Delhi District Court
State vs . Rani on 13 February, 2013
IN THE COURT OF SH. DEVENDER NAIN
METROPOLITAN MAGISTRATE: WEST05, DELHI
FIR No. 244/2007
Case ID: R1485472007
State Vs. Rani
PS Tilak Nagar
U/s 61/1/14 Excise Act
Date of Institution of case : 27.08.2007
Date of Judgment : 13.02.2013
JUDGMENT:
a) Date of offence : 30.03.2007 b) Offence complained of : 61/1/14 Excise Act c) Name of Accused, his : Rani, parentage & residence W/o Sh. Mangal, R/o A823, JJ Colony, Khyala, Delhi d) Plea of Accused : Plead not guilty FIR No. 244/07 1 of 18 PS Tilak Nagar e) Final order : Acquitted
BRIEF FACTS AND REASONS FOR DECISION:
Case of the prosecution in brief is as follows:
1. That on 30.03.07 at about 6.20 pm at main Khyala Road, near Subji Mandi, Khyala, New Delhi within the jurisdiction of PS Tilak Nagar accused was found in possession of one plastic can containing country made liquor equivalent to 12 bottles of 750 ml each without any permit or license for the same and thereby committed an offence punishable u/s 61/1/14 Excise Act.
2. Court took cognizance of the abovesaid offences and the charge against accused was framed on 03.06.08 and a prima facie case was made out against the accused and charge was accordingly framed against accused for offence punishable u/s 61/1/14 Excise Act to which accused pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined 04 witnesses.
FIR No. 244/07 2 of 18 PS Tilak Nagar
4. PW1 is HC Mahinder Prakash who deposed that on 30.03.07 he was posted at PP Khyala and on that day, he received an information vide DD No. 20 that Const. Sanjay had apprehended the accused Rani with illicit liquor at Main Khyala Road near Subzi Mandi Khyala and thereafter PW1 went to the spot and Const. Sanjay handed over the accused and a white plastic can containing illicit liquor to him and PW1 requested some passersby to join the investigation but none agreed and thereafter he recorded the statement of Const. Sanjay and Const. Sanjay brought a plastic bucket, mug and a plastic bottle of 750 ml from a nearby a kabari shop and PW1 measured the illicit liquor with an empty bottle of 750 ml which was found equivalent to 12 bottles of 750 ml each and out of them one bottle was taken as sample and the remaining was poured into the can again and thereafter he sealed them vide seizure memo Ex.PW1/A with the seal of "MP" and form M29 was filled up and the impression of seal was put on it and the seal after use was handed over to Const. Sanjay and thereafter PW1 prepared a rukka and handed over the same to Const. Sanjay who accordingly went to PS and got the FIR registered and came back with a carbon copy of FIR and original rukka and thereafter PW1 prepared the site plan at the instance of Const. Sanjay and PW1 arrested the accused and the accused was FIR No. 244/07 3 of 18 PS Tilak Nagar released on bail at the spot. PW1 further deposed that he alongwith Const. Sanjay went to PS Tilak Nagar and deposited the case property, sample and form M29 in malkhana. He further deposed that on 14.04.07, upon his instructions, Const. Sanjay went to Excise Office and deposited the sample for examination.
5. PW2 is HC Kailash Chand who deposed that on 30.03.07 he was posted at PS Tilak Nagar, Delhi as Duty officer who received the rukka sent through Const. Sanjay Kumar and on the basis of the same, registered present FIR.
6. PW3 is HC Janak Raj (MHCM) who brought the register No. 19 pertaining to the relevant entry and year.
7. PW4 is HC Sanjay Kumar who deposed that on 30.03.07 he was posted at PP Khyala PS Tilak Nagar as Const. and on that day he was on patrolling duty and during patrolling at about 6.20 pm he was present at Khyala Subji Mandi, Main Khyala Road where he saw the accused Rani who was BC of PS Tilak Nagar coming from Khyala Village side carrying a plastic can in her right hand and upon seeing him FIR No. 244/07 4 of 18 PS Tilak Nagar she turned about and tried to slip away and he got suspicious and after running 810 steps he made her stop and he made her put the can on the ground and checked the can after opening its mouth and the same found liquid smelling of liquor and he forwarded the information to PP Khyala. PW4 further deposed that HC Mahender Prakash reached at the spot and PW4 produced the lady, i.e., Rani and the plastic can to the IO HC Mahender Prakash and IO recorded his statement and requested some passersby to join the investigation but none agreed and IO directed him to bring a bucket, mug and a bottle of 750 ml and he did the same and IO measured the quantity of liquor in can and found the same equivalent to 12 bottles of 750 ml each and IO kept one bottle of liquor as sample and poured the remaining liquor in the same can and IO sealed the can as well as the sample bottle with seal of "MP" and filled form M29 and seal after use was handed over to PW4 and IO took into possession the case property and sample and prepared rukka and handed over the same to PW4 for registration of FIR who accordingly got the FIR No. 244/07 registered at PS Tilak Nagar and came back at the spot and handed over the original rukka and copy of FIR to the IO and IO prepared site plan at the instance of PW4 and arrested the accused and accused was released on bail and case property was deposited into malkhana. PW4 further FIR No. 244/07 5 of 18 PS Tilak Nagar deposed that on 23.04.07 on the instructions of the IO he collected the sample from MHCM and deposited the same in excise lab vide RC No. 71/21/07 against acknowledgment and acknowledgment was handed over to MHCM and so far the sample remained with him, they were not tampered with.
At the time of cross examination, PW4 admitted that the place of occurrence was surrounded by residential area and that no written notice was served to the public persons who refused to join the investigation and that no lady police was joined in the investigation.
8. On 13.02.13, statement of accused person was recorded and all the incriminating evidence was put to the accused person u/s 281 CrPC in which accused person denied all the allegations made against her. Accused person choose not to lead any defence evidence.
9. At the time of final arguments it is submitted by Ld. APP for the State that his case is proved beyond reasonable doubts and all the contents of the section are completed under which the present charge is framed. In reply to this, it is argued on behalf of the accused that no public persons examined on behalf of the prosecution despite availing of FIR No. 244/07 6 of 18 PS Tilak Nagar ample and effective opportunities which creates reasonable doubt over the prosecution version and all the witnesses are police witnesses and no action has been taken against the public persons who refused to join the investigation and no lady police has been joined in the investigation. It is further argued on behalf of accused that no efforts were made to hand over the seal after use to independent public person and there was delay in sending the samples to Excise Office. Further the seizure memo bears the FIR particulars which was prepared before the FIR and the same has not been explained.
10. The manner in which the inquiry and search etc. was stated to be conducted at the spot at the time of arrest of the Accused is doubtful. Inspector fails to give reasonable excuse as to why the other shopkeepers or passersby were not asked to join the police proceedings with notice in writing or why he fails to take legal action u/s 187 IPC on such failure. It appears that no serious attempt was made by the Inspector at the time of arrest of Accused to join the shopkeepers or passersby in the police proceedings. This failure on the part of prosecution creates reasonable doubts in the prosecution story. In this regard reliance may be placed on the following case laws: FIR No. 244/07 7 of 18 PS Tilak Nagar The Apex Court in Dudh Nath Vs. State of U.P., 1981 CRI. L.J. 618, has held that :
"Evidence of recovery of the pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon wielded it in offence. The statement accompanying the discovery is woefully vague to identify the authorship of concealment, with the result that the pointing out of the weapon may at best prove the appellant's knowledge as to where the weapon was kept."
The Hon'ble Delhi High Court in Vijay Kumar Vs. State, 1996, CRI. L.J. 2429, held that:
"42. As far as recovery of a piece of hockey from the room of the appellant, Vijay, is concerned, the said piece of hockey was not lying hidden anywhere. A FIR No. 244/07 8 of 18 PS Tilak Nagar casual search of the room by the police, would have yielded the said piece of hockey. Section 27 of the Evidence Act could make such disclosure statement of the accused in custody admissible which leads to discovery of a material fact but if a material fact is selfevident to the police, the disclosure statement of the accused of such material fact becomes inadmissible. In case a particular material fact is in exclusive knowledge of the accused and he makes a disclosure statement pertaining to the same which leads to recovery of such material fact, then and then only such disclosure statement of the accused is admissible in evidence. So, this recovery of piece of hockey cannot be linked to the accused Vijay in view of the above reasons. Moreover, Premwati had stated in Court that Vijay had thrown away the second FIR No. 244/07 9 of 18 PS Tilak Nagar piece of hockey outside his house. If that is so, the disclosure statement of the appellant, Vijay, becomes all the more doubtful."
In a case law reported as Anoop Joshi Vs. State 1999(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 FIR No. 244/07 10 of 18 PS Tilak Nagar 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 Vs. The State of Haryana 1999 (1) CLR 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 prosecution 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 FIR No. 244/07 11 of 18 PS Tilak Nagar 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 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 officer conducting investigation of a crime is entitled FIR No. 244/07 12 of 18 PS Tilak Nagar 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 non joining 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 Vs. State of Punjab, 1997 (3) Crimes 55, 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 FIR No. 244/07 13 of 18 PS Tilak Nagar reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably 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 FIR No. 244/07 14 of 18 PS Tilak Nagar 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."
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is submitted as under: "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, FIR No. 244/07 15 of 18 PS Tilak Nagar cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
11. The manner in which the search of the Accused was conducted on the spot is also not satisfactory as the police persons had not offered their own search to the Accused before taking the search of Accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty Vs. State of Orissa, wherein it was held as under:
"10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching officer and other assisting him should give their personal search to the accused before searching the person of the accused. (See ARI 1969 SC 53:(1969 Cri L.J.
279), State of Bihar Vs. Kapil Singh). This rule FIR No. 244/07 16 of 18 PS Tilak Nagar is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
Being guided by abovesaid case law, it can be said that search of the Accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal.
FIR No. 244/07 17 of 18 PS Tilak Nagar
12. In view of the aforesaid discussion, in my considered opinion, prosecution has not been able to prove its case against the accused person beyond reasonable doubts. Accordingly, accused person is acquitted to the charge levelled against her. Bail bond stands cancelled and surety be discharged, if any. Original documents, if any be returned to the rightful person against receiving and after cancellation of endorsement, if any. Case property be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to the Record Room after due compliance.
Announced in the Open Court (DEVENDER NAIN) on 13th day of February, 2013 MM(WEST05):DELHI FIR No. 244/07 18 of 18 PS Tilak Nagar