Delhi District Court
State vs . Murtaza on 20 December, 2015
IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN
MAGISTRATE02, (SOUTH EAST), SAKET COURTS, DELHI.
FIR NO. 231/13
U/S. : 33/38 DELHI EXCISE ACT.
P.S. : OKHLA INDUSTRIAL AREA
STATE VS. MURTAZA
JUDGMENT
1. Sl. No of the case : 196/2/14
2. Date of commission of the offence : 02.05.2013
3. Date of institution of the case : 13.05.2014
4. Name of the accused : Murtaza S/o Sh.
Jiyaullah
5. Name of the complainant : SI Bijender Singh
6. Offence complained of : 33/38 Delhi Excise Act
7. Plea of accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of such order : 10.12.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused has been sent to face trial under section 33 Delhi Excise Act, 2009, by the SHO, PS Okhla Industrial Area, Delhi.
2. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that on 02.05.2013, at about 09:40 p.m, in front of ESI hospital, Maa Anandmai Marg, OIA, PhaseI, New Delhi, the accused was found in possession of a plastic plastic sack (katta) containing total 140 quarter bottles of illicit liquor, without any license or permit of N.C.T of Delhi. Therefore, the present FIR No. 231/13, under section 33/38 Delhi Excise Act, at PS. Okhla Industrial Area, was registered. After completion of the investigation, charge sheet was prepared and filed in the Court.
3. In compliance of Section 207 Cr.P.C. the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge U/s. 33 Delhi Excise Act was made out against the accused Murtaza. Accordingly, on 07.10.2015, the charge was framed. The accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined only one witness.
5. PW1 Ct. Virender Singh is recovery witness of this case. He has deposed that on 02.05.2013, he was on picket duty alongwith SI Bijender in front of ESI hospital, Maa Anandmai Marg, OIA, PhaseI, New Delhi. During the course of picket duty, they saw one person carrying a (katta) plastic bag on the footrest of his scooter bearing registration no.DL7ST2881 and coming from the side of MB road. They apprehended the said man. On inquiry, his name was revealed as Murtaza and on checking of plastic bag (Katta), it was found to be containing 140 quarter bottles of illicit liquor of Jagdhari No.1 for sale in Haryana only. Thereafter, he took out one quarter bottle as sample. The remaining case property and the sample were sealed with the seal of "BS". The same were taken into possession vide seizure memo Ex.PW1/A. IO/SI Bijender filled form M 29 at the spot. Thereafter, he prepared the rukka and got the FIR registered through Ct. Virender Singh. After registration of FIR, Ct. Virender Singh returned to spot with original rukka and copy of FIR and the same were handed over to IO. IO prepared the site plan. After interrogation, IO arrested the accused vide memo Ex.PW1/C. The case property was deposited in Malkhana. He correctly identified the accused. MHC(M) had produced one photograph of sealed katta containing illicit liquor Ex.P1, destruction order of illicit liquor marked as Mark A and retained sample bottle of illicit liquor, the same were shown to the witness, who correctly identified the illicit liquor in the said photograph and the retained sample quarter bottle to be the same that was recovered from the possession of the accused. Thereafter, PE was closed.
6. Statement of the accused u/s. 313/281 Cr.P.C was recorded. All the incriminating evidence were put to him. In the said statement he has stated that he has been falsely implicated in the present case and he is innocent. He has further stated that the case property was falsely planted upon him. However, he preferred not to lead evidence in defence. Thereafter, the matter was listed for final arguments.
7. I have heard the Ld. APP for the state and Ld. Counsel for the accused. I have carefully perused the case record.
8. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he/she is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution and the prosecution is required to stands on its own legs to establish the culpability of the accused. The benefit of doubt if any, must go in favour of the accused.
9. In order to sustain conviction U/s.33 Delhi Excise Act the prosecution is required to prove the following ingredients:
(i) The accused was found in the possession of the illicit liquor; and
(ii) He/She was possessing the same without any licence/permit.
10. The prosecution is required to prove that the illicit liquor was recovered from the possession of the accused by PW1 Ct. Virender Singh and IO/SI Bijender Singh. They are the material witnesses as they are the alleged recovery witnesses. As per the prosecution, they were on picket duty at the time of recovery of the liquor from the possession of the accused. However, the prosecution has failed to place and prove on record the departure entry of the said witnesses vide which they allegedly left the police station for the purpose of picket duty in the area. The said departure entry is indispensable for establishing their presence at the spot of alleged recovery. Therefore, their presence at the alleged place, time and date of recovery of the illicit liquor from the possession of the accused is doubtful.
11. The alleged incident pertains to have occurred on 02.05.2013, in front of ESI hospital, Maa Anandmai Marg, OIA, PhaseI, New Delhi. The said spot is admittedly a densely crowded area and it is a busy road. Therefore, it can be convincingly inferred that there were many public persons available at the spot of alleged recovery. The criminal law has duly empowered the investigating officer/police officials to initiate action against the persons who refuse to participate in the investigation. But still, IO neither made any genuine and sincere efforts to join public/independent witnesses nor advanced any plausible explanation as to why no independent witnesses were examined by him. Hence, story of the prosecution is further shrouded in suspicion.
12. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by an independent material witness. The witness that is examined by the prosecution in the present case is police witness, who is interested in the success of the prosecution case and therefore, the probability of him being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine and sincere efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration 1987 CC 585 Delhi High Court.
13. Keeping in view the fact that the version of prosecution witness has remained uncorroborated by any other independent witness regarding the alleged recovery of illicit liquor, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that "Prosecution case resting solely on the testimony of head constable and no independent witness examinedprosecution story appearing improbable and unnatural. Held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted".
14. In the light of above facts, the prosecution has failed to discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to the accused Murtaza and he is acquitted of the charge U/s.33 Delhi Excise Act. He is directed to furnish fresh personal bond in the sum of Rs.10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. He submits that his previous bail bonds and surety bonds be accepted for next six months. The said request is allowed and they are accepted for the next six months. Case property be confiscated to the State.
File be consigned to record room after due compliance.
Announced in the open court on 10.12.2015 (DHEERAJ MOR) METROPOLITAN MAGISTRATE02 DISTRICT SOUTH EAST, SAKET COURT, DELHI FIR NO.231/13 U/S. : 33/38 DELHI EXCISE ACT.
P.S. : OKHLA INDUSTRIAL AREA
STATE VS. MURTAZA
10.12.2015
Present: Ld. APP for the State.
Accused Murtaza on bail with his counsel.
PW1 Ct. Virender Singh is examined and discharged. No other PW is present. The material prosecution witness has already been examined. Thus, PE stands closed.
Separate statement of accused u/s 313/281 Cr.P.C is recorded. Accused submits that he does not want to lead any defence evidence. Thus, DE stands closed.
Final arguments are heard. Case file is perused. Vide my separate judgment announced in the open court today, the accused Murtaza stands acquitted for the offence punishable U/s 33 of Delhi Excise Act. He is directed to furnish fresh personal bond in the sum of Rs.10,000/ with one surety in the like amount, in accordance with Section 437A Cr.P.C. He submits that his previous bail bonds and surety bonds be accepted for next six months. The said request is allowed and they are accepted for the next six months. Case property be confiscated to the State.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM02/South East/Delhi 10.12.2015