Delhi District Court
State vs . Amar Singh Etc. Fir No. 234/97 Ps Subzi ... on 26 June, 2012
State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act IN THE COURT OF NEERAJ GAUR, METROPOLITAN MAGISTRATEIII, TIS HAZARI COURTS, DELHI Brief reasons for the judgment in the case with following particulars: State V/s Amar Singh etc. FIR No. 234/97 PS : Subzi Mandi U/S 61 of Punjab Excise Act, 1914. U.ID NO. 02401R0020721998 Date of Institution: 15.04.1998 Date of commission of offence 24.04.1997 Name of the Complainant SI Sanjay Kumar. Name and address of accused (1) Amar Singh @ Kalu @ Dharmender s/o Sh. Bhawani Shanker, r/o H. NO. 3, Gali No. 1, Kamla Nagar, Shahdara, Delhi. (2) Mahender Singh s/o Saran Singh (3) Fakina w/o Raju (Both accused Nos. 2 and 3 were discharged vide order dated 23.09.2003) Offence complained of U/S 61 of Punjab Excise Act, 1914. U.ID NO. 02401R0020721998 Page No. 1 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act Plea of accused Pleaded not guilty. Final Order Amar Singh convicted u/s 61 of Punjab Excise Act, 1914. Date of reserve for orders 21.06.2012 Date for announcing the orders 26.06.2012 JUDGMENT:
Brief Facts and pretrial procedure:
1. The accused persons were chargesheeted u/s 61 of Punjab Excise Act on the allegations that on 24.04.1997 SI Ram Chander along with SI Sanjay Sharma, HC Mahender, Ct. Devender and Ct.
Rakesh were on patrolling duty and upon reaching Khanna Market, at about 11.10 am, they were informed by secret informer that a person would be coming in a car No. DL6CB5062 having illicit liquor. The information was reduced into writing and nakabandi was made. At about 12.10 pm maruti car No. DL6CB5062 being driven by the accused was stopped and car was searched. 12 gunny bags / sacks U.ID NO. 02401R0020721998 Page No. 2 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act containing 200 pouches of 200 ml each Masti Masaledar Sarab were recovered from the car. The case property was seized, rukka and site plan were prepared. Accused was arrested. On the disclosure statement of accused Amar Singh, other coaccused namely Mahender and Fatima were arrested. After completion of investigation, the chargesheet was filed before the Court.
2. Copies were supplied to the accused persons. During trial, accused Mahender and Fatima were discharged vide order dated 23.09.2003 and on the basis of the allegations, charge U/S 61 of Excise Act was framed against the accused Amar Singh on the same day. The accused Amar Singh pleaded not guilty and claimed trial.
Trial
3. To prove the charges, prosecution examined six witnesses in total whose testimonies are touched upon in brief as under:
4. PW1 SI Ram Chander deposed that on 24.04.1997 , he along with SI Sanjay Sharma, HC Mahender and Ct. Virender, Ct. U.ID NO. 02401R0020721998 Page No. 3 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act Devender and Rakesh were on patrolling and at about 11.10 am at Khanna market a secret information was received to IO that persons with illegal liquor in trans yamuna would come in a car No. DL6 CB5062 and would go to Khanna Market via Pul Mithai. Public persons were asked to join the proceedings but none agreed. The secret information was reduced into writing by the IO which is Ex.PW1/A. At about 11.45 am they made Nakabandi at the corner of Pul Mithai. He further deposed that at about 12.10 pm, one car bearing registration No. DL6CB5062 came from the side of Mithai Pul towards Hemilton Road and Khanna Market. The car was stopped, checked and 12 gunny bags were found kept in the said car. The gunny bags were checked and each bag was found containing 200 pouches of 200 ml each of Masti Masaledar Made in Rampur. Ct. Virender was sent for bringing 24 empty plastic cans and 24 empty quarter bottles. The gunny bags were given serial Nos. 1 to 12. From each bag the pouches were taken and after cutting the same the liquor U.ID NO. 02401R0020721998 Page No. 4 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act material was poured into the respective cans. From each can, one quarter each (total 24 quarter) were taken as sample and sealed with the seal of SS. Cans were also sealed with the same seal. The empty pouches were kept in the respective bags and the bags were also sealed with the same seal. Form M29 was filled up. The case property was taken into possession and car was also seized vide seizure memo Ex.PW1/B. He further deposed that IO prepared rukka and sent Ct. Virender for registration of FIR who came back and handed over the copy of FIR and rukka to IO. Accused was interrogated, disclosure statement of accused was recorded and accused was arrested vide arrest memo Ex.PW1/C. He correctly identified the accused and case property in the Court. The case properties were exhibited as Ex.P1 to P24 and P25 to P36.
5. PW2 ASI Anita is the DO in the present case who deposed about the registration of FIR and proved the same as Ex.PW2/A.
6. PW3 Devender Kumar deposed that on 24.04.1997 he along U.ID NO. 02401R0020721998 Page No. 5 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act with SI Sanjay Sharma, ASI Ram Chander, HC Mahender, Ct. Virender and Ct. Rakesh was present at Pul Mithai. He further deposed that at about 11.00 am, one secret information was received by IO. Upon the information, IO requested some public persons to join the investigation but none agreed to join. They prepared raiding party and trap was laid under Pul Mithai. At about 12.20 pm, one maruti car came there and SI Sanjay Sharma alerted the raiding party by whistling and said maruti car was stopped. From the said car 12 bags were recovered, which were found containing illicit liquor pouches. Each bag was containing 200 pouches of Rampur Distilleries. The said car was being driven by accused Amar Singh. He further deposed that samples were taken out and all the cans were sealed. SI Sanjay Sharma gave a tehrir to Ct. Virender who went to the PS and came back with the copy of FIR and original rukka. He correctly identified the accused Amar Singh and case properties.
7. PW4 HC Virender Kumar and PW6 Inspector Sanjay U.ID NO. 02401R0020721998 Page No. 6 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act Sharma deposed that on 24.04.1997 they along with HC Mahender Singh, Ct. Devender, Ct. Rakesh, Ct. Virender and ASI Ram Chander were on patrolling. They further deposed that at about 11.20 am a secret information was received that one maruti car bearing No. DL6CB5062 carrying illicit liquor will come from the side of Pul Mithai and will go towards Hemilton Road. PW6 Inspector Sanjay Sharma reduced the information on a white paper vide memo Ex.PW1/A. Public persons were requested to join the investigation but none agreed. PW6 deposed that he formed a raiding party and made Nakabandi around Pul Mithai along with the informer. They deposed that at about 12.10 am a maruti car No. DL6CB5062 was spotted coming from Pul Mithai. The raiding party was alerted and the said car was stopped. The said car was being driven by accused Amar Singh. Upon search of the said car 12 white plastic bags were taken out which were containing 200 pouches of country made illicit liquor each by the name of Mastana Desi Sharab. After that PW6 U.ID NO. 02401R0020721998 Page No. 7 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act sent PW4 Ct. Virender to purchase 24 cans of 20 litres each from Azad Market. All the country made liquor was transfered into the said 24 cans. 24 quarter samples were taken out from each can. Form M29 was filled up and all the case property was taken into police possession vide memo Ex.PW1/B. Thereafter, the rukka Ex.PW6/A was prepared and FIR was got registered through PW4 Ct. Virender. PW6 prepared the site plan Ex.PW6/B. PW6 arrested the accused Amar Singh and conducted personal search vide memo Ex.PW1/C. The accused was sent to lockup and case property were deposited in the Malkhana. PW6 recorded the disclosure statement of accused Amar Singh vide memo Ex.PW6/C. After that on 28.04.97 co accused Mahender was arrested vide memo Ex.PW6/D and he also conducted his personal search vide memo Ex.PW6/E. PW6 further deposed that coaccused Fatima was formally arrested by him on 08.05.9. PW6 further deposed that on 19.05.97 samples were sent to Excise Office through Ct. Shiv Charan. Both the witnesses correctly U.ID NO. 02401R0020721998 Page No. 8 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act identified the accused Amar Singh and case property in the Court. 17 cans were exhibited as Ex.P1/1 to P1/17 and the bags were exhibited as Ex.P2/1 to P2/10.
8. PW5 Ct. Rakesh deposed that on 24.04.97 he along with SI Sanjay Sharma, ASI Ram Chander, HC Mahender, Ct. Virender, Ct. Devender was on patrolling duty. One secret informer met SI Sanjay Sharma and informed that one white coloured maruti No. DL 6 CB5056 will come to Khanna Market via Pul Mithai carrying illicit liquor. They reached at Pul Mithai and took position. At about 12.20 pm the aforesaid van came there and on the signal of SI Sanjay they stopped the car. Same was checked and during checking, 12 gunny bags were found and each bag was found containing 200 pouches of illicit liquor of 200 ml each. All the liquor was poured into cans and 24 samples were taken out. The recovered liquor along with samples were sealed with the seal of SS and were taken into possession. SI Sanjay prepared the rukka and got the case registered through Ct. U.ID NO. 02401R0020721998 Page No. 9 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act Virender who came back at the spot. He further deposed that accused was arrested and his personal search was conducted. The case property along with the car were brought to PS and were deposited in the malkhana. He correctly identified the accused Amar Singh. 22 plastic cans were exhibited as Ex.P1 to P2 and gunny bags were exhibited as Ex.P2/1 to P2/11. Thereafter, the PE was closed and the matter was listed for statement of accused u/s 313 CrPC.
Statement of accused and defence
9. After closure of prosecution evidence , the statement of accused Amar Singh U/S 313 CrPC was recorded. He stated that he was innocent and has been falsely implicated in the present case by planting the case property upon him. He chose to lead evidence in his defence.
10. In support of his case accused examined one Sh. Pappu as DW1 who deposed that accused Amar Singh was working as staff / employee at his shop No. 38, GTB Enclave, CSC Market Pocket F, U.ID NO. 02401R0020721998 Page No. 10 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act Delhi from 13 to 14 years ago. He deposed that one day about 13 to 14 years ago, two police officials came at his shop and inquired about Amar Singh. Since accused was not present at his shop, so I was instructed by the police offiials to ensure presence of accused on the next day. On the next day, police official came at about 01.30 pm and took accused Amar Singh with them. After closure of defence evidence, the matter was listed for final arguments.
Arguments and appreciation of evidence in the light of legal propositions:
11. Ld. Defence counsel firstly argued that all the witnesses are police officials and in absence of corroboration by any independent public witness, their testimonies cannot be relied upon. In this regard, Ld. APP for the State argued that the secret information was duly reduced into writing and Nakabandi was arranged. It is further stated that sometimes the secret information are not found correct due to failure of intelligence. Ordinarily public persons are reluctant in U.ID NO. 02401R0020721998 Page No. 11 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act joining proceedings of police. Moreover, it was not certain that the vehicle would definitely come and the period of Nakabandi could not be ascertained. In these circumstances, Ld. APP for the State argued, that the availability of public person could not be secured by the police.
12. I have given my due consideration. I find merits in the submission of Ld. APP for the State that secret informations are part of police intelligence. It may or may not be found to be correct.
However, these informations cannot also be ignored. The police held a Nakabandi on the basis of secret information. It is not an unknown fact that public persons ordinarily refrain from joining police proceedings. It was not certain at that time, as to for how long the nakabandi was to be made. In the given facts and circumstances, it cannot be inferred that the police deliberately avoided to join any public person as a witness.
13. Ld. Defence counsel argued that there is not proof of using U.ID NO. 02401R0020721998 Page No. 12 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act any barricade while Nakabandi. Nakabandi can be done using only manpower and it is not necessary that barricades have to be put on road while doing Nakabandi.
14. Ld. Defence counsel next argued that as per PW5 and PW6 and as per the prosecution story, PW4 HC Virender was assigned the duty to purchase 24 plastic cans. However, PW4 failed to state the price of the cans purchased by him.
The prosecution produced the case property in the Court, which were 24 plastic cans and 12 gunny bags (containing empty pouches). The illicit liquor must have been found in some container. As per the prosecution case, it was found contained in plastic pouches and the pouches were emptied in the purchased plastic cans. In case the illicit liquor was already in the plastic cans, there was no necessity to propound any false story of purchasing plastic cans. In these circumstances, I find little merits in the arguments of Ld. Defence counsel regarding nonexplanation of the price of the cans by PW4. U.ID NO. 02401R0020721998 Page No. 13 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act
15. Ld. Defence counsel then argued that as per PW5 the vehicle no. was 5056 whereas PW6 stated that vehicle number as 5062. It is also pointed out that as per PW5 the secret information was that the vehicle will come to Khanna market via Pul Mithai. Whereas PW6 stated that as per the secret information the vehicle shall pass through Pul Mithai and head towards Hemilton Road.
It is to be examined by the Court whether the aforementioned contradiction are material or not. I am of the view that the discrepancy regarding the vehicle number could be due to lapse of time and certainly is not fatal. The secret information was reduced into writing which is Ex.PW1/A. As per this information the vehicle was to come via Pul Mithai and was to head towards Hemilton Road , Khanna Market. The contradiction cited above by Ld. Defence counsel regarding the final destination seems immaterial and insignificant.
16. Ld. Counsel also argued that the case property has not been U.ID NO. 02401R0020721998 Page No. 14 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act produced in the Court. I find very little conviction in this argument for the reason that the case property was firstly produced during the evidence of the first witness / PW1 and was duly marked as exhibit on identification of the witness / PW1 (24 Cans marked as Ex.P1 to P24 and 12 gunny bags containing 200 empty pouches marked as Ex.P25 to Ex.P36. Moreover, the testimonies of PWs could not be assailed during their crossexamination regarding their identification of the case property. Accordingly, I have found the arguments of Ld. Defence counsel meritless.
17. Ld. Defence counsel also argued that as per DW1, accused was working as his employee and police official came to his shop and inquired about the accused. On the next day the police officials lifted the accused from his shop. DW1 could not tell the date on which both police officials came. From his deposition it cannot be inferred that on the day of incident, accused was lifted from his shop.
18. Ld. defence counsel lastly argued that the accused has been U.ID NO. 02401R0020721998 Page No. 15 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act falsely implicated by planting the case property / illicit liquor. In this regard, Ld. APP for the State rightly argued that a huge quantity of liquor was recovered and no motive can be assigned to the police to have planted such a huge quantity.
19. As per the FSL result, which is admissible u/s 293 CrPC, the sample sent for chemical examination was a substandard liquor / country made liquor as per Delhi Excise Rules.
20. As per Section 25 of Punjab Excise Act, 1914, no person shall have in his possession any intoxication knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected or knowing the prescribed duty not to have been paid thereon. As per Section 61 of the Act a person who possesses any intoxicant in contravention of any Provision / Section of the Act is liable to be punished with imprisonment for a term extendable upto three years and fine upto Rs. 2000/.
21. After going through the evidence proved on record and after U.ID NO. 02401R0020721998 Page No. 16 of 17 State Vs. Amar Singh etc. FIR No. 234/97 PS Subzi Mandi U/s 61 of Punjab Excise Act considering the aforementioned arguments, I am of the view that the prosecution has established beyond reasonable doubt that on 24.04.97 accused was found in possession of 12 sacks containing 200 pouches of 200 ml each containing illicit liquor. The charge u/s 61 of Punjab Excise Act have been proved against the accused Amar Singh.
Conclusion
22. In view of the above said discussion, accused Amar Singh is convicted for the offence u/s U/S 61 of Punjab Excise Act, 1914.
23. Arguments on sentence shall be heard separately.
Announced in open court (Neeraj Gaur)
today i.e. 26.06.2012 Metropolitan MagistrateIII/N
Tis Hazari Courts, Delhi
U.ID NO. 02401R0020721998 Page No. 17 of 17