Delhi District Court
Court In Case Titled As Megha Singh vs State Of Haryana Reported In on 27 August, 2013
IN THE COURT OF MS.PURVA SAREEN, METROPOLITAN MAGISTRATE01
SOUTH, SAKET COURTS, NEW DELHI
State v. Vinod Kumar
FIR No.178/12
PS SJ Enclave
U/s 33 Delhi Excise Act
JUDGMENT
Date of institution : 14.08.2012
Date of Commission of offence : 29.05.2012
Name of the complainant : HC Dinesh Tyagi
Name & address of the accused : Vinod Kumar S/o Sh.Suraj Bhan
R/o Village Kakdoli, PS Batada,
District Bhiwani, Haryana
Offence Complaint of : U/s 33 Delhi Excise Act
Plea of the accused persons : Pleaded not guilty
Final Order : Acquitted
Date for reserve of order : 24.08.2013
Date of announcing of order : 27.08.2013
BRIEF FACTS AND REASONS FOR DECISION
1. Briefly stated, accused Vinod Kumar has been sent to face trial for the offence u/s 33 Delhi Excise Act, 2009 with the allegations that on 29.05.2012 at about 5 pm at T Point, Argjun Nagar, SJ Enclave, New Delhi, within the jurisdiction of PS SJ Enclave, the accused was found in possession of 480 quarter bottles of N.V Group Besto Whiskey without State v. Vinod Kumar Page 1 FIR No.178/12 PS SJ Enclave any valid permit or license.
2. After completion of investigation charge sheet was filed before the court and the accused was consequently summoned. A prima facie charge U/s 33 Delhi Excise Act, 2009 was framed against the accused by Ld. Predecessor Court on 20.11.2012 to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined five witnesses as under :
(i) PW1 HC Sudhir Kumar was duty officer who proved the FIR vide memo Ex.PW1/A and endorsement upon rukka vide memo Ex.PW1/B. In his cross examination by Ld. Defence counsel it is stated by witness that it took 30 to 45 minutes in registration of FIR. Copy was sent through Ct. Amit at about 7.15 am.
(ii) PW2 Ct. Ravinder deposed before the court that on 05.06.2012 he took the copy of road certificate along with 10 samples sealed with the seal of DK and deposited the same with Excise Office.
Accused did not prefer to cross examine the witness.
(iii) PW3 Ct. Ramender deposed before the court that 29.05.2012 he was on patrolling duty along with HC Dinesh Tyagi and Ct. Amit Kumar. At about 4.40 am one secret informer informed them regarding illicit State v. Vinod Kumar Page 2 FIR No.178/12 PS SJ Enclave liquor being carried in Maruti Esteem Car would cross Green Park and would reach the ring road after crossing Arjun Nagar T point. They reached at the spot and put barricades. At about 05.00 am a Maruti Esteem Car (Gray colour) came and was stopped but it tried to escape. Accused was apprehended whose name was revealed as Vinod Kumar. Car was found containing 10 cartons (48 quarter of Besto Whiskey, for sale in Arunachal Pradesh only in each carton) of illicit liquor. One bottle from each was taken and sealed with the seal of DK. Remaining liquor was sealed. Rukka was prepared by IO. Seizure memo of Car and liquor was prepared. Documents of car were also seized. Accused was arrested and his personal search was conducted. Disclosure statement of accused was also recorded. IO recorded his statement.
In his cross examination by ld. Defence counsel it is stated by witness that he left the spot at around 7/7.15 am after entire proceedings and they all went to PS. Witness further stated that he did not remember who brought the offending vehicle and how the accused was taken to PS. Witness further stated that he did not remember when the case property was deposited in malkhana. It is further stated that there was no guard etc was present in the market at that time from where the accused was arrested. No public person was made as witness as there was no public person present at that time. Seizure memo of car was prepared after the rukka was sent to PS. It is admitted by witness that Amit was not present when seizure memo was prepared. However, they both signed the documents together after he returned back from State v. Vinod Kumar Page 3 FIR No.178/12 PS SJ Enclave PS. Witness further stated that he did not remember when the case property was sealed. The documents were prepared on the bonnet of the seized car. His statement was recorded at PS. Balwan came at about 6 to 6.20 am. His statement was not recorded by IO.
(iv) PW4 Ct. Amit Rathi deposed that on the intervening night of 28/29.05.2012 he was on patrolling duty along with HC Dinesh Tyagi and Ct. Ram Niwas in the area of Arjun Nagar. At about 4.30 am when they reached near T point Arjun Nagar one secret informer informed them that one maruti esteem car carrying illicit liquor would cross green park and would reach at Ring Road after crossing the Arjun Nagar T point. They placed a barricade. At about 5 am a maruti esteem car (gray colour) came. The car was stopped but the driver tried to escape. He was apprehended and his name was revealed as Vinod Kumar. 45 passerby was requested by IO to join the case but none agreed and left the spot without disclosing their names and addressed. No written notice served upon them due to paucity of time. Car was found containing 10 cartons of illicit liquor. Each carton was containing 48 quarter of Besto Whiskey Rum (for sale in Arunachal Pradesh only). One quarter bottle from each carton as sample and put into the white cloth pullanda and sealed with the seal of DK. Remaining case property was put into the same cartons and sealed with the seal of DK. Rukka was prepared and FIR got registered through him. Seal after used was also handed over to IO. After registration of FIR he came back at the State v. Vinod Kumar Page 4 FIR No.178/12 PS SJ Enclave spot along with original rukka and copy of FIR and haded over the same to IO. Registration number of above said Maruti Car was DL2CG9205. The illicit liquor and car were seized. Accused was interrogated and his disclosure statement was recorded. Accused was arrested and his personal search was conducted. RC of offending vehicle was seized. Case property was deposited into Malkahana and accused was sent to lock up after his medical examination. IO recorded his statement.
In his cross examination by ld. Defence counsel it is stated by witness that they finally left the spot for about 7.15 am. The car was brought at Malkhana by him. They were on one govt and one private vehicle for patrolling. The seal was returned to the IO in the evening of same day. No handing over/returning memo was prepared regarding the seal. Witness further stated that there was no thickly market area from where the accused was apprehended. IO did not call the nearby resident to join the investigation. There was one chowkidar present near the T point. Firstly, IO prepared rukka after this he took the rukka to PS. Witness further stated that he did not remember how many documents were prepared by IO prior to registration of FIR and after registration of FIR. He did not sign any paper prior to registration of FIR. His statement was recorded at the spot. He went with rukka at about 6.30 am and returned back at about 7.15 am. All written work was done while sitting on the chair.
(v) PW5 HC Dinesh Tyagi deposed before the court that on 29.05.2012 State v. Vinod Kumar Page 5 FIR No.178/12 PS SJ Enclave he along with Ct. Amit Rathi and Ct.Ramender were on patrolling duty in the area of Arjun Nagar T point vide DD No.5A. At about 4.40 am a secret informer informed that one maruti esteem car will pass through the road in front of Reliance fresh, carrying illicit liquor. Barricades were in front of Reliance Fresh Ring Road. Information was shared with the SHO. Some public persons were requested to join the investigation but none agreed and left the place without disclosing their names and addresses. At about 5 am one maruti esteem car was seen coming from Green Park side. It was signaled to stop. The accused stopped the car just before the barricade and tried to flee away but was apprehended and his name was revealed as Vinod Kumar. The vehicle was bearing no.DL2CG9205 which found containing ten cartons of illicit liquor. Each carton was containing 48 quarter bottles of NV Group Best whiskey for sale in Arunachal Pradesh only. One bottle from each carton was taken as sample with serial number from S1 to S10. Cartons were also give serial number from A1 to A10. Samples were bottles with the seal of DK. After use seal was handed over to Ct. Amit Rathi. M29 was prepared. Case property, car and its documents were seized. Rukka was prepared and FIR was got registered. Site plan was prepared. Accused was arrested and his personal search was conducted. The case property was deposited into malkhana. Accused was produced before the court. Statement of witnesses were recorded. Sample bottles were sent to Excise Lab. Result of the same was obtained and placed on record. Challan was prepared and filed before the court through SHO.
State v. Vinod Kumar Page 6
FIR No.178/12 PS SJ Enclave
In his cross examination by ld. Defence counsel it is stated by witness that they were on foot patrolling. The offending was brought to PS by him. Seal was returned to him on the same day in the evening at about 4/5 pm after completion of investigation. No memo was prepared regarding the same. It is admitted by witness that many vehicles were plying there at that time. Some passerby/vehicle were asked to join the investigation but none agreed. No written notice was served to them. It is further admitted by witness that there was residential area at the distance of 2030 meters from the road. None from the residential area was requested to be a witness. No chowkidar was present near the spot. The cloth which was used to sealing the case property was taken from IO kit. Firstly, the rukka was prepared on the spot. Again said firstly, seizure memo of vehicle and liquor were prepared. Ct. Amit took the rukka at about 6/6.30 am and returned back along with rukka and copy of FIR at about 08.00 am. He went to PS and returned back on foot. After completion of investigation, they left the spot at about 11 am. Written work was done at footpath. Three copies of form M29 were prepared. The original owner of the offending vehicle could not be traced out.
4. Thereafter, PE was closed. Statement of accused U/s 313 Cr.P.C. was recorded wherein he refused the allegations levelled against him. He further stated that he wants to lead DE but no defence witness was produced by accused. Thereafter, DE was closed and final arguments State v. Vinod Kumar Page 7 FIR No.178/12 PS SJ Enclave were addressed.
5. I have heard the submissions and carefully perused the record.
6. It is highlighted by the accused that IO has not joined any independent public witness despite availability. Admittedly, several public witnesses were present at the time of apprehension of the accused and while completing the formalities but none of them was even requested to become a witness by the IO. This casts doubt about the sincere efforts made by the IO to join independent witnesses. In Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of Maharashtra reported AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. It is settled proposition of law that Sub Section 4 of Section 100 CrPC is directory provision, however, explanation of non joining of independent witness should be plausible. The explanation put forwarded by the prosecution for non joining of independent witness appears to be implausible for reason that there was ample time with the IO at lest to note down the particulars of the persons who refused to join the investigation. The same creates doubt regarding the fairness of the investigation.
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FIR No.178/12 PS SJ Enclave
7. No plausible explanation is coming from the prosecution forthcoming for non joining of independence witness despite the fact that the place of recovery is the public place and thickly populated. Reference by made to the judgment titled as State of Punjab v. Gurmej Singh reported as 1991(2) RCR (Criminal) 361 (P&H) (DB).
8. Further, the seal remained with a junior police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of sample being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
9. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment State v. Vinod Kumar Page 9 FIR No.178/12 PS SJ Enclave titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII (2207) SLT 454 (SC).
10.It is also noteworthy that the most crucial part of the investigation has been conducted by the complainant HC Dinesh Tyagi even before registration of FIR. Since, he was present at the spot along with other police official, no explanation has been put forth by the prosecution as to why despite availability, the investigation was not handed over to some other senior officer. In such case, as observed by Hon'ble Supreme Court in case titled as Megha Singh V/s State of Haryana reported in 1995 Crl. L.J. 3988 and as held int eh case titled as Sunil V/s State reported in 1999(1) JCC 85(Delhi) benefit of doubt is to be given to the accused.
11.In view of the aforesaid discussion, I am of the opinion that prosecution has failed to prove its case against the accused beyond all reasonable doubts. Accused accordingly stands acquitted for the offence punishable U/s 33 Delhi Excise Act, 2009.
12.Bail bond furnished and accepted u/s 437A CrPC.
13.File be consigned to record room.
Announced in the open court (PURVA SAREEN)
on 27th August, 2013 MM1/SOUTH/SAKET COURT
NEW DELHI
State v. Vinod Kumar Page 10
FIR No.178/12 PS SJ Enclave