Delhi District Court
State vs . : Nand Lal on 27 September, 2013
IN THE COURT OF SH. CHANDER JIT SINGH: MM (N) : ROHINI COURT : DELHI
State Vs. : Nand Lal
FIR No : 293/2006
U/s : 61/1/14 of Punjab Excise Act
PS : SP Badli
JUDGMENT
A. Sl. no. of the case 117/3
B. Offence complained of
or proved U/s 61/1/14 of Punjab Excise Act
C. Date of Offence 17.04.2006
D. Name of the complainant Ct. Narender Singh
E. Name of the accused Nand Lal
S/o Sh. Sharan
R/o J-208, Gali No.9, Sanjay Colony,
Samaypur Badli, Delhi.
F. Plea of the accused Pleaded not guilty.
G. Final order Acquitted
H. Date of Order 27.09.2013
Brief reasons for decision:
1. The accused has been forwarded by the police to face trial on the allegations of
FIR No. 293/06 State Vs. Nand Lal 1/6
commission of offence under Section 61/1/14 of Punjab Excise Act. Briefly case of the
prosecution is that on 17.04.2006, Ct. Mahesh with Ct. Narender were on patrolling duty on motorcycle and were reached in front of Badli Railway Station, Bawana Road and at about 11:00 PM, they noticed a boy was coming on scooter bearing registration No. DL 7SK 0258 make Bajaj Chetak from the side of Bawana. The said boy stopped his scooter in front of railway station near Suraj Pal Jhuggies as soon as he saw police party. Four petties were kept in front side of the scooter at footrest. On suspicion, Ct. Narender checked the same and found it to contain quarter bottles of Bonnie Scotch. Ct. Narender gave information to PS. The name of that boy was learnt to be Nand Lal. Upon information, IO HC Balwan SIngh alongwith Ct. Krishan Pal reached the spot. Ct. Narender handed over the accused and the case property to the IO. 4/5 persons were asked to join the investigation but they left showing their helplessness. Four petties were checked and each petty was found to contain 48 quarter bottles of countrymade liquor. One quarter bottle was kept out as sample from each petty and was sealed with the seal of BSD. The remaining 47 quarter bottles from each petty were kept back in the said petties and were given Sr. No.1 to 4 and sealed with the seal of BSD. Seal after use was given to Ct. Krishan Pal. Form M-29 was filled up at the spot. Rukka was sent and present FIR was registered. Site plan was prepared. Sample bottles and the form and the scooter were seized. Samples were deposited in Excise office. On completion of investigation, charge sheet was laid.
2. After procuring the presence of accused and supplying him the copies of chargesheet alongwith annexing documents, charge under Section 61 Punjab Excise Act was framed by me against him and explained to him in simple language to which, he pleaded not FIR No. 293/06 State Vs. Nand Lal 2/6 guilty and claimed trial. Thus, the case was fixed for prosecution evidence.
3. To prove its case, prosecution has examined five witnesses.
HC Krishan Pal was examined as PW-1, who proved the proceedings carried out during the investigation from seeing the accused till his arrest. He proved seizure of scooter as Ex.PW1/A, arrest memo of accused as Ex.PW1/B, personal search memo of accused as Ex.PW1/C and case property i.e. four patties sealed with the seal of BSD, each petty contain 47 quarter bottles and are collectively Ex.P-1. This witness was examined in part and his further examination was deferred due to want of scooter. But this witness was not summoned again.
ASI Chand Praksh was examined as PW-2 who proved the registration of FIR as Ex.PW2/A and endorsement on the same as Ex.PW2/B. This witness was not cross- examined by Ld. Defence counsel after being granted an opportunity in this regard.
Ct. Mahesh was examined as PW-3. He proved the proceedings carried out during the investigation from seeing the accused till his arrest. He proved seizure memo of liquor, arrest memo and personal search memo of accused which are already exhibited in the testimony of PW-1. The case property was reported to have destroyed vide DD entry which is Mark A. The witness was duly cross examined.
Ct. Narender Singh was examined as PW-4. He reiterated the facts on the lines of PW-1 & PW-3 and among other documents already exhibited, proved his statement Ex.PW4/A. This witness was duly cross-examined.
Ct. Shamsher Singh was examined as PW-5. He stated that he collected FIR No. 293/06 State Vs. Nand Lal 3/6 samples with the seal of BS and form M-29 from the MHC(M) and on the instructions of IO vide RC No.115/21/06 deposited the same in the Excise office and handed over the receipt of RC to MHC(M). This witness was not cross-examined despite opportunity.
No other witnesses were examined by the prosecution.
4. After conclusion of evidence, statement of accused is recorded under Section 313 Cr. PC wherein accused pleaded innocence and stated that he has been falsely implicated in the case but chose not to lead any DE.
5. I have heard the rival contentions of both the parties and carefully perused the record.
6. In the present case, though matter is of a chance recovery yet the area of recovery is shown to be residential area where it is of very high probability that public witnesses could be found, however, no public person has been joined in the investigation. Evidence in the shape of testimony imply that passersby were going on the road. The investigating officer has not joined any independent public witness despite availability. Stereo typed version churned by the police officials does not inspire confidence. It casts doubt over the sincere efforts made by the investigating officer to join independent witnesses. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, it has been held that such casual explanations that the public persons refused to join the proceedings are unreliable. Similarly, in Pradeep Narayan Vs. State of Maharashtra reported in AIR 1995 S.C. 1930, it has been FIR No. 293/06 State Vs. Nand Lal 4/6 observed that failure of police to join witness from locality during search creates doubt about fairness of the investigation and the benefit of the same has to be given to the accused.
7. In this case, the usage of seal after sealing the case property was given to Ct. Krishan Pal and seal was not handed over to an independent person. It follows that the seal remained with the police officials. In view of the fact that case property or its sample was not produced in court, it cannot be ruled out that case property might have been tempered. Further, admittedly IO HC Balwan Singh did not inform the SHO, rather he proceeded to conduct the investigation of his own. There is nothing to show that he had no opportunity to inform his seniors, but he chose not do so.
8. Further, in order to prove the commission of offence under Section 61/1/14 Excise Act, the possession of liquor is the first ingredient. In the present case, IO has stated that accused was apprehended by them and recovery was also effected by them. It is a cardinal principle to criminal jurisprudence that prosecution has proved its case beyond reasonable doubt to bring home the guilt of accused. No witness has been joined to participate in the investigation whereas in the site plan produced on record, residential houses have been shows to exist nearby. Though, the joining of public witnesses in not a condition for proving the guilt of accused but it brings the credibility into the investigation and therefore, absence of public witnesses in the raiding raises doubt upon the credibility of investigating team.
Further, the case property was not produced in the court as the same has been destroyed. In these circumstances, it is very difficult to connect the accused with the case property as according to prosecution version, the case property was seized and was sealed FIR No. 293/06 State Vs. Nand Lal 5/6 with the seal of 'BSD'. All these circumstances, accumulatively make the story of prosecution doubtful. Therefore, extending the benefit of doubt, accused Nand Lal is acquitted of the offence under Section 61/1/14 of Punjab Excise Act.
Announced in open Court (Chander Jit Singh)
on 27.09.2013 Metropolitan Magistrate (North)
Rohini Courts, Delhi
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