Delhi District Court
Case Of "Sadhu Singh vs State Of Punjab" 1997(3) Crime 55 By The ... on 1 December, 2018
IN THE COURT OF MS. DEEPIKA SINGH,
METROPOLITAN MAGISTRATE-06, WEST, TIS HAZARI COURT
State v. Azad Rathee
FIR No. 93/13
PS Mundka
U/s 33/38 of the Delhi Excise Act
JUDGMENT
Case No. : 74596/16
Date of Institution : 07.05.2016
Date of Commission of Offence : 08.05.2013
Name of the complainant : Ct. Pardeep
Name & address of the accused : 1. Azad Rathee
S/o Sh. Attar Singh
R/o Vill+P.O. Parnala,
Near Badi Copal, PS Bahadurgarh,
Distt. Jhajjar, Haryana
2. Om Prakash,
S/o Sh. Jai Bhagwan
R/o B-32, Prem Nagar-I,
Kirari, Suleman Nagar, Delhi
(accused has already been declared as
absconder)
Offence complained of : U/s 33/38/52.2 of the Delhi Excise Act
& Sec. 174A IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted U/s 33/38 of Delhi
Excise Act
Date of announcing of judgment : 01.12.2018
State v. Azad Rathee & Ors. U/s 33/38/52.2 of the Delhi Excise Act & Sec. 174A IPC 1/9
FIR No. 93/13 PS Mundka
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section 33/38 of the Delhi Excise Act, 2009.
2. The briefly stated story of the prosecution is that on 08.05.2013 at about 4.30 am, at Main Rohtak Road, Near Last Metro Pillar, Mundka, Delhi, accused Azad Rathi was found in possession of illicit liquor in the vehicle bearing no. DL-4CR- 6823, as per seizure memo, which were seized without any permit or licence . Thus the accused is alleged to have committed an offence under Section 33/38 of the Delhi Excise Act, 2009. FIR was lodged on the basis of rukka and investigation was carried out.
3. Charge sheet was filed against the accused Azad Rathi in the court. Copy of charge-sheet and other relevant documents were supplied to the accused Azad Rathi. Charge under Section 33 of the Delhi Excise Act was framed against the accused Azad Rathi vide order dated 14.12.2016, to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused Azad Rathi, the prosecution has examined two witnesses.
5. PW-1 HC Pardeep deposed that on 08.05.2013, at about 4.00 am, he along with Praful were present in the area of Mundka and second information was passed that one Santro Car No. DL-4CR-6823 coming from the side of Bahadurgarh on which there is illicit liquor. Thereafter, he informed regarding State v. Azad Rathee & Ors. U/s 33/38/52.2 of the Delhi Excise Act & Sec. 174A IPC 2/9 FIR No. 93/13 PS Mundka information to his superior W/SI Vandana Rao and thereafter she same at the spot. 4-5 public persons were asked to join the raiding party. But they refused to disclose their names and addresses. Thereafter, they organized the raiding party and and put namabandi in front of PS Mundka. At about 4.30 am, one Santro Car bearing DL-4CR-6823 came from the side of Bahadurgarh. They made an indication to stop the car but the car was not stopped. They chased the car by the motorcycle and they managed to stop the car near last Metro Pillar of Mundka. The car was being driven by the accused Azad Rathi present in the court that day (correctly identified by him). The police official came from the PS Mundka. Car was checked and found 19 gatta petties of liquor and quarter bottles were lying in loose inside the car. Gatta petties were checked and each petti containing 50 quarter bottle of liquor. The quarter bottles were lying scattered in the car were counted and they found and 350 quarter bottles of Desi Asli Santra, 140 quarter bottles of Green Whiskey and one petty containing 24 quarter bottles of episode were lying in the car. One quarter bottle was taken out as sample from each of the petties and one quarter bottle were taken out as sample from each of the brand of liquor lying scattered in the car. All the petties and loose bottles kept in separate kattas i.e. total 25 kattas. All the kattas and quarter sample bottles were duly sealed with the seal of AK. Form M-29 was filled at the spot. Seal after use was handed over to Ct. Subhash who came at the spot along with the accused IO. The liquor was taken State v. Azad Rathee & Ors. U/s 33/38/52.2 of the Delhi Excise Act & Sec. 174A IPC 3/9 FIR No. 93/13 PS Mundka into possession vide seizure memo now Ex.PW1/A singed by him at point-A. Santro car was taken into possession vide memo Ex.PW1/B signed by him at point-A. IO recorded his statement Ex.PW1/C signed by him at point-A and B. IO prepared the rukka and handed over the same to Ct. Subhash for registration of FIR. He went to PS along with the copy of rukka and after registration of FIR, he came at the spot along with the copy of rukka and handed over to the IO. IO prepared the site plan at his instance Ex.PW1/D signed by him at point-A. Accused was arrested vide arrest memo Ex.PW1/E and his personal search was taken vide memo Ex.PW1/F signed by him at point-a. His statement was recorded by the IO. Thereafter, MHC(M) had produced the case property i.e. total 25 kattas duly sealed with the seal of AK containing gatta petties and loose bottles. Some of the kattas and gatta petties were found torn and some quarter bottles found empty. All the petties and bottles are collectively Ex.P-1. I can identify a Santro Car if shown to me. Thereafter, MHC(M) had not produced the Santro Car and stated that the same was not running condition and lying in the PS. He produced one photograph of Santro car of white colour bearing no. DL-4CR-6823 and the same identified by the witness. Photograph is Ex.P-2.
6. During cross examination, witness admitted that they proceeded from the PS at about 5.15 pm. It was correct that no written notice was given to the public persons who refused to join the proceeding. It was correct that the no memo of State v. Azad Rathee & Ors. U/s 33/38/52.2 of the Delhi Excise Act & Sec. 174A IPC 4/9 FIR No. 93/13 PS Mundka handing over of seal was prepared. IO did not ask any of the shopkeeper to join the proceeding. He denied the suggestion that no recovery was effected from the accused and he was deposing falsely. He denied the suggestion that he ha signed on the documents while sitting at PS at the instance of IO.
7. PW-2 HC Subhash deposed in his examination-in-chief on the same lines as PW-1 HC Pradeep.
8. During cross examination, witness admitted that they proceeded from the PS at about 5.15 pm. It was correct that no written notice was given to the public persons who refused to join the proceeding. It was correct that the no memo of handing over of seal was prepared. IO did not ask any of the shopkeeper to join the proceeding. He denied the suggestion that no recovery was effected from the accused and he was deposing falsely. He denied the suggestion that he ha signed on the documents while sitting at PS at the instance of IO.
9. Thereafter, the prosecution evidence was closed. Statement of accused Azad Rathi was recorded wherein he denied all the allegations and pleaded innocence. No defence evidence was led by the accused.
10. I have heard the submissions addressed by the Learned APP for state and by the Learned Counsel for accused and carefully perused the record.
11. Learned Defence Counsel has submitted that the accused has been falsely implicated in this case. No public person was joined in the investigation despite availability.
State v. Azad Rathee & Ors. U/s 33/38/52.2 of the Delhi Excise Act & Sec. 174A IPC 5/9 FIR No. 93/13 PS Mundka
12. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. It has been held in case of "Sadhu Singh V/s State of Punjab" 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court :-
"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."
13. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-
"22.49. Matters to be entered in Register No. II :- The following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry State v. Azad Rathee & Ors. U/s 33/38/52.2 of the Delhi Excise Act & Sec. 174A IPC 6/9 FIR No. 93/13 PS Mundka shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
14. In the present case, the above said provision have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal V/s State" 1987 (2) Crimes 29 wherein it was held by the Hon'ble High Court of Delhi, "If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
15. Also, no Public person has been made as a witness in the present case.
Admittedly, the spot was a public area and public persons were present at the spot, however, no sincere efforts was made by the IO to persuade them to join the investigation. No notice was served upon the said witnesses. It has been held in "Roop Chand V/s The State of Haryana",1999 (1) C.L.R 69, by the State v. Azad Rathee & Ors. U/s 33/38/52.2 of the Delhi Excise Act & Sec. 174A IPC 7/9 FIR No. 93/13 PS Mundka Hon'ble Punjab & Haryana High Court that:-
"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 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 he 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''.
16. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of AK and handed over to Ct. State v. Azad Rathee & Ors. U/s 33/38/52.2 of the Delhi Excise Act & Sec. 174A IPC 8/9 FIR No. 93/13 PS Mundka Subhash. However, no handing over memo was prepared. Also, the seal was neither handed over to independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness.
17. In view of the above discussion, court is of the considered opinion that story of the prosecution has become doubtful and the benefit of doubt certainly goes in favour of the accused. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused Azad Rathi is acquitted for the charges punishable U/s 33 of the Delhi Excise Act levelled against him.
18. As per section 437A Cr.P.C accused is admitted to bail on him furnishing personal bond in the sum of Rs.20,000/- with one surety of like amount.
19. File be consigned to the record room with liberty to the prosecution to revive the same as and when the accused Om Prakash is apprehend.
Digitally
signed by
DEEPIKA
DEEPIKA SINGH
SINGH Date:
Announced in open court on 01.12.2018. 2018.12.01 17:34:26 +0530 Certified that this judgment contains (Deepika Singh) 09 pages and each page bears MM-06, (West) my signature. THC, Delhi State v. Azad Rathee & Ors. U/s 33/38/52.2 of the Delhi Excise Act & Sec. 174A IPC 9/9 FIR No. 93/13 PS Mundka