Delhi District Court
State vs . Smt. Kamla on 25 May, 2011
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IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Smt. Kamla
FIR No. 105/01
PS: Keshav Puram
U/s 61/1/14 Ex. Act.
Case ID No. 2404R0165562001
JUDGMENT
A) Sl. No. of the case : 20/3
B) The date of commission : 28.03.01
of offence
C) The name of the complainant : HC Ram Dhari
PS Keshav Puram, Delhi,
D) The name & address of accused : Smt. Kamla
w/o Sh. Gopal
r/o Jhuggi No. N86/267,
Lawrence Road, Delhi.
E) Offence complained of : U/s 61 of Punjab Excise
Act, 1914
F) The plea of accused : Pleaded not guilty
G) Final order : Acquitted
H) The date of such order : 25.05.2011
Date of Institution : 17.08.2001
Judgment reserved on : 25.05.2011
Judgment announced on: 25.05.2011
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THE BRIEF REASONS FOR THE JUDGEMENT:
1. Briefly stated the case of the prosecution is that on 28.03.2001 at about 7.30 PM near Attarsen Jain Hospital, Lawrence Road, Delhi, accused Kamla was found in possession of plastic cane containing 12 bottles of liquor without any permit or license & in contravention of Delhi Administration notification and thus she thereby committed an offence punishable U/s 61/1/14 Excise Act.
2. After completion of investigation, charge sheet U/s 61/1/14 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 21.02.03, charge was framed U/s 61/1/14 of EX. Act against the accused to which she pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has examined three witnesses i.e PW1 HC Ghan Shyam, PW2 HC Gulab Singh and PW3 HC Ram Dhari till 25.05.2011. One black colour plastic cane which is the case property when produced before the Court today, is found unsealed. Although, MHC(M) has produced copy of DD No. 17B dt. 06.12.08 in this regard but it is not clear as to under what circumstances the contents of the said cane got leaked. Hence, no useful purpose would have been served in examining other witnesses by continuing with the further trial as doubt has already been created in the prosecution story benefit of which must go to the accused. Consequently, PE has been closed.
5. Since there was no incriminating evidence against the accused, her statement under 3 section 313 r/w section 281 Cr.P.C has been dispensed with.
6. I have heard the arguments of Ld. Substitute APP for state and Ld. Counsel Sh. Sunil Tomar adv for accused. I have also perused the record carefully.
7. PW1 HC Ghanshyam and PW3 HC Ram Dhari have deposed that on 28.03.01 they were on patrolling duty at factory area, Lawrence Road, Delhi. At about 7.30 pm, when they reached near Attarsen Jain Hospital, A Block, they saw that one women was coming from the side of A Block with a plastic cane on her left shoulder and on seeing them, she turned back and on suspicion she was chased and apprehended who disclosed her name as Kamla. The plastic cane was checked by opening its lid and smell of alcohol was coming out from it. HC Ram Dhari got arranged an empty bucket and empty bottle of 750 ml through Ct. Ghan Shyam. HC Ram Dhari poured the liquor of the plastic cane in the empty bucket and on measuring, he found there was 16 bottles of liquor in the plastic cane. Liquor was poured back in the plastic cane and one bottle was taken as sample. Sample bottle and plastic cane was sealed with the seal of RD and same were taken in possession vide seizure memo Ex.PW1/A. Seal after use was handed over to Ct. Ghan Shyam. Form M29 was filled up. HC Ram Dhari prepared tehrir Ex.PW3/A and sent the same through Ct. Ghan Shyam to PS for registration of case. After registration of the case, he came back at the spot alongwith SI Mani Ram (since expired). HC Ram Dhari handed over the custody of accused Kamla, recovered cane and relevant documents to IO SI Mani Ram. IO SI Mani Ram prepared site plan Ex. PW3/B at the instance of HC Ram Dhari. IO SI Mani Ram recorded his statement. Accused Kamla was arrested vide arrest memo Ex.PW1/C. The witness i.e PW1 was not cross examined by the accused whereas PW3 has been 4 cross examined. During his cross examination, PW3 deposed that he saw the accused from a distance of about 7080 yards. He had informed the the PS regarding the apprehension of accused with liquor but he did not remember as to whether the information was given by telephone or mobile. He further deposed that he asked 23 passers bye to join the investigation, but none agreed. He alongwith help of Ct. Ghan Shyam measured the liquor through empty bottle of 750 ml.
8. PW2 HC Gulab Singh deposed that on 09.04.01 at the instruction of IO, he took sample bottle sealed with the seal of RD from MHC(M) to deposit the same in Excise Lab vide RC No. 21/21/2001. Nothing material could be extracted during cross examination of said witness.
9. As per story of prosecution, after the alleged recovery of plastic cane containing liquor, no effort whatsoever was made either by PW1 HC Ghan Shyam or by IO HC Ram Dhari to join independent public witness during the investigation despite the fact that it has come on record during the testimony of PW3 that empty bucket and empty bottle were arranged by HC Ghan Shyam (the then Ct). At least in the facts and circumstances of the case, in my opinion 1st IO HC Ram Dhari could very well have joined the shopkeeper from whom the aforesaid articles for measurement of liquor were got arranged. The accused was allegedly apprehended near Attarsen Jain Hospital, Lawrence Road, Delhi and thus, many public persons would have been available at the said place but still no effort is shown to have been made by the IO to witness the alleged recovery or the remaining police proceedings in the present matter as there was no possibility of accused escaping her arrest or crime going undetected because by the said time, accused stood already apprehended. The said conduct 5 on the part of IO creates a reasonable doubt in the prosecution version. 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 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 6 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 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 7 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 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 8 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.
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.
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.
In Thakorbhi Viribhai Vasava & others V/s The State of Gujrat Crime, Vol (1) 9 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 RD belonging to IO HC Ram Dhari. 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.
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 28.03.2001 and charge sheet was filed on 17.08.2001. 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.
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18. The chain of evidence against accused is not complete.
19. In view of aforesaid discussion, accused Kamla is acquitted of the charge U/s 61/1/14 Excise Act giving her benefit of doubt. Her 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: 25.05.2011 Addl. Chief Metropolitan Magistrate1
Rohini, Delhi.