Delhi District Court
State vs . Rani on 6 March, 2013
State vs. Rani
IN THE COURT OF SH AJAY GARG
Metropolitan Magistrate-03, South, New Delhi
State Vs. Rani
FIR NO. : 659/07
U/S : 61/1/14 Excise Act
PS : Sangam Vihar
JUDGMENT
a) Sl. No. of the case : 2442/3
b) Date of commission of offence : 07.07.2007
c) Date of institution of the case : 11.01.2008
d) Name of the complainant : Ct. Ishwar Singh
e) Name & address of the : Rani W/o.
accused Sh. Vinod
R/o House no. KII/73
Harijan Basti, Sangam Vihar
New Delhi.
f) Offence complained off : 61 Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 06.03.2013
i) Final order : Acquitted
j) Date of Judgment : 06.03.2013
FIR No. 659/07 1
State vs. Rani
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Rani has been sent to face trial for offence U/s 61/1/14 of Excise Act with the allegations that on 07.07.2007, at about 09:20 p.m., near Nahari Baba Mandir, near Sehgal Farm, Sangam Vihar, New Delhi within the jurisdiction of PS Sangam Vihar accused was found in possession of one plastic katta containing 144 quarter bottles of Jagadhari no.1 Masaledar Desi Sharab meant for sale in Haryana only, without any requisite license in contravention to the notification issued by Delhi Government Investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused person was consequently summoned. A formal charge U/s 61/1/14 Excise Act was framed against the accused on 23.08.2011 to which she pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, only one witness has been examined on behalf of the prosecution.
4. PW1; HC Ishwar Singh is the complainant who deposed that on 07.07.2007, he was on patrolling when he noticed the accused coming from forest side with a plastic sack. He deposed that he apprehended the accused and illict liquor was recovered from her possession. He further deposed that in the meanwhile HC Illiyas and Ct. Savitri reached the spot and he handed over accused along with case property to HC Illiyas. He deposed that IO carried out all the proceedings in his presence. He identified his statement Ex. PW1/A, FIR No. 659/07 2 State vs. Rani Seizure memo of illicit liquor Ex. PW1/B, arrest memo Ex. PW1/C, personal search memo Ex. PW1/D and duly identified the case property Ex. P-1.
5. P.E was closed vide order of the court dated 06.02.13 and statement of accused U/s 313 Cr.P.C was recorded , wherein she has refuted the allegations levelled against her in toto. Accused chose not to lead any defence evidence in her favour.
6. I have heard the rival submissions and carefully perused the record.
7. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :-
"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."
8. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference:- Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-
''22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, FIR No. 659/07 3 State vs. Rani whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note : The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
9. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique FIR No. 659/07 4 State vs. Rani motive on the part of the prosecution."
10. Furthermore when the case property was produced before the court, it was observed that seal on the katta was in damaged condition and all the quarter bottles were found to be empty. In these circumstances, possibility of tampering with the case property cannot be ruled out. In a case of Excise Act, the identity of the case property forms the bedrock of the indictment. Once the same is shrouded in serious suspicion, conviction of the accused cannot be sustained upon the testimony of police officials uncorroborated by any independent/ public witnesses. 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 was deposited in the malkhana intact, accused is entitled to benefit of doubt.
11. In the present case, no sincere effort appears to have been made out by the IO to join public witnesses. Even as per complainant HC Ishwar Singh, IO had requested 4-5 passers-by to join the police proceedings but they have all left the spot without telling their names and addresses after giving reasonable excuses for not joining the police proceedings. It is note worthy that I.O has not made a note of the excuses given by the passers-by in the rukka. This failure on his part goes to suggest that he did not make sincere efforts to join the passers-by in the police proceedings. Also as per rukka IO did not serve written notice to the passersby who refused to join the police proceedings. At least in the facts and circumstances of the present case, IO could have very well served the passers-by with notice in writing requiring them to join the police proceedings or to face action u/s 187 IPC in as 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 FIR No. 659/07 5 State vs. Rani 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.
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''.
Roop Chand V/s The State of Haryana,1999 (1) C.L.R 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 FIR No. 659/07 6 State vs. Rani 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 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''.
12. In view of the aforesaid, I am of the opinion that the prosecution has failed to prove its case beyond all reasonable doubts and the benefit of doubt must necessarily go to the accused person. Accused is accordingly acquitted for the charges U/s 61/1/14 Excise Act levelled against her.
Announced in the open court on 06.03.2013 (Ajay Garg) MM-03/New Delhi / 06.03.2013 FIR No. 659/07 7