Delhi District Court
State vs . Kinday on 2 December, 2019
IN THE COURT OF SH. RAVINDRA KUMAR PANDEY, MM03, KKD/SHD,
DELHI
STATE Vs. Kinday
FIR No. 225/16
PS: Nand Nagri
U/S: 33 Delhi Excise Act.
02.12.2019
ID No. : 685/17
Date of commission of offence : 07.03.2016
Date of institution of the case : 01.09.2016
Name of the complainant : Ct. Pushkar
Name of accused and address : Kinday S/o Sh. P. Sundaram, R/o E4/138,
Nand Nagri, Delhi
Offence complained of or proved : U/s 33 Delhi Excise Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 02.12.2019
JUDGMENT
1. The case of the prosecution in brief is that on 07.03.2016, at about 01.10 pm, in front of House no. E4/138, Nand Nagri within the jurisdiction of PS Nand Nagri, Delhi, accused Kinday was found in possession of 8 gatta petties (containing 50 half bottles of Gulab Desi Masaledar Sharab in each patti ) of illicit liquor without any valid license or permit and in contravention of provision of Delhi Excise Act 2009 for the purpose of sale.
State Vs. Kinday FIR No. 225/16, PS Nand Nagri page no. 1
2. Prima facie case U/s 33 Delhi Excise Act was found to be made out against accused Kinday W/o P. Sundaram. Accordingly, vide order dt. 22.10.2018 charge was framed against the accused, to which she pleaded not guilty and claimed trial.
3. The prosecution examined 3 (three) witnesses in support of its case, which are as follows:
4. Ct. Pushkar was examined as PW1. He deposed that on 07.03.2016, he was posted at PS Nand Nagri as Ct and on that day, he was on patrolling in the area of EBlock, Nand Nagri, Delhi. PW 1 deposed that he went at E4 Block, Nand Nagri, Delhi, where he met an old lady having possession of 8 petti of illicit liquor and when he asked her regarding petti, she told him that petti had illicit liquor. He deposed that he shared that information to PS concerned. He deposed that HC Satinder & WCt. Sunita came at the spot and after interrogation from old lady, HC Satinder checked petti and HC Satinder asked him to provide 4 empty plastic katta and he provided the same and handed over to HC Satinder. He deposed that HC Satinder kept 8 petti of illicit liquor into 4 plastic katta and the same was tied with white cloth and sealed with the seal of S.K. He deposed that HC Satinder seized the case property and seizure memo Ex. PW1/A was prepared. He deposed that HC Satinder released the old lady under Pabandinama MarkA and he gave written complaint Ex. PW1/B to HC Satinder. He deposed that HC Satinder prepared the rukka and same was handed over to him for registration of FIR and after registration of FIR at PS, he came back at the spot along with copy of FIR and original rukka and the same was handed over to IO/HC Satinder. PW1 deposed that HC Satinder prepared site plan Ex. PW1/C at his instance and HC Satinder recorded the disclosure statement Ex. PW1/D of the the accused Kinday.
During crossexamination, witness stated that he had given the information to PS concerned through his mobile number i.e. 8459802838. Witness stated that he was on State Vs. Kinday FIR No. 225/16, PS Nand Nagri page no. 2 patrolling duty on motorcycle but he does not remember the registration number and colour and description of the said motorcycle. Witness admitted that he does not remember if IO took photograph of the recovered case property on that day. Witness admitted that recovery of illicit was made out side the house of accused. Witness stated that he does not remember if IO gave any notice to public person to join the investigation on that day in his presence. Witness stated that he took rukka at about 02.40 pm for registration of FIR through auto rickshaw and returned at the spot within one hour. Witness stated that he does not know documents prepared by the IO bears whose signature and he can identify only his signature. Witness stated that he does not remember exact time when he finally left the spot. Witness denied that all the proceedings were conducted at PS or that accused has been falsely implicated in this case or that nothing was recovered from the accused or that he deposed falsely.
5. W/Ct. Sunita was examined as PW2. She deposed that on 07.03.16, she was posted at PS Nand Nagri as woman constable and on that day, she was present at the PS and on the receipt of DD No.44B by IO HC Satender, she along with IO reached at the spot i.e. E4/138, Nand Nagri where Ct. Pushkar met with them. She deposed that IO recorded statement of Ct. Pushkar in her presence and Ct. Pushkar handed over custody of accused as well as custody of case property to IO HC Satender. She testified that IO recorded disclosure statement Ex.PW1/D of accused Kinday.
During crossexamination, witness stated that she did not make departure entry in the PS. Witness stated that she does not know the number and colour of the motorcycle on which she along HC Satender left for spot. She does not remember the exact time when she reached at the spot. Witness stated that she can not tell the exact north side, west side, east side and south side of the spot. Witness stated that spot was not a crowded area. Witness stated that IO did not talk to any public person to join the State Vs. Kinday FIR No. 225/16, PS Nand Nagri page no. 3 investigation and she could not tell whether the documents i.e. site plan, seizure memo of case property, arrest memo of accused, personal search memo, pabandi nama has been prepared by the IO at the spot or not. Witness stated that once the papers prepared in the PS, she had signed the same but he could not tell the name of those documents. Witness denied that she never gone to the spot and her statement was recorded by the IO in the PS and IO obtain her signature in PS. Witness stated that she could not tell the exact time when she left the spot but she went at the PS at about 04.00 pm. Witness denied that she had not joined the investigation. Witness denied that she deposed falsely.
6. ASI Jitender was examined as PW3. He deposed that on 04.03.2016, he was posted at PS Nand Nagri as HC and on that day, he was present at PS Nand Nagri. He deposed that on that day, on receipt of DD No. 44 B by him, he alognwith W/Ct. Sunita went at the spot i.e. E4/138, Nand Nagri where Ct. Pushker was met with them. He deposed that Ct. Pushker handed over him case property i.e. 8 gatta patties and custody of accused and on checking above said gatta patties, 5050 quarter bottles of Gulab Masaledar Desi Sharab from each gatta pattie were recovered. He further deposed that one quarter bottle was taken out from each gatta patties as sample and he gave the serial no. 1A to 8A and sealed with seal of SK. PW 3 testified that Form M29 Ex. PW3/A was filled by him and sealed with same seal and after use seal was handed over to Ct. Pushker. He deposed that he seized the case property and prepared seizure memo Ex. PW1/A. PW3 deposed that he recorded the statement Ex. PW1/B of Ct. Pushker. PW3 testified that he prepared rukka Ex. PW3/B and handed over the same to Ct. Pushker for registration of FIR. He further deposed that he also prepared site plan Ex. PW1/C and he recorded the disclosure statement of accused Ex. PW 1/D. He further deposed that accused was released on pabandinama Ex. PW3/C. State Vs. Kinday FIR No. 225/16, PS Nand Nagri page no. 4 Witness was not crossexamined despite having the opportunity for the same.
8. Vide order dt. 05.09.2019 and 20.11.2019, statement of accused u/s 294 Cr. P.C was recorded and witness to registration of FIR, Form M29, RC No. 24/12/16 dt. 05.04.2016. Witnesses at serial no. 3,6,7,8, 9 and 10 are dropped.
9. Vide order dt. 20.11.2019, statement of accused U/s 313 r/w section 281 of Cr.P.C. was recorded, in which all the incriminating evidence were put to the accused. Accused stated that she was falsely implicated in the present case and she was innocent. Accused opted not to lead any evidence in defence.
10. This Court has heard the final arguments and perused the record.
11. It is pertinent to mention here that 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."
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 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 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''.
11 In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble State Vs. Kinday FIR No. 225/16, PS Nand Nagri page no. 5 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 a fact that he 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 nonjoining 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''.
12. It is clear from the record that recovery was effected by Ct. Pushkar at about 01.00 pm from the house of accused and after recovery he informed regarding the same to the Police Station upon which, IO ASI Satender Kumar alongwith Ct. Sunita came at the spot. No public witness was associated by IO ASI Satender Kumar at the time of seizure of case property. During crossexamination, PW 2 W/Ct. Sunita, she failed to respond the discription of place of recovery and also failed to respond regarding the preparation of document namely site plan, seizure memo of case property, arrest and personal search memo of accused and pabandinama which were allegedly prepared by IO at the spot and in the presence of PW2 W/Ct. Sunita. It appears from the testimony of PW2 W/Ct. Sunita that she never join the investigation and never visited the spot with IO and she deposed at the instance of IO.
State Vs. Kinday FIR No. 225/16, PS Nand Nagri page no. 6
13. The prosecution has failed to prove its case beyond reasonable doubts against the accused Kinday. Accordingly, taking into consideration the facts and circumstances of the case, accused Kinday W/o Sh. P. Sundaram is hereby acquitted from the charge punishable U/s 33 Delhi Excise Act.
14. Bail bond / surety bond in sum of Rs. 10000/ in terms of section 437 A Cr. P.C is furnished by accused and accepted.
15. File be consigned to record room.
Announced in the open Court, On 02.12.2019 (Ravindra Kr Pandey) MM03,SHD/KKD,Delhi 02.12.2019 State Vs. Kinday FIR No. 225/16, PS Nand Nagri page no. 7 State Vs. Nanhe