Delhi District Court
State vs . Basanata on 28 March, 2011
IN THE COURT OF SHRI DHARMENDER RANA: MM (WEST): DELHI
State Vs. Basanata
FIR No. :456/05
U/S : 61/1/14 Ex. Act.
PS : Rajouri Garden
JUDGMENT
a) Sl. No. of the case : 1387A/3
b) Date of commission of offence: 13.05.05
c) Date of institution of the case : 27.04.06
d) Name of the complainant : H.C. Amit Kumar
e) Name & address of the accused:. Basanta, s/o. Sh. Sadhu Ram,
Singh,R/o.L-13, 25 yards, Raghubir
Nagar,Delhi.
f) Offence complained off : 61/1/14 Ex. Act.
g) Plea of the accused : Not guilty.
h) Date of reserve for order : 28.03.2011
Final order : Acquitted
j) Date of Judgment : 28.03.2011
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated the case of the prosecution is that on 13.05.05 at about 8:20 p.m in between Gali of L-99, Raghubir Nagar, New Delhi, accused was found in possession of 7 boxes and one plastic katta FIR No.456/05 1 containing 48 quarters of Bonnie Scot in each box and 48 bottles of illicit liquor.
2. Upon completion of the investigation, challan was filed and a formal charge u/s.61/1/14 of Excise Act was framed against the accused. The accused has denied the allegations leveled against him and claimed trial.
3. In order to substantiate the allegations, seven witnesses have been examined on behalf of prosecution.
4. PW1 SI Ramphal is the Duty Officer who has registered the FIR and proved the copy of same Ex.PW1/A. He has also proved endorsement on rukka Ex. PW1/B.
5. PW2 Ct. Ashok Kumar, has deposed against the accused that on 13.05.05 he alongwith complainant H.C. Amit, on receipt of secret information, reached at L-Block, Raghubir Nagar and observed the accused sitting with illicit liquor i.e 7 cartons each containing 48 quarter bottles of Bonnie Scot and a plastic katta containing 24 bottles of Old Fox rum and 24 bottles of Golden Border. He has further deposed that accused fled from the spot upon noticing the policemen. He has proved seizure memo Ex.PW2/A and case property i.e illicit liquor Ex.P-1 FIR No.456/05 2
6. PW3 H.C. Sanjeev Kumar is a police official who participated in the investigation of the case alongwith I.O ASI Zora Singh. He has proved arrest memo Ex.PW3/A and disclosure statement Ex.PW3/B.
7. PW4 H.C. Amit Kumar is the complainant in the instant matter who has deposed against the accused that on 13.05.05, on receipt of secret information, he alongwith Ct. Ashok Kumar reached at L-99, Raghubir Nagar and observed the accused sitting with illicit liquor Ex.P-1. He has further deposed that accused fled from the spot upon noticing the policemen. He has proved Form M-29 Ex.PW4/A, rukka Ex.PW4/B, Site Plan Ex.PW4/C.
8. PW5 H.C. Raj Kumar is the MHC(M) in the instant case who made relevant entry in register no.19 at serial no.5328.
9. PW6 H.C. Ram Chander is a police official who deposited the sample pullanda in Excise Lab, ITO vide RC no.150/21/05.
10. PW7 SI Zora Singh, I.O of the case, has deposed against the accused that on 13.05.05 PW4 H.C. Amit handed him over the case property duly sealed with the seal of AK. He has prepared the Site plan Ex.PW4/C and made enquiries about the said liquor from the neighbourers. He has further deposed that on 16.05.05 he sent the sample to Excise Lab FIR No.456/05 3 and proved the Excise Lab Result Ex.PW7/A. He has further deposed that on 27.05.05 accused was arrested from his residence at L-13, Raghubir Nagar Delhi.
11. Upon conclusion of prosecution evidence statement of accused was recorded U/s. 313 Cr.P.C. wherein he has denied the allegations leveled against him in-toto and has pleaded innocence.
12. I have heard the rival submissions and carefully perused the record.
13. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 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."
14. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced herein for ready reference:- Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:-
''22.49 Matters to be entered in FIR No.456/05 4 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 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.
15. In the present case, the above said provision appears to 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 the Hon'ble Delhi High Court "wherein it has been observed that 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 FIR No.456/05 5 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."
16. In the present case, I.O S.I Zora Singh did not make sincere efforts to join the public witnesses in the police proceedings. Also IO did not serve written notice to the public witnesses who refused to join the police proceedings. At least in the facts and circumstances of the present case, IO could have very well served the witnesses with notice in writing requiring them to join the police proceedings or to face action u/s 187 IPC .
In a case law reported as Anoop Joshi V/s State, 1992 (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 shop-keepers 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 legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal FIR No.456/05 6 duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
' 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 the fact that the witnesses from the public had refused to 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''.
17. As per the prosecution version, 7 cartons and one plastic sack were recovered from the possession of accused. Whereas the case property was produced in kattas/ sacks. The prosecution is silent as to FIR No.456/05 7 how come the cartons were replaced by the plastic kattas. In a case of Excise Act, the identity of the case property forms the bedrock of the indictment. Once the same is shrouded in serious suspicion, the case of prosecution cannot be built upon the testimony of remaining formal witnesses in the absence of any independent public witnesses.
18. Furthermore, in the case at hand, seal after use on the case property and sample bottle was given to Ct. Ashok. To my mind, in such circumstances, chances of fabrication with the case property cannot be ruled out, in as much as, complainant is invariably interested in the conviction of the accused.
19. Ld. Defence counsel has highlighted a very serious infirmity which goes to the root of the prosecution version. It has been highlighted by the Ld. Defence counsel that PW2 Ct. Ashok Kumar submits that the first document prepared by the IO was rukka. However, PW4 H.C. Amit Kumar has testified in his cross-examination that the first document prepared by him was Seizure memo Ex.2/A and the same was prepared in one time and at one go. The perusal of the rukka Ex.PW4/B further reveals that the Seizure memo was already been prepared by HC Amit Kumar prior to the preparation of Rukka. The prosecution is silent as to how come the FIR number finds a mention upon the Seizure memo. Ld. Defence counsel has placed reliance upon the judgments of the Hon'ble High Court in the matter of Kalu Ram Vs. State IV (1999) CCR 240 and Mewa Ram vs. State 2000 Cri L.J. 114 wherein the Hon'ble High Court has observed that FIR No.456/05 8 " This circumstance give rise to two inferences; firstly the FIR (Ex. PW2/B) was recorded prior to the alleged recovery of the contraband and secondly, number of FIR (Ex. PW2/B) was inserted in these documents after registration of the FIR. In both the situations, it seriously reflects upon the main version of the prosecution regarding the alleged recovery of contraband from the accused. In other words, the aforesaid infirmity has shaken the foundation of the prosecution case to an irreparable extent. Principles of criminal jurisprudence which govern the trial of criminal cases do not permit the ignoring or brushing aside such a big jerk given to the prosecution. In this view of the matter, it would not be safe to act upon the testimony of ASI Hari Prakash (PW3) and Constable Salam Mohammed (PW6). Learned Additional Sessions Judge has obviously not kept the aforesaid infirmities in view while dealing with the evidence of the said witnesses. Eliminating the evidence of ASI Hari Prakash (PW3) and Constable Salam Mohammed (PW6) there remains nothing on record to connect the accused with the alleged crime.
Consequently, the conviction and sentence of the accused cannot be sustained in law."
FIR No.456/05 9
20. The facts of the aforementioned case are squarely applicable to the instant case. The prosecution has failed to explain the mention of the FIR number at Seizure memo Ex. PW2/A. The aforesaid lacuna in light of the judgment of Hon'ble High Court is Kalu Ram vs. State (Supra) and Mewa Ram vs. State(Supra) is fatal to the case of prosecution. Accused Basanta is accordingly stands acquitted for the offence U/s 61/1/14 Excise Act.
Announced in the open court
on 28.03.2011 (Dharmender Rana)
MM/Delhi /28.03.2011
FIR No.456/05
10