Delhi District Court
State vs . Dalip on 25 June, 2011
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IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Dalip
FIR No. 364/07
PS: Keshav Puram
U/s 61/1/14 Ex. Act
Case ID No. 24004RO532592007
JUDGEMENT
A) Sl. No. of the case : 646/3
B) The date of commission : 02.06.2007
of offence
C) The name of the complainant : Ct. Ajeet Pal
PS Keshav Puram, Delhi
D) The name & address of accused : Dalip
s/o Sh. Ranjeet
r/o Jhuggi No. 86/16, Indl.Area
Railway Line, 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 : 25.06.2011
FIR No.364/07 Page No.1/10
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Date of Institution : 21.09.2007
Judgment reserved on : 25.06.2011
Judgment announced on: 25.06.2011
THE BRIEF REASONS FOR THE JUDGEMENT:
1. Briefly stated the case of the prosecution is that on 02.06.2007 at about 12.20 noon at Railway Fatak, Industrial Area, Lawrence Road, Delhi, accused Dalip was found in possession of plastic cane containing 20 bottles of 750 ml each of illicit 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 04.04.2009, 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 three witnesses i.e PW1 HC Jitender Singh, PW2 HC Hari Prakash and PW3 HC Ajeet Pal till 25.06.2011. One plastic cane which is the case property when produced before the Court today, is found in cracked condition and completely empty. Although, MHC(M) has produced copy of DD No. 17B dt. 01.12.10 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 FIR No.364/07 Page No.2/10 3 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 section 313 r/w section 281 Cr.P.C has been dispensed with.
6. I have heard the arguments of Ld. A.P.P for state and accused in person. I have also perused the record carefully.
PW1 HC Jitender has deposed that on 27.06.07 at the instruction of IO, he took sample bottle sealed with the seal of SS from MHC(M) to deposit the same in Excise Lab vide RC No. 111/21. This witness was not cross examined by the accused despite grant of opportunity.
PW2 HC Hari Prakash deposed that on 02.06.07 he was working as DD writer. He recorded the information vide DD No. 29B in Roznamcha register. The copy of the said DD entry is Ex.PW2/A. This witness has not been cross examined by the accused despite grant of opportunity.
PW3 HC Ajeet Singh has deposed that on 02.06.07 he was on patrolling duty at Lawrence Road, Delhi. At about 12.20 pm, when he reached near Railway Fatak, Lawrence Road, Industrial Area, he saw that a person already known as Dalip who was BC of the area FIR No.364/07 Page No.3/10 4 was coming from his opposite side towards JJ Cluster who was carrying one blue colour plastic cane on his shoulder. On seeing him, she turned back and started moving fast. On suspicion he was apprehended. The cane was checked by opening its lid and smell of alcohol was coming out from it. He gave information to police station. After sometime, HC Sajjan came at the spot. He handed over the custody of accused and cane to the IO. IO asked 45 persons to join the investigation but none agreed and left the spot. On the direction of IO, he got arranged an empty bucket and empty bottle of 750 ml. On measuring, the liquor was found to be equivalent to 20 bottles in the said 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 SS and same were taken in possession vide seizure memo Ex.PW3/A. Form M29 was filled up by IO. IO prepared rukka and sent him to PS for registration of case. After registration of the case, he came back at the spot alongwith original rukka and carbon copy of FIR. Accused was got personally searched vide memo Ex.PW3/D and was also arrested vide arrest memo Ex.PW3/C. The witness has not been cross examined by the accused despite grant of opportunity.
7. As per story of prosecution, after the alleged recovery of cane containing liquor, IO HC Sajjan Singh had asked 45 passersby to join the investigation but none agreed and left the spot without telling their names and addresses. At least in the facts and circumstances of the case, in my opinion IO HC Sajjan Singh could very well have served the passersby with notice in writing to join the police proceedings as there was no possibility of accused escaping his arrest or crime going undetected because by the said time accused stood already apprehended. The above referred mechanical excuse given by the prosecution for FIR No.364/07 Page No.4/10 5 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 Sajjan 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 Sajjan 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.
8. 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."
FIR No.364/07 Page No.5/10 6
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 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 FIR No.364/07 Page No.6/10 7 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 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 FIR No.364/07 Page No.7/10 8 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.
9. 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.
10. 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.
11. 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 FIR No.364/07 Page No.8/10 9 is not clear as to by what quantity possession of liquor with accused exceeded permissible limits.
12. 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) 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.
13. 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.
14. As per the case of the prosecution the case property was sealed with the seal of SS belonging to IO HC Sajjan Singh. 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 FIR No.364/07 Page No.9/10 10 sealed case property and accused were with the police officials till the time case property was deposited in Malkhana.
15. 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 02.06.07 and charge sheet was filed on 21.09.07. 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.
16. The chain of evidence against accused is not complete.
17. In view of aforesaid discussion, accused Dalip 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: 25.06.2011 Addl. Chief Metropolitan Magistrate1
Rohini, Delhi
FIR No.364/07 Page No.10/10