Delhi District Court
F.I.R. No. Should Not Find Mention In The ... vs Unknown on 22 January, 2019
IN THE COURT OF SH. SUMEDH KUMAR SETHI,
CHIEF METROPOLITAN MAGISTRATE,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
'
State v. Mool Chand
Unique Case ID No. 428283/2016
FIR No. 211/2013
Police Station : Najafgarh
Under Section: 33 Delhi Excise Act
Date of institution : 25.04.2014
Date of reserving : 19.01.2019
Date of pronouncement : 22.01.2019
JUDGMENT
a) Serial number of the case : 134/3/14
b) Date of commission of : 08.07.2013 offence
c) Name of the complainant : HC Shammi Kapoor, no. 98/SW
d) Name, parentage and : Mool Chand s/o Sh. Ratan Lal, address of the accused R/o 20 B, Gali no. 15, Deepak Vihar, Najafgarh, New Delhi.
e) Offence complained of : Section 33 of the Delhi Excise Act
f) Plea of the accused : Charge for the offence punishable U/s 33 of the Delhi Excise Act was served upon accused Mool Chand to which he pleaded not guilty and claimed trial.
State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 1 of 16
g) Final order : Accused Mool Chand is being acquitted of the offence punishable U/s 33 of the Delhi Excise Act (hereinafter referred to as 'The Act'.
h) Date of final order : 22.01.2019 CASE OF PROSECUTION
1. Briefly stated, the case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 08.07.2013, HC Shammi Kapoor, no. 98/SW alongwith Ct. Amar Pal and Ct. Dinesh was on patrolling duty and while patrolling at about 06.40 pm, when they reached near House No. B-20, Gali no. 15 Deepak Vihar, Najafgarh, New Delhi, they saw a man coming from there with a white plastic katta on his head. On seeing the police officials, that man took a U turn and started going back at a high pace. On suspicion that man was stopped and the heavy plastic katta which he was carrying on his head was checked and was found containing 204 quarter bottles of Asli Santra Masaledar Desi Sharab, for sale in Haryana Only i.e. illicit liquor. The name of that person was revealed as Mool Chand (hereinafter referred to as 'accused'). HC Shammi took out two quarter bottles as sample. The sample bottles were and the remaining case property were sealed with the seal of SK. Thereafter, HC Shammi Kapoor seized the illicit liquor, filled in form M-29 and prepared tehrir and got the case registered through Ct. Amar Pal. As per the police report during the aforesaid proceedings, State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 2 of 16 Ct. Rajender and Ct. Rakesh who were also having secret information regarding the accused reached at the spot. After registration of the FIR, further investigation was marked to HC Ajmer Singh, who reached at the spot, prepared site plan and conducted further investigation. Accused was arrested in the present case. During the course of further investigation, the samples of the illicit liquor were sent to the Excise Laboratory for expert analysis.
COURT PROCEEDINGS
2. Upon completion of investigation, police report under Section 173 of the Cr.P.C. was filed.
3. The copies of the police report and annexed documents were supplied to the accused in due compliance of Section 207 Cr.P.C.
CHARGE
4. Vide order dated 21.11.2014, passed by the Ld. Predecessor of this Court, charge for the offence punishable under Section 33 of the Act was framed against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
5. To prove its case, the prosecution in all examined five witnesses.
6. PW-1 H.Ct. Shammi Kapoor is one of the recovery witnesses/complainant/part IO of the case, PW-2 Inspector Manoj Kumar, the then SHO PS Najafgarh had counter sealed the case State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 3 of 16 property with the seal of MK. PW-3 ASI Bala Ram is the part/last IO of the case. PW-4 ASI Ajmer Singh is the part/second IO of the case. PW-5 Ct. Dinesh Kumar is also a recovery witness.
STATEMENT / DEFENCE OF THE ACCUSED
7. In his examination recorded under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he is innocent and has been falsely implicated in the present case by planting the case property upon him. The accused did not lead any evidence in his defence.
ANALYSIS AND FINDINGS
8. The record has been thoroughly and carefully perused. The respective submissions of learned Assistant Public Prosecutor for the State and Ld. Counsel for the accused, have been considered.
9. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or licence. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
10. Relying upon Section 52 of the Act, learned Assistant Public Prosecutor for the state had argued that where the accused is charged of commission of the offence punishable Section 33 of the Act, a presumption in favour of the prosecution is raised under Section 52 of the Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary. The State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 4 of 16 said argument does not find favour with this Court. Section 52 of the Act reads as under:
"Presumption as to commission of offence in certain cases. - (1) In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily. (2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
11. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Act clearly reveal that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Act can be raised against the accused in the present case.
State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 5 of 16 Non production of case property in the Court
12. At the outset, it is relevant to note here that the case property in the instant case i.e. the illicit liquor was produced in the court for the first time on 18.04.2016 during the course of examination in chief of PW-1. However, as has been observed in the examination in chief of PW-1, at the time of production of the case property in the court, the seal of SK affixed on the gunny bag (plastic katta) was broken and on opening the katta, it was found containing 202 quarter bottles of illicit liquor, namely, ''Asli Santra Desi Masaledear, for sale in Haryana'' and out of the 202 quarter bottles, 10 quarter bottles were empty and 30 quarter bottles were partly empty. There is no explanation on part of the prosecution as to how the 10 bottles got empty and 30 quarter bottles got partially empty. The benefit of the fact that the case property has not been produced in the court in intact condition has to be given to the accused.
Non-joining of public witnesses in the investigation.
13. Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from near House No. B-20, Gali no. 15, Deepak Vihar, Najafgarh, New Delhi i.e. a residential colony at about 06.40 pm i.e. day time in summers. Therefore, public witnesses must have been easily available at the spot. Further, in the rukka itself, it has been mentioned by the IO that he had requested 4/5 passersby to join investigation but none State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 6 of 16 agreed and left the spot disclosing their inability to join investigation. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 7 of 16 the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
14. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
Presence of HC Shammi Kapoor, Ct. Amar Pal and Ct. Dinesh Kumar at the spot.
15. The present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by HC Shammi Kapoor, Ct. Amar Pal and Ct. Dinesh Kumar who were present at the spot while being on patrolling duty. Needless to say that all the police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II
- The following matters shall, amongst others, be State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 8 of 16 entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
Therefore, at the time of leaving the police station for patrolling, the aforesaid police officials must also have made their departure entries in the roznamcha/Daily Diary register. Since public persons were not joined in the investigation, the aforesaid departure entries of the aforesaid police officials, become a vital piece of evidence. However, neither any such departure entry has been placed on record nor in the entire police report, there is mention of any such departure entry.
Possibility of misuse of seal of the investigating officer
16. As per the testimonies of the prosecution witnesses, the samples of illicit liquor and case property were sealed by the investigating officer with the seal of SK i.e. Head Constable Shammi Kapoor. As per the seizure memo of the illicit liquor Ex.PW1/A1, the seal after use was handed over to Ct. Dinesh Kumar i.e. a recovery witness. Though handing over memo of the seal Ex.PW1/2 is on record, it is relevant to note here that the said memo does not bear the signatures of Ct. Dinesh to whom the seal was allegedly handed State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 9 of 16 over. Further though handing over memo is on record, there is no taking over memo on record to show as to when the seal was taken back from Ct. Dinesh or it remained with him forever. Further the seal in the present case was not handed over to any independent witness nor it was deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
17. The aforesaid observations are more particularly in view of the fact despite the fact that the present case rests solely on the recovery of illicit liquor from the accused persons, the RC vide which, the case property was allegedly sent to the Excise Lab for expert analysis has not been placed on record. In addition to it, though as per the police report, the case property was deposited in the Excise Lab by the second IO i.e. ASI Ajmer Singh, who, however, while being examined as PW-4 has not stated so, nor was cross-examined by Ld. APP for the State on this aspect.
Other infirmities in the prosecution case
18. PW-1 Head Constable Shammi Kapoor has deposed that first of all he prepared the seizure memo of the illicit liquor Ex. PW-1/A1, then the handing over memo of the seal Ex.PW1/2, and thereafter, filled in Form M-29 Ex.PW1/3 before preparing the tehrir Ex. PW-1/4 before preparing the rukka for registration of the case. It is, therefore, clear that the seizure memo of the liquor, handing over memo of the seal and Form M-29 were prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 10 of 16 therefore, admittedly registered after the preparation of seizure memo Ex. PW-1/A1, Ex.PW1/2 and Form M-29 Ex.PW1/3. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Constable Amar Pal. Thus, ordinarily, the FIR number should not find mention in the seizure memo, handing over memo and Form M-29, which came into existence before registration of the FIR. PW-2 Inspector Manoj Kumar deposed that he put the FIR number on the seizure memo and form M-29. However, interestingly, the seizure memo Ex. PW-1/A1 and handing over memo Ex.PW1/2 and Ex. PW1/3 bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 11 of 16 F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
19. In paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration.
State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 12 of 16 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 contraband in the manner alleged by the prosecution."
20. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo Ex. PW-1/A1 and handing over memo Ex.PW1/2 in the same handwriting in which the document was prepared. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
21. It is also relevant to mention here that as per the rukka, it was sent from the spot at about 07.30 pm. As per the FIR, information was received as the PS at about 07.55 pm. As per DD no. 42 B dt. 08.07.2013 Ex.PW2/A, recorded at 08.00 pm, the FIR number had already been registered. Meaning thereby the FIR was registered within five minutes of Ct. Amar Pal reaching the police station, which is rather improbable as compared to the time that is usually taken for registration of FIR and the time that could have been consumed in filling all the details of the case.
22. Another lacuna in the prosecution case which is fatal to it is that the complainant himself acted as the investigating officer to a great extent. It was on the complaint of Head Constable Shammi State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 13 of 16 Kapoor that the FIR was lodged in the present case and he, therefore, became the complainant. It is the prosecution's case that after recovery of the illicit liquor, Head Constable Shammi Kapoor took out samples, sealed the sample and the remaining case property, seized the case property, filled in Form M29 and thereafter prepared tehrir and sent it for registration of FIR. In Megha Singh v. State of Haryana, AIR 1995 SC 2339, the Hon'ble Apex Court observed in paragraph 4 as under:
"... We have also noted another disturbing feature in this case. PW3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
(emphasis supplied) In the instant case as well, Head Constable Shammi Kapoor, i.e. the complainant, acted as an investigating officer inasmuch as having recovered the illicit liquor from the accused, instead of sending the information at the police station and waiting for the other investigating officer to arrive at the spot, he proceeded not only to State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 14 of 16 take out sample from the illicit liquor but also sealed the case property with his own seal and seized the same vide memos. The same leaves room for doubting the fairness of the investigation.
Contradictions in the testimony of prosecution witnesses
23. Besides the aforesaid, there are also some contradictions in the testimony of prosecution witnesses.
24. While as per the rukka Ex.PW1/4, Ct. Rajender Singh and Ct. Rakesh Kumar who were also having secret information regarding the accused had also reached at the spot, none of the witnesses of the spot examined in the court i.e. PW-1 HC Shammi Kapoor (who also happens to be the author of the rukka), PW-5 Ct. Dinesh Kumar and PW-4 ASI Ajmer Singh had deposed about their presence at the spot. Moreover, their signatures also do not appear on any document filed alongwith the police report to corroborate their presence at the spot. Further, neither they have been cited nor examined as witnesses in the present case.
25. Though the arrest memo of the accused Ex.PW4/A and the personal search memo Ex.PW4/B bear the name of Ct. Amar Pal, the same do not bear his signatures.
26. While as per PW-1 HC Shammi Kapoor, Ct. Amar Pal had returned back to the spot at about 08.00 pm, as per PW-2 Inspector Manoj Kumar, Ct. Amar Pal had come to him at about 08.00 pm.
27. As per cross-examination of PW-4 ASI Ajmer Singh, HC State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 15 of 16 Shammi Kapoor had handed over the copy of the seizure memo to him. Even as per DD no. 42 B, Ct. Amar Pal had handed over carbon copy of the seizure memo to SHO Inspector Manoj Kumar. Both these witnesses claim to have received the copies of the memo. It is not understood, if both of them had received the copies of the memos, who had kept the original with him.
CONCLUSION
28. 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 her in the present case. The accused is hereby acquitted of the offence punishable under Section 33 of the Act. Case property, if any, be confiscated to State as per rules.
29. Provisions of Section 437 A have been complied with.
30. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT (SUMEDH KUMAR SETHI) DATED: 22.01.2019 CHIEF METROPOLITAN MAGISTRATE SOUTH WEST DISTRICT, DWARKA COURTS New Delhi State v. Mool Chand FIR No. 211/2013 P.S.: Najafgarh Page 16 of 16