Delhi District Court
State vs . Gautam Bind & Ors. on 25 January, 2019
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MAGISTRATE-01 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.232/14
PS Lahori Gate
State Vs. Gautam Bind & Ors.
U/s 33 Delhi Excise Act
CIS No.289367/16
CNR No. DLCT-02-000898/14
JUDGMENT
(a) Sr. No. of the Case 289367/16
(b) Date of offence 14.08.2014
(c) Complainant HC Rajneesh
(d) Accused 1. Gautam Bind S/o. Inder Bind, R/o. Jhuggi
DRP Line, Pull Mithai, Delhi.
2. Krishan @ Ganje S/o. Rajender Bind R/o.
Jhuggi DRP Line, Pull Mithai, Delhi (pleaded
guilty).
3. Suraj S/o. Prakash Paswan R/o.Jhuggi
DRP Line, Pull Mithai, Delhi.
(e) Offence 33 Delhi Excise Act
(f) Plea of accused Pleaded Not guilty
(g) Date of Institution 10.10.2014
(h) Final Order Acquitted
(i) Date when judgment was 25.01.2019
reserved
(j) Date of judgment 25.01.2019
1. The present FIR was registered at PS Lahori Gate against the accused persons Gautam Bind, Krishan @ Ganje and Suraj for the offence U/s 33 Delhi Excise Act.
FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.1 of 14
2. The allegations against the accused that on 14.08.2014, at about 12:30 am, in the area of Qutub Road,Pull Near Sadar Bazar, Railway Station, Delhi accused persons Gautam Bind, Krishan @ Ganje and Suraj Prakash were found in possession of 150 quarters bottles each (total 450 quarters bottles), without any licence, permit or pass and in contravention of the notification issued by Delhi Administration. According to prosecution, the accused persons, thereby committed offence punishable under Section 33 Delhi Excise Act, 2009.
3. After completion of the investigation, charge-sheet was filed and the accused persons were supplied with copies of challan alongwith annexures in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for the offence u/s 33 Delhi Excise Act was put to the accused persons Gautam Bind, Krishan @ Ganje and Suraj Prakash vide order dated 08.01.2015, passed by Ld. Predecessor to which they pleaded not guilty and claimed trial.
4. It is pertinent to note that accused Krishan has pleaded guilty vide order dated 21.03.2015 passed by Sh. Dr. Jagminder Singh, Ld. MM, during Special Jail Sitting at Central Jail, Tihar and accordingly sentenced for the period already undergone.
PROSECUTION EVIDENCE
5. In order to prove its case, prosecution has examined 4 witnesses.
6. PW-1 is HC Rajneesh Kumar, who deposed that in the intervening night of 13/14.08.2014 he was posted as HC at PS Lahori Gate, that he along with Ct. Sandeep was on patrolling duty in the area of Beat no.1, Qutub Road Pull, Near Sadar Bazar Railway station. At about 12:30 am, when they reached at the aforesaid spot, they found three persons who were carrying jute bags on their heads, that after seeing them they became frightened and upon suspicion they tried to stop them and after following five-seven steps they apprehended those persons, that when they checked FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.2 of 14 aforesaid jute bags they found illicit liquors inside the bags, that he immediately gave information to DO concerned and after some time IO/SI Jitender Kumar reached on the spot, that they handed over the aforesaid accused persons along with recovered case property to the IO, that IO recorded his statement which is Ex. PW1/A, that thereafter, IO had requested some public persons to join the investigation but none of them agreed and went away without disclosing their names and addresses, that IO had counted the aforesaid case property and prepared seizure memo Ex PW1/B, that IO had taken out five each quarter bottles of illicit liquor from each aforesaid jute bags for sample purposes and rest of the case property were kept in the aforesaid jute bags and sealed with seal of JK, that samples were also sealed with the same seal, that IO had filled M-29 form on the spot, that thereafter FIR was registered and IO had arrested all three accused and also conducted their personal search vide memos Ex. PW1/C,PW1/D Ex PW1/E, Ex. PW 1/F, Ex. PW 1/G and Ex. PW1/H, that IO also recorded disclosure statement of all accused persons vide memosEx PW1/I, PW1/J and PW1/K, that IO also filled age memo form for the accused Suraj and Krishan which is Ex PW1/L and PW1/N, that IO recorded his supplementary statement in this regard. Thereafter, MHC(M) has produced three jute bags sealed with seal of JK, that the seal is found slightly broken and initial are not legible on one of the seals on the aforesaid jute bags, that case properties are Ex.P1 (colly).
7. In the cross examination PW-1 admitted that name of the PS and Section has not been recorded on the aforesaid case properties and only FIR number has been mentioned on the all the jutes bags. He deposed that he was on patrolling duty from 12:00 am to 05:00 am on that day, that he made DD entry prior to going on patrolling duty but he do not remember the same, that when they are reached at spot no public persons except the accused persons were found there, that some public peoples were passing through near by the road when IO reached there, that IO reached at the spot at about 12:50 am on personal bike, that he cannot tell the registration number of the same. He denied that his statement was recorded in the PS. He further deposed that he cannot tell the names of public persons to whom IO requested to join the investigation, that IO did not FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.3 of 14 issue any notice to the public persons to join the investigation, that site plan was prepared by IO at his instance and he has not signed on it, that M-29 form was prepared in triplicate, that he do not remember the exact time when Rukka was prepared by the IO but rukka was sent at about 02:40am, that Ct. Sandeep was going to PS along with Rukka at about 02:40 am and he returned at the spot at about 03:45 am along with copy of FIR and original rukka. He admitted that no photographs of the spot of recovery was clicked by the IO in his presence, that no public persons join the investigation at the time of recovery. He denied that the arrest memo of accused persons were prepared in the PS, that he was not on patrolling duty on that day and that no recovery was affected from the possession of the accused persons, that the case properties were planted upon the accused persons by them, that accused persons were falsely implicated in this case to work out the pending cases or that he is deposing falsely.
8. PW-2 is HC Sayeed Akhtar, who deposed that on 14.08.2014, he was posted at PS Lahori Gate as duty officer, that his duty hours were from 12:00 am to 8:00 am, that he was working as a DD writer and on that day he lodge DD No. 2-A regarding three boys caught with wine bottles at Qutub Road Pull near Railway Station, Sadar Bazar, that copy of DD entry is Ex. PW-2/A (OSR), that after recording of DD entry, same was marked to SI Jitender. Thereafter, he received sent by SI Jitender through constable Sandeep and on the basis of same FIR Ex. PW-2/B got registered, that Certificate under Section 65-B of Indian Evidence Act is Ex. PW-2/C.
9. In the cross examination PW-2 admitted that name and description of accused persons were not mentioned in the DD NO. A, that DD NO. 2-A was not stamped by concerned SHO or concerned ACP. He further deposed that he do not know whether the SHO was present in the PS or not when the rukka was received by Ct. Sandeep. He denied that he is deposing falsely at the instance of IO.
10. PW-3 is Ct. Rakesh Kumar who deposed that on 26.08.2014, he was posted as FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.4 of 14 constable at PS Lahori Gate, that on the instructions of IO he took 15 sample seal and deposited the same in Excise Office, ITO, that he deposited the concerned receipt in Malkhana, that during his custody he did not tamper with the case property.
11. PW-4 is Ct. Sandeep, who deposed that in the intervening night of 13/14.08.2014, he was posted as Ct. at PS lahori Gate, that he along withHC Rajneesh Kumar was on patrolling duty in the area of Beat No. 1, Quatub Road Pull, Near Sadar Bazar, Railway Station, that at about 12:30 am, when they reached at the aforesaid spot, they found three persons who were carrying jute bags on their heads, that after seeking them they became frightened and upon suspicion they tried to stop them and after following five- seven steps they apprehended those persons, that they checked aforesaid jute bags and they found quarter bottles of illicit liquor inside the bags, that HC Rajneesh immediately gave information to DO concerned and after sometime IO/SI Jitender Kumar reached at the spot, that they handed over the accused along with recovered case property to the IO, that IO recorded the statement of HC Rajneesh Kumar Ex. PW-1/A, that IO had requested some public persons to join the investigation but none of them agreed and went away without disclosing their name and addresses, that IO had counted the aforesaid case property and found 150 quarter bottles of make Rasila Santra Masaledar Sharab for sale in Haryana in each of the jute bag/katta, that IO prepared seizure memo Ex. PW-1/B while seizing and sealing the case property with the seal of JK, that IO had taken out five quarter bottles of illicit liquor from each of the aforesaid jute bags for sample purposes and rest of the case property kept in the aforesaid jute bags and sealed with the seal of JK, that samples were also sealed with the same seal, that IO had filed M-29 form at the spot, that IO prepared the rukka and handed over the same to him for registration of the case, that FIR was registered and he came back at the spot and handed over the original rukka and copy of the FIR to IO, that IO had arrested all three accused and also conducted their personal search vide memos Ex. PW-1/C, PW-1/D, Ex. PW-1/E, Ex.PW-1/F, Ex. PW-1/G and Ex. PW- 1/H, that IO also recorded disclosure statement of all accused persons vide memos as Ex. PW-1/I, PW-1/J and PW-1/K, that IO filled age memo form for the accused Suraj FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.5 of 14 and Krishan Ex. PW-1/L and PW-1/N.
12. In the cross examination, PW-4 deposed that he did not remember the DD number of their departure to the spot. He admitted that DD of their departure is not on record. He further deposed that several persons were coming and going near the spot, that Sadar Bazar Railway station is situated at the distance about 100 meters from the spot, that he cannot tell whether any officials were present at the railway station. He admitted that no official from the railway station was called to join the investigation, that no notices were served upon the persons who refused to join the investigation, that no photographer was called at the spot and no photograph of the case property were taken at the spot. He denied that nothing was recovered from the possession of the accused and the accused was not carrying any illicit liquor as deposed by him and the recovered has been planted upon the accused and he has been falsely implicated in the present case, that he is deposing falsely.
13. It is pertinent to note that vide separate statement dated 16.01.2019 accused has admitted the genuineness and correctness of report of chemical examiner dated 03.09.2014 Ex. PA-1, RC No. 68/21/14 Ex. PA-2 and entry no. 2480 in register no. 19 Ex. PA-3. Accordingly, witnesses namely Ram Singh (Assistant Chemical Examiner), Brijender Singh (Chemical Examiner) and MHC(M) were dropped from the list of witnesses vide order dated 16.01.2019.
14. It is pertinent to note that PW witness namely Dr. M.K. Panigarhi was dropped from the list of witnesses vide separate statement dated 25.07.2016 of Ld. APP as accused persons declared major and said witness was the part of the Medical Board who conducted the bone ossification test of the accused persons and testimony of said witness is not relevant for proving the offence under Section 33 Delhi Excise Act.
15. It is also pertinent to mention here that IO Jitender Kumar was dropped from the list of witnesses vide separate statement dated 17.01.2019 of Ld. APP as IO/SI Jitender is FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.6 of 14 diagnosed with infective Endocarditis and Bilateral MCA Infarct (Brain Stroke) and due to this he is not in a condition to understand the language and things after hearing.
STATEMENT OF ACCUSED
16. PE was thereon closed by the Court and statement of accused persons Gautam Bind and Suraj were recorded u/s 281/313 CrPC vide order dated 18.01.2019, wherein the accused persons denied all the incriminating evidence against them and stated that they have been falsely implicated in this case. Since, the accused persons did not wish to lead any defence, hence, matter was fixed for final arguments straightaway.
17. Final arguments heard. File perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
18. In the case in hand the accused persons Gautam Bind, Krishan (pleaded guilty) and Suraj are charge for the offence u/s 33 Delhi Excise Act.
19. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant/ state in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed as follows:-
20. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.7 of 14 the prosecution version highly doubtful. Perusal of the record shows that the place of apprehension of accused alongwith illicit liquor was a public place and public persons were present there despite that no efforts made by the IO to join the public/independent witness in the case in hand. It is apparent from the testimony of PWs that all the proceedings regarding seizure and sealing of case property was done by police officials who were posted in the same police station and not by any independent witness which makes it highly probable that the entire proceeding were conducted at the police station, that the case property was tampered with and that the alleged recovery was planted upon the accused at the police station.
21. PWs have categorically deposed about presence of independent public witnesses however, no sincere efforts have been made to join them in investigation.
22. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining independent witnesses.
23. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
24. 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 place was residential area and one or two persons from the locality could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the public persons had declined to join the raiding party, the police could have later on taken legal action against such persons because they could not have escaped the rigours of law while declining to perform FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.8 of 14 their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
25. In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
26. Considering the aforesaid observations made by the Higher Courts, the omissions /failure on the part of investigating agency to join independent public witnesses creates reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
27. Furthermore, the testimony of PWs shows that seizure memo and Form M-29 was prepared before sending the rukka. However, perusal of the said document clearly shows that the FIR number and other particulars of the present case are mentioned on the said document. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those document which were prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.9 of 14 the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
28. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.10 of 14
29. 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 titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
30. It is pertinent to mention here that investigation is silent regarding the source of liquor for the reasons best known to the investigating agency.
31. Further, perusal of the record reveals that witnesses has not filed DD entry of their arrival and departure. Prosecution witnesses have failed to prove documentary evidence or the DD entries to show their movement from the police station for patrolling or investigation of the case.
32. Regarding the value of making DD entry it is worth mentioning that as per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under :-
22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
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 FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.11 of 14 Posts where Register No. II is maintained.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 19872 (2) Crimes 29 the Hon'ble Delhi High Court "Wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the court will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
33. In the present case, the above said provision appears to have not been complied with by prosecution. These omissions on the part of the prosecution create doubt on the version that the accused was personally searched / arrested with the alleged liquor at the spot by the said PWs.
34. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.12 of 14 become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
35. 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 titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
36. It is pertinent to mention here that IO of the present case namely Jitender Kumar was not examined in the case in hand, therefore, case of prosecution has not been proved in accordance with Law.
37. Furthermore, seal of case property was found tampered and no photographs were taken and placed on record as admitted by PW-1 in his cross examination, thereby reflecting bad investigation.
38. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, non examination of IO of the present case, absence of photographs, absence of DD entry, absence of public persons and tampering of case property, the prosecution has failed to establish its case against both the accused persons beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused persons and therefore, accused persons Gautam Bind and Suraj stands acquitted of the offence u/s 33 Delhi Excise Act accordingly.
FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.13 of 14
39. Necessary Bail Bonds with sureties along with latest passport size photographs and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
40. File be consigned to the record room after due compliance. Digitally signed SHILPI by SHILPI JAIN Date:
Announced and Signed in the Open Court on 25.01.2019 JAIN (Shilpi 2019.01.25 Jain) 18:21:09 +0530 MM-01(Central)/THC/Delhi 25.01.2019 FIR No.232/14 PS Lahori Gate State Vs. Gautam Bind & Ors. Page no.14 of 14