Delhi District Court
State vs . Bharat Singh on 22 February, 2020
IN THE COURT OF MS. RASHMI GUPTA
METROPOLITAN MAGISTRATE06, NORTH,
ROHINI COURTS, DELHI
State Vs. Bharat Singh
FIR No. 113/11
PS. Adarsh Nagar
U/s. 33 Delhi Excise Act
CIS No. 5283979/16
JUDGMENT
1) The date of commission of offence : 06.05.2011
2) The name of the complainant : ASI Shashi Kumar
3) The name & parentage of accused : i) Bharat Singh S/o Sh. Sube Singh
4) Offence complained of : U/s 33 Delhi Excise Act
5) The plea of accused persons : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 22.02.2020 Date of Institution : 17.12.2011 Judgment reserved on : Not reserved Judgment announced on : 22.02.2020 THE BRIEF REASONS FOR THE JUDGMENT:
1. Case of the prosecution in brief is that on 06.05.2011, at about 03.00 PM near Azadpur Terminal Bus Stand, GTK Road, Delhi within the jurisdiction of PS Adarsh Nagar the accused person namely Bharat Singh was found in possession of illicit State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 1/11 liquor without any permit or license and in contravention of notification issued by Delhi Administration and thereby committed an offence punishable u/s 33 Delhi Excise Act.
2. After completion of investigation, chargesheet against the accused for offence u/s. 33 Delhi Excise Act was filed in the Court and after complying with the provisions of Sec. 207 Cr.PC, arguments on charge were heard. Vide order dated 02.08.2013, charge was framed U/s 33 Delhi Excise Act against the accused persons to which they pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined 4 witnesses.
4. SI Pancham Singh was examined as PW1. He deposed that on 06.05.2011, he was posted at PS. Adarsh Nagar as a SI.
On that day he was working as DO and his duty hours were 4 PM to 12 midnight. At about 5:05 PM, Ct Gurjeet handed over rukka to him, which was sent by ASI Sashi. On the basis of which he recorded FIR in the present case. Today, he has brought in court original FIR register. Computerized Copy of the FIR is ExPW1/A bearing his signature at point A (OSR). He also made endorsement on rukka is ExPW1/B bearing his signature at point A. After registration of the case he handed over copy of FIR and original rukka to Ct Gurjeet for handing over the same to ASI Sashi.
5. SI Narender was examined as PW2. He deposed that on 06.05.2011, he was posted at PS Adarsh Nagar as PSI. On that State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 2/11 day, he along with ASI Shashi Kumar had gone vide DD no. 19A for investigation in some case in Shadi Nagar Azadpur, when they were returning from Azadpur Shadi Nagar towards PS at about 2:40 pm, when they reached near GTK Tony Shoes we met one Ct. Gurjeet who was on patrolling duty. Thereafter they also met one secret informer who informed us that there was a young person who was standing at Azadpur bus terminal and having 2 plastic kattas. Thereafter, IO formed a raiding party consisting of him and Ct. Gurjeet. ASI Shashi asked some public persons to join the investigations in the present case, however none of them agreed and went away without disclosing their names and addresses. Thereafter, we reached the spot ie., Azadpur Bus Terminal where at the instance of the secret informer the accused was identified who was sitting on two kattas. Upon making preliminary inquiries from him, he told that the kattas contained water bottles. Upon inquiry we found the name of accused as Bharat Singh S/o Sh. Subey Singh. Thereafter, IO himself opened the plastic kattas and found two gatta peti in one of the katta and one gatta peti in the second katta. Katta containing 2 gatta peti each containing 24 half bottles of Maseledar Desi Sharab Murthal no. 1. While the second gatta peti containing 48 quarter bottles Maseledary Desi Sharab. One sample was taken out from each gatta petty while rest of the case property i.e. 23 half bottles in two peties was sealed and 47 quarter bottles was sealed with the seal of SKS. The samples were also sealed. IO had filled the State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 3/11 Form No. M.29. The case property was seized vide seizure memo is Ex.PW2/A bearing his signature at point A. Seal after use was handed over to him. Thereafter, Thereafter, IO prepared the tehrir and handed over the same to Ct. Gurjeet for registration of FIR. At about 5:00 pm, Ct. Gurjeet went to PS and got the FIR registered. After registration of FIR, Ct. Gurjeet returned back at the spot along with second IO HC Shakambar. Thereafter, ASI Shashi handed over the case property and the accused to second IO HC Shakambar. Thereafter, Second IO prepared the site plan at the instance of ASI Shashi which is Mark SP. Thereafter, accused was arrested and personally searched in my presence vide memos are Ex.PW2/B and Ex.PW2/C respectively bearing his signature at point A. IO recorded his statement to this regard. He correctly identified the accsued in the court and also the case property through the photographs.
6. SI Shashi Kumar was examined as PW3. He deposed that on 06.05.2011, he was posted at PS Adarsh Nagar as ASI. On that day, he alongwith PSI Narender Kumar had gone to Shadi Nagar Azadpur, with regard DD No. 19 A and when they were returning at about 2.40 pm reached GTK Toni Shoes, one secret informed inform him that the person with illicit liquor is present at Azadpur Bus Terminal and he could be apprehended if raided immediately. Thereafter, raided team was formed included Ct. Gurjeet Singh PSI Narender Kumar and him. Thereafter, 34 public person were asked to join the investigation but none had joined while sitting State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 4/11 their reasonably excuses. Thereafter, they reached Azadpur Bus Termianl where secret informer pointed out towards a persons and stated that he is person who is caring illicit liquor. Thereafter, we apprehended the person who was siting on 2 plastic kattas. The said kattas were checked, one of the katta was founded containing 2 gatta petti of Murthal No. Masaladaar Desi Sharab in half bottle (24 each) and the other petti was found containing 48 quarter bottles of the abovesaid brand. One bottle was taken out from each petti as sample and the remaining were kept in the respective kattas. The same were sealed after tying them with the help of peace of white cloth, sealed with the seal of SKS. Thereafter, he prepared form no. M29. Thereafter, the case property illicit liquor was seized vide seizer memo already Ex. PW2/A bearing his signature at point B. The seal was handed over to PSI Narender Kumar after use. Thereafter, he prepared the tehrir and handed over the same to Ct. Gurjeet for the registration the FIR accordingly he went to PS and returned to spot alongwith HC Shakambar, the copy of FIR, the original tehrir which is Ex. PW 3/A bearing his signature at point A. HC Shakambar has prepared site plan at his instance. Thereafter, he handed over the custody of case property, documents and the accused to HC Shakambar. IO recorded my statement in this regard. Accused was present in the court and correctly identified by the witness.
7. ASI Shakmber was examined as PW4. He deposed that on 06.05.2011, he was posted at PS Adarsh Nagar as Ct. On that State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 5/11 day, investigation of the present case was transferred to him and thereafter, he alongwith Ct. Gurjeet had reached Azadpur Bus terminal, G.T. Karnal Road where he met ASI Shashi Kumar, PSI Narender and one person Bharat Singh. ASI Shashi had told him that the said person was found carrying illicit liquor. Thereafter, ASI Shashi Kumar handed over him the custody of accused Bharat Singh, the case property and other documents pertaining to investigation. Therefore, he prepared site plan at the instance of ASI Shashi which is now Ex. PW4/A bearing his signatures at point A. Thereafter, accused Bharat Singh was arrested after investigation vide memo already Ex. PW2/B bearing his signatures at point B. His personal search was conducted vide memo Ex. PW2/C bearing his signatures at point B. Thereafter, he recorded statement of PSI Narender Kumar and Ct. Gurjeet./ Thereafter, the accused and case property was taken to PS, after medical examination of the accused was put behind the bars. Case property was deposited in the malkhana. That on the next day, accused was produced before the Court from where he was sent to J.C. On 09.06.2011, he deposited the samples of the present case to Excise Laboratory for examination. That on 19.07.2011, he obtained the result of the laboratory regarding samples. Thereafter, he prepared charge sheet and filed in the court. Accused was present in the Court correctly identified by the witness.
8. The accused admitted the chemical examination report in State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 6/11 the court and the same was exhibited as Ex. C1.
9. After Prosecution evidence, statement of accused Bharat Singh recorded under section 313 Cr.P.C in which the stand of the accused is of general denial. Accused has stated that he is innocent and has been falsely implicated in this case by the police officials. However, the accused has opted not to lead defence evidence.
10. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
11. The present case is based on the recovery which took place from the accused Bhrat Singh while he wasfound in possession of two plastic kattas containing (one katta was containing 2 cartoon containing 24 half bottles and other katta was containing 48 quarter bottles). The recovery of the iilicit liquor was effected by ASI Shashi Kumar in presence of PSI Narender Kumar and Ct. Gurjeet.
12. It is transpired from the testimony of prosecution witnesses that the place where the accused was allegedly apprehended was a public place and public persons were also passing through the spot which was a busy area and also having shops in its vicinity, however, despite the availability of the pubic persons at the spot, there is complete lack of genuine and sincere efforts on the part of police officials to join the public persons to the proceedings. This casts a doubt on the fairness of the investigation.
13. Prosecution witnesses deposed that they asked the public State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 7/11 persons to join the investigation but none agreed and left the spot without telling their names and addresses. In their cross examination they admitted that the place of recovery was a public place, when admittedly, there was presence of the public persons at the spot, there must be a sincere attempt on the part of the police officials, to make the public persons to join the proceedings which was not done for the reasons best known to the said police officials. Neither any action was taken against them nor any notice was given to them. It is well settled that the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. At least in the facts and circumstances of the case, in my opinion, IO could very well have served the passersby with notice in writing to join the police proceedings. At this juncture, it would be pertinent to refer to some case laws.
14. In case titled " N. Ammad Vs. Manager, Emjay High School and others, AIR 1999 SC 50", it was held by Hon'ble Supreme Court as under : ".........From the evidence of PW5 Head Constable, Sat Pal Singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused.
Likewise, PW6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time of the search of the accused even State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 8/11 though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal...
15. Further there is no evidence in the form of DD entry vide which the police officials left the police station for the patrolling duty on 06.05.2011. It further casts doubt over the presence of said police officials who are required to make their arrival or departure entry as per Punjab Police Rules. This failure of the prosecution to bring on record and prove the above noted relevant DD entries also creates reasonable doubt in the prosecution version.
16. As per the version of the prosecution, accused was in possession of illicit liquor. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where, illicit liquor was arranged by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same.
17. Moreover, the case property and accused remained in State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 9/11 control of police officials till the case property was deposited in the Malkhana. Hence, tampering with the case property cannot be ruled out as the seal remained all along with the police officials.
18. Ordinarily, the FIR number should not find mention in the seizure memos, which came into existence before registration of the FIR. However, interestingly, the seizure memos Ex. PW2/A bears the FIR number and case details in the same ink in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. No explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memos Ex. PW2/A, when the FIR was registered subsequent to the alleged seizure of liquor from the possession of accused. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the liquor or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the liquor in the manner alleged by the prosecution.
19. The facts that no independent witness was cited or examined, daily diary entry regarding departure has not been proved, possibility of misuse of seal has not been ruled out, contradiction in the testimony of prosecution witnesses and the appearance of FIR number and case particulars on the seizure memos has not been explained, when kept in juxtaposition to State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 10/11 each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
20. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
21. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Bharat Singh is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act.
22. Accused is directed to furnish bonds u/s 437A CrPC.
23. File be consigned to record room after due compliance.
Digitally signed by RASHMI RASHMI GUPTA Announced in open Court GUPTA Date: 2020.03.07 on 22nd Day of February, 2020 16:41:44 +0530 (Rashmi Gupta) MM06, North District Rohini Courts, Delhi/22.02.2020 State Vs. Bharat Singh, FIR No. 113/11, PS Adarsh Nagar, CIS No. 5283979/16 11/11