Delhi District Court
As Balraj Singh vs . State Of Punjab 1982 Cri.Lj 1374 ... on 11 March, 2013
IN THE COURT OF SHRI NARESH KUMAR LAKA
METROPOLITAN MAGISTRATE,
TIS HAZARI COURTS, DELHI
F.I.R. No.85/01
Police Station: Rajouri Garden
under Section 61/1/14 Excise Act
(a) Case ID Number : 02401R0202932002
(b) Date of commission of the : 29.01.2001
offence
(c) The name of the complainant : SI Naresh Kumar
(d) The name of the accused : Kuljeet Singh S/o
persons, their parentage and Narender Singh R/o
residence F244, Vikas Puri, New
Delhi
(e) The offence complained of or : Under Section 61/1/14
proved Excise Act
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Convicted.
(h) The date of such order : 11.03.2013
Challan was filed on :29.01.2002
Final arguments were advanced on:27.02.2013
Judgment is announced on:11.03.2013
FIR No. 85/01 PS Rajouri Garden Page # 1 of 9
JUDGMENT
Briefly stated, the facts of the case of prosecution are that on 29.01.01 at about 8 pm at in front of Kukreja Hospital, Main Najafgarh Road, Delhi, accused Kuljeet Singh was found in driving a Santro car bearing no. DL 4CM 4775 and on search it was found carrying 12 cartons of illicit liquor without any permit and license in contravention of provisions of Punjab Excise Act, 1914. After completion of investigation which includes seizure of case property and said car, arrest of accused, sending the samples of illicit liquor to Excise Laboratory, etc. the final report was filed alleging offence under Section 61(1) of the Punjab Excise Act, 1914 against the accused.
2. On the basis of the material on record, a charge for the offence under Section 61/1/14 Excise Act was framed against accused to which he pleaded not guilty and claimed trial.
DEPOSITION OF PROSECUTION'S WITNESSES
3. PW1 HC Jogender Singh deposed that on 29.01.2001, during patrolling duty along with SI Naresh Kumar at about 740 pm, IO SI Naresh Kumar received secret information regarding carrying of illicit liquor. On this information, IO SI Naresh requested 4/5 passerby to join the raiding party but none of them FIR No. 85/01 PS Rajouri Garden Page # 2 of 9 agreed and left the place without disclosing their names and addresses. In the mean time, HC Ram Avtar from EIB also came at the spot and he joined the raiding party. At about 08.00 PM, they noticed that one santro car bearing no. DL 4CM 4775(Cherry in colour) was coming from the side of Tilak Nagar. A signal was given to stop the vehicle. The vehicle was stopped and the same vehicle was driven by accused Kuljeet. The car was checked. 12 cartons of illicit liquor were found inside the car. Out of above mentioned 12 cartons, four cartons were bearing the label of Bagpiper, one carton of Director Special, three cartons were of SPM Whisky, one carton of White Hall whisky, one carton of Mcdowell and two cartons of Ocken glow whisky. The above mentioned 12 cartoons were given S. No. 1 to 12 respectively. Each above mentioned carton was having 12 bottles each of illicit liquor. One bottle from each above mentioned 12 cartons were separated for sample purposes and it were given serial no. 1A to 12A . Form M29 was filled at the spot. The samples bottles seized with the help of cloth and seal with the seal of 'NK' and remaining bottles kept back in their respective cartons and seized and seal with the seal of 'NK'. The samples bottles and case property were seized vide seizure memo Ex. PW1/A. Above mentioned car was also seized vide seizure memo already Ex. PW1/B. IO prepared rukka and the rukka was handed over to him for registration of FIR. He went to PS and got the FIR registered. After registration of the FIR, he alongwith second IO SI S.D. Mishra reached at the FIR No. 85/01 PS Rajouri Garden Page # 3 of 9 spot. IO handed over accused alongwith case property to the IO SI S.D. Mishra. Accused was arrested and his personal search was conducted.
4. PW2 Devinder Singh being the Duty Officer proved the FIR as Ex.PW2/A.
5. PW3 Inspector Naresh Khanka was examined in part and his further examination in chief was deferred for want of the case property. Thereafter, he was not further examined in chief. Hence, his examination cannot be read in evidence.
6. PW4 ASI Ram Avtar Sharma deposed that on 29.01.2001, he was posted at Excise Department, ITO, Delhi as HC. On that day, he was on patrolling duty and at about 07.40 PM, he reached at Kukreja Nursing Home, Najafgarh Road and received a secret information regarding illicit liquor carrying in a Santro Car bearing no. DL 4CM 4775 would come from the side of Tilak Nagar and go towards Moti Nagar having illicit liquor. Meanwhile SI Naresh Kumar and HC Joginder Singh from PS Rajouri Garden alongwith one secret informer met him. PW4 corroborated the statement of PW1. PW4 further stated that the accused was arrested and his personal search was conducted vide personal search memo Ex. PW4/A. IO recorded his statement and he was relieved from the spot.
FIR No. 85/01 PS Rajouri Garden Page # 4 of 9 DEFENCE OF THE ACCUSED
7. In the statement recorded under section 313 Cr.P.C., accused took the defence that he was falsely implicated in this case by taking him from his house.
8. I have heard Assistant Public Prosecutor for the State and the counsel for the accused. File perused.
APPRECIATION OF EVIDENCE AND REASONS FOR DECISION
9. The prosecution cited total 7 witnesses. Out of which, it examined four. The case was very old pertaining to the year 2001 and a letter was received from the High Court of Delhi enclosing the views of the Hon'ble Chief Justice of India to achieve the target of zero level pendency of the cases which are more than 5 years old. Accordingly the prosecution's evidence was closed.
10. PW3 was examined in chief and his further cross examination was deferred for want of case property. Thereafter, the prosecution's evidence was closed. Thus it shows that the accused was not given an opportunity to cross examine the PW3. As such, the evidence of PW3 cannot be read in evidence.
FIR No. 85/01 PS Rajouri Garden Page # 5 of 9
11. The PW1 HC Joginder Singh as well as PW4 ASI Ram Avtar categorically deposed that on the day of incident on a secret information, a nakabandi was held and the accused was apprehended while driving a Santro Car and on search of the said Car, 12 petis/cartoons of illicit liquor were recovered. The accused was apprehended on the spot itself and the above said illicit liquor and the car were seized. Despite giving opportunity, the counsel for the accused did not at all cross examine the PW1. In the cross examination of PW4, nothing contrary came on record to disbelieve his statement.
12. Ld. Counsel for the accused argued that prosecution did not prove the case property as the cartons were produced in broken condition with unsealed seal in the court. On the other hand, Ld. APP pointed out that the case property is duly proved as a DD entry (mark A) was also proved on record which endorses the fact of breaking of seal in handling. No doubt, the case property was produced in unsealed condition in the court but the prosecution also filed copy of DD entry as regards breaking of seal. At the time of production of the case property, no objection was raised by the counsel for the accused raising any doubt about the upkeep or proving of case property and as such, keeping in view the DD entry, nonraising of any objection and keeping in view the normal circumstances prevailing at the police station FIR No. 85/01 PS Rajouri Garden Page # 6 of 9 and the respective changes on account of climate condition, I am of the opinion that the prosecution duly proved the case property. In this regard, I also rely on the case cited by Ld. APP for the State as Balraj Singh Vs. State of Punjab 1982 Cri.LJ 1374 wherein it was held that "It is the actual possession of the contraband property by the accused at the material time which is the crucial issue to be established. The production of the case property later in court is only a corroborative piece of evidence"
13. Ld. Counsel for the accused has further argued that the prosecution did not examine IO of the present case and, as such, the case remains unproved. As per the general principles of criminal jurisprudence, a charge can be proved through a sole eye witness if the testimony of said witness is convincing and beyond any shadow of doubt. In the instant case, PW1 and PW4 gave very corroborative and concrete evidence and, as such, in my opinion the nonexamination of the IO is not fatal to the case of the prosecution. In this regard, I further rely upon the case titled as Ram Gulam Chaudhary and Ors Vs. State of Bihar, AIR2001SC2842 cited by Ld. APP for the State wherein it was held that "In the case of Behari Prasad Vs. MANU/SC/0752/1996 : State of Bihar reported in 1996 CriLJ1653, this Court has held that for non examination of the Investigating Officer the prosecution case need not fail. This Court has held that it would not be correct to contend that if the investigating officer is not examined, the entire FIR No. 85/01 PS Rajouri Garden Page # 7 of 9 case would fail to the ground as the accused were deprived of the opportunity to effectively crossexamine the witnesses and bring out contradictions. It was held that the case of prejudice likely to be suffered must depend upon facts of each case and no universal straitjacket formula should be laid down that nonexamination of Investigating Officer per se vitiate the criminal trial."
14. Ld. Counsel for the accused further argued that no independent public witness was joined in the investigation. No doubt, the Section 104(3) Cr.P.C. enjoins upon I.O. a duty to join independent respectable persons of the locality as witnesses at the time of search, yet it is the settled proposition of law that the case of the prosecution cannot be thrown out on account of non compliance of such provision. It is also held in many cases by the Hon'ble Apex Court that prevailing circumstances of the relevant time are also required to be seen on the point of joining of public persons. Nowadays, in a busy city like Delhi, it is the general phenomenon that hardly any person agrees to become a witness to the police cases. Nobody feels free to spare even smallest span of time at the time of investigation or trial. No doubt the area where illicit liquor was recovered was a residential one, but the court is also not oblivious of the fact that no neighbour likes to become a witness of the misdeed of his neighbour to avoid subsequent enmity or confrontation. Keeping in view the evidence on record, huge quantity of illicit liquor and the FIR No. 85/01 PS Rajouri Garden Page # 8 of 9 prevailing circumstances, I am of the opinion that nonjoining of public persons as witnesses to the recovery of illicit liquor, the case of the prosecution cannot be disbelieved when the case of the prosecution is otherwise provable. The Ld. APP for the State also relied upon the case titled as Shashi Shekhar @ Neeraj @ Raju Vs. State" Criminal Appeal No. 473 of 2004 and pointed out the very observations in that case in the form "Just because the recovery witnesses were police officials, it cannot be said that the evidence lacks independent character ."
15. Keeping in view the above facts and circumstances of the case, I hold that the prosecution succeeded in proving the essential ingredients of the offence under Section 61 of Punjab Excise Act. The accused is accordingly convicted for the said offence.
Announced in the open court on 11.03.2013 (Naresh Kumar Laka) Metropolitan Magistrate(West) Tis Hazari Courts, Delhi FIR No. 85/01 PS Rajouri Garden Page # 9 of 9