was no identify mark or chit on the case property to indicate that it related to the alleged recovery pertaining to the petitioner. There was no FIR No. or even chit placed on such a property. When such is the situation, the said property could be used in each and every case against anybody. There has to be proper identification of the property."
In the case of "State of Punjab Vs. Bagga Singh" 1987 Crl. App. No. 578 (P&H) DB, it was held that recovery was not corroborated by the evidence of FIR No.260/2008 Page No. 9 of 11 official witnesses since "the case property produced before the trial court does not bear any identity marks".
In the case of "Datu Ram Vs. State" 1996 1 AD (Delhi) 52, it has been held that all the links starting from the seizure of sample till the same reaches the hands of public analyst must be proved to conclude that the seals remained intact.
In the case of "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that in the absence of any link evidence that the property deposited in the malkhana remained intact till brought before the Court, accused is entitled to benefit of doubt.
In the case of "Ayub Khan Vs. State" (Delhi Administration) ILR 1989 Delhi 467, it was observed as under : "Similarly, in the present case by not examining Malkhana Moharrir of the Police Station where the case property was kept, the prosecution has not been able to establish the chain to prove that the case property after being seized remained intact without being tampered with throughout the particularly when it remained in the Malkhana. Hence, for this short reason, it must be held that the appellant could not have been convicted of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act."
12. There are other facts/contradictions also on the record which erodes the credibility of prosecution evidence. PW3 has deposed in his examinationinchief that he seized the case property vide seizure memo Ex.PW3/A before preparation of Rukka and before sending the Rukka for registration of the case. If, we believe that the illicit liquor was seized vide seizure memo before sending of the Rukka then how come the FIR No.260/2008 Page No. 10 of 11 seizure memo bears the particulars of this case. The seal after use was not handed over to any independent witness by investigating officer and the same also creates a doubt whether the case properties were genuinely recovered in this matter or not. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as 1996 JCC 497. In these circumstances, the abovesaid facts also erode the credibility of the prosecution evidence.
13. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given benefit of doubt in this matter. Accused namely Raj Kumar is accordingly, acquitted for the offence punishable under Section 61 of The Punjab Excise Act, 1914. Case properties be confiscated to the State and be destroyed after expiry of period of appeal.
Announced in open Court on December 04, 2014.
(HARVINDER SINGH) M.M.03/THC (WEST), Delhi/04.12.2014 FIR No.260/2008 Page No. 11 of 11