Delhi District Court
State vs Samita on 19 January, 2012
IN THE COURT OF MS. SHUCHI LALER METROPOLITAN
MAGISTRATE - 04 : EAST: KARKARDOOMA COURT : DELHI.
FIR No.267/06
U/s 61 Punjab
Excise Act
PS Vivek Vihar
STATE Vs SAMITA
JUDGMENT:
A Sr. No. of the case 02402R0 01484 2007 B Date of institution 22/12/2006 C Date of commission of 22/06/2006 offence D Name of the complainant Ct. Israil Khan E Name of the accused & Samita, w/o Sh. Darshan Singh, r/o H. No. his parentage and address 4/31/A, New Vishwas Nagar, Delhi. F Offence complained of U/s 61 Punjab Excise Act G Plea of the accused Pleaded not guilty H Order Reserved on 19/01/12 I Final order Acquitted J Date of such order 19/01/12 BRIEF FACTS AND REASONS FOR DECISION
1) The prosecution case, in brief, is that on 22.06.2006 at about 06.25 PM at DDA Flats, Jhilmil Chowk, in front of Shivam Enclave, Delhi, the accused Samita was found in possession of 7.5 litres of country made liquor without any valid permit or license. After investigation, challan was filed by the FIR No. 267/06, PS: Vivek Vihar State Vs. Samita Page No... 1/7 police.
2) Complete set of copies was supplied to the accused and after hearing arguments, vide order dated 14.02.08 charge for offence punishable u/s 61 Punjab Excise Act was framed against the accused by the Ld. Predecessor to which the accused pleaded not guilty and claimed trial.
3) Prosecution in support of present case examined the following five witnesses.
DO ASI Kamta Prashad appeared as PW1 who proved the present FIR, Ex.PW1/A and endorsement on the rukka Ex.PW1/B. Ct. Prembir appeared as PW2 who deposed that on 30.06.06, he had taken one quarter bottle sample bottle sealed with the seal of SSR with Excise Form from Malkhana to Excise Lab vide RC No.49/21 and receipt of the same was handed over to the MHC(M). In his cross examination, PW2 denied the suggestion that he had not taken any sample quarter bottle to the Excise Office.
Ct. Israil appeared as PW3 who deposed that on 22.06.2006, he was on patrolling duty and at about 06:25 PM, when he was present in front of DDA Flats, Jhilmil Colony, Shivam Enclave, he saw a lady coming from the side of Anand Vihar having a plastic can in her right hand. On seeing him, FIR No. 267/06, PS: Vivek Vihar State Vs. Samita Page No... 2/7 she turned back with fast speed. On suspicion, she was chased and apprehended. On enquiry, she disclosed her name as Samita. Can was checked and smell of liquor was coming from the can. PW3 informed the PS and from there at about 06:40 PM, IO HC Satyavir Singh along with L/Ct. Shashi Mala came at the spot and PW3 handed over the accused along with the recovered can to the IO. IO recorded the statement of PW3, which is Ex.PW3/A. IO requested some passers by to join the proceedings, but none agreed. IO measured the liquor with the help of bucket, mug, bottle and quarter bottle which came to be 9 bottles. Thereafter, IO took out one quarter bottle liquor as sample from can and can and sample was sealed with the seal of SSR and form M29 was filled and after use, the seal was handed over to PW3. PW3 proved seizure memo Ex.PW3/B, arrest memo Ex.PW3/C and personal search memo Ex.PW3/D. PW3 correctly identified the accused.
L/Ct. Shashi Mala appeared as PW4 who deposed that on 22.06.06, on receipt of DD No.22A, she went to DD Flat Chowk, Shivam Enclave and conducted the personal search of the accused vide memo Ex.PW3/D. PW4 also proved the seizure memo Ex.PW3/B, arrest memo Ex.PW3/C and proved the case property i.e. Ex.P1. PW4 correctly identified the accused. FIR No. 267/06, PS: Vivek Vihar State Vs. Samita Page No... 3/7 In her cross examination, PW4 denied the suggestion that she did not join the proceedings of the present case and all the writing work was done while sitting in the PS. HC Satyavir Singh appeared as PW5 who deposed that on 22.06.2006, on receiving of DD No.22A, he along with L/Ct. Shashi Mala reached at DDA Flats, Shivam Enclave, Delhi, where Ct. Israil Khan met them and handed over the accused Samita along with recovered 10 litres plastic can of liquor to PW5. PW5 recorded the statement of Ct. Israil Ex.PW3/A. PW5 requested some passers by to join the proceedings, but none agreed. PW5 measured the liquor with the help of bucket, mug and bottle, which came to be 9 bottles. Thereafter, PW5 took out one quarter bottle liquor as sample from the can and the can and the sample was sealed with the seal of SSR and form M29 was filled. PW5 proved the seizure memo Ex.PW3/B, rukka Ex.PW5/A, site plan Ex.PW5/B, arrest memo Ex.PW3/C and personal search memo Ex.PW3/D and also proved the case property Ex.P1. PW5 correctly identified the accused. In his cross examination, PW5 stated that he did not give any notice to the passer bys who declined to join the proceedings and there was abadi near the spot, but nobody was called from there. PW5 denied the suggestion that all the FIR No. 267/06, PS: Vivek Vihar State Vs. Samita Page No... 4/7 proceedings were done while sitting at PS and the liquor was planted upon the accused and the accused has been falsely implicated in the present case.
4) Statement of accused was recorded wherein she pleaded innocence and false implication in this case, however, she did not wish to examine any witness in support of her defence.
5) I have heard the Ld. APP for State and Ld. Defence Counsel and have perused the record.
6) To prove the charge U/S 61 Punjab Excise Act, the prosecution has to prove that the accused was found in possession of plastic can containing 7.5 litres of illicit liquor, without any valid permit or license. First of all, no public witness has been joined by the IO in the present case despite availability. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completion of formalities at the spot but none of the public witness has been joined in the investigation. The explanation given by the prosecution in this regard is that the public persons had refused to join the investigation. In Roop Chand Vs. State of Haryana, 1990(1) CLR 69, it has been observed that such explanations that the public persons refused to join the proceedings are unreliable and in Pardeep Narayan Vs. State of Maharashtra, AIR 1995 SC 1930, it has been held that failure of police to FIR No. 267/06, PS: Vivek Vihar State Vs. Samita Page No... 5/7 join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused.
7) It is a settled proposition of law that Subsection 4 to Sec. 100 of Cr.P.C. is a directory provision however, the explanation of nonjoining of independent witness should also be plausible. The explanation put forth by the prosecution for nonjoining of independent witness appears to be implausible for the reason that no notice whatsoever, was given to the persons refusing to join the investigation. The same creates doubt regarding the fairness of the investigation.
8) It is also noteworthy that most crucial part of the investigation has been conducted even prior to the registration of present FIR. PW5 has deposed that he took out one quarter bottle liquor from can as sample and the sample was sealed with the seal of SSR and prepared the seizure memo Ex.PW3/B. IO prepared the rukka which he handed over to PW3 Ct. Israil for the registration of the case. The record reveals that FIR number finds mention on the seizure memo Ex.PW3/B. Admittedly, the Seizure memo was prepared before registration of FIR. When documents are prepared before registration of FIR and it contain the FIR number, the inference has to be drawn either FIR was recorded prior in time or the documents were prepared FIR No. 267/06, PS: Vivek Vihar State Vs. Samita Page No... 6/7 later on and in such case, benefit of doubt has to be given to the accused.
9) Further, no efforts whatsoever have been made by the prosecution to collect any clue about the source from where illicit liquor was arranged for by the accused. At least, some efforts must have been made by the police to interrogate the accused and conduct the requisite investigation to know as to from where the accused arranged the illicit liquor.
10)It is also worth mentioning that as per the case of the prosecution PW3 was on patrolling duty at the time of incident. However, no DD entry in support of this fact has been placed on record. This further raises doubts about the prosecution story.
11) In view of the foregoing reasons, I am of the opinion that the prosecution has failed to prove its case against the accused, beyond reasonable doubt. Accordingly, I acquit the accused Samita for the offence punishable U/S 61 Punjab Excise Act in FIR No.267/06 PS Vivek Vihar. Case property be confiscated to the State, as per rules. Bail Bond of accused shall remain in force and surety of the accused shall not be discharged for a period of six months in view of section 437A Cr.P.C. File be consigned to Record Room.
Announced in the open court (SHUCHI LALER) today itself. MM/EAST/KKD/19.01.2012. FIR No. 267/06, PS: Vivek Vihar State Vs. Samita Page No... 7/7