IN THE COURT OF SHRI SUSHIL ANUJ TYAGI, METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI State Vs. [ENTITY]. [CASE NUMBER] P.S. Kanjhawala Unique ID No. 02404RO374732010 Date of institution of case: 10.1.2003 Date of reserving the judgment: 03.4.2012 Date of pronouncement of judgment: 11.4.2012 J U D G M E N T
1. S. No. of the Case : 206A/3/2003 2. Date of Commission of Offence : 27.9.02 3. Date of institution of the case : 10.1.2003 4. Name of the complainant : ASI [ENTITY]
5. Name of the accused, parentage & address: [ENTITY] S/o [ENTITY], R/o C317, Inder Enclave, Sultanpuri, Delhi
6. Offence complained or proved : 61/1/14 [ACT]
7. Plea of Accused : "Not Guilty"
8. Final Order : Acquitted
9. Date of Final Order : 11.4.2012 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of prosecution as unfolded by report U/[SECTION] [ACT] is that on 27.9.2002 at about 2:15pm, on road between Jhingar Pura and Majra Dabas within the jurisdiction of PS Kanjhawala accused [ENTITY] was apprehended by PCR officials, in possession of 22 quarters of whiskey and 50 quarters of country made liquor on a scooter bearing registration No. DIN 9479. Accused was arrested, case property was deposited in malkhana and upon completion of investigation challan was prepared and file in court for trial.
2. The copies of chargesheet and annexed documents were supplied to accused in due compliance of [SECTION] [ACT]
3. Prima facie case having been made out, charge for offence U/[SECTION] [ACT] was framed against the accused on 18.8.2004 to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined following witnesses:
5. PW 1 [ENTITY] was posted as MHC(M) with whom the case property was deposited by the IO. He proved entry in register No. 19 to this effect as Ex. PW 1/A.
6. PW 2 [ENTITY] deposed that on 27.9.2002 on receipt of DD No. 17A he alongwith [ENTITY] reached at the spot where ASI [ENTITY] of PCR met them and he produced the accused and case property to [ENTITY]. He proved statement of ASI [ENTITY] as Ex. PW 2/A. He further deposed that 22 quarters of Directors Special Whiskey and 50 quarters of Desi Mastana Special Masaledar were recovered from the dikki of scooter of accused and IO took out one quarter from each label as sample and sealed with the seal of HC. Seal after use was handed over to ASI [ENTITY]. IO prepared form [SECTION] on the spot. He further deposed that IO seized the case property vide memo Ex. PW 2/B. Thereafter IO prepared tehrir and got the FIR registered through him. He proved arrest memo as Ex PW 2/C and personal search memo as Ex. PW 2/D and also proved the case property as Ex. P1.
7. PW 3 [ENTITY] [ENTITY] took the samples to excise laboratory. He proved the excise result as Ex. PW 3/A.
8. PW 4 ASI [ENTITY] deposed that on 27.9.2002 he alongwith his staff was posted in PCR and was doing vehicle checking duty between Meerpur and Majra Dabas and at about 2.15pm one scooter bearign NO. DIN 9479 came from village Meerpur side. On suspicion he gave signal to stop and it stopped and on checking it was found containing illicit liquor. He interrogated the accused and his name revealed as [ENTITY]. Thereafter he gave information to the control room upon which [ENTITY] alongwith [ENTITY] [ENTITY] came at the spot and he handed over the accused, case property as well as scooter to [ENTITY]. He proved his statement as Ex. PW 4/A. He further deposed that IO checked and counted the illicit liquor and found 22 quarter bottles of English liquor and 50 quarters of [ENTITY]. Thereafter IO separated 11 quarter bottle for sample and sealed with the seal of BL and seal after use was handed over to him. IO filled form [SECTION]. He proved the seizure memo Ex.PW2/B, proved site plan as Ex. PW 4/B, proved the case property Ex. P1 and proved the scooter as Ex. P 2.
9. [ENTITY] was posted as duty officer who registered the FIR Ex. PW 1/A. He proved the rukka Ex. PW 1/B.
10. PW 5 ASI [ENTITY] is the investigating officer of the case. He deposed that on 27.9.092, on receipt of DD No. 38B, Ex. PW 6/A he alongwith [ENTITY] [ENTITY] reached at place of incident i.e on the road between village Jhimarpura and Majra Dabas where ASI [ENTITY], IC PCR Van was found present alongwith his staff and he handed over to him accused [ENTITY] with his scooter No. DIN 9479 as the recovery of 72 quarter bottles and illicit liquor was effected from his possession. He recorded statement of ASI [ENTITY] which is already Ex. PW 4/A. He counted the quarter bottles. 22 quarters printed with Director Special for sale in Haryana were recovered from front dikki and 50 quarters printed with [ENTITY] were recovered from the special dikki under the seat. One sample each from both kind of liquor was separated and were sealed with the seal of HC and remaining quarters were kept in a plastic katta which was sealed with the same seal. He seized the above sealed case property and the scooter vide seizure memo already Ex. PW 2/B. Form [SECTION] was filled on the spot which is Ex. PW 6/B. On the basis of the same, he prepared rukka Ex. PW 6/C and it was handed over to [ENTITY] who went to PS and got registered the FIR and returned back at the spot and handed over to him the copy of FIR and original rukka. Thereafter place of incident was inspected and a site plan already Ex PW 4/C was prepared at the instance of ASI [ENTITY]. Thereafter he arrested accused [ENTITY] vide memo already Ex. PW 2/C and personal search of accused was also conducted vide memo already Ex. PW 2/D. He proved the quarter bottles Ex. P1 and the scooter Ex. P2.
11. Statement of accused was recorded U/[SECTION] [ACT] on 08.2.2012. He claimed innocence and false implication. He did not wish to lead defence evidence.
12. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel.
13. In the present case, it is the case of the prosecution that the accused was found in possession of country made liquor without any licence or permission on the fateful day. To substantiate the case, the prosecution was required to prove that the accused was found in possession of illicit liquor and was to prove recovery beyond reasonable doubts.
14. Evidently, no public witness to the recovery of the liquor has been cited in the list of witnesses. The place of arrest of accused persons was between the road, Jhingarpura and Majra Dabas which is not a deserted area and the time of arrest was 2:15p.m. It is admitted by PW 4 ASI [ENTITY] that vehicles were passing thereby, however no public witness was called to join the proceedings. It is not the case of the prosecution that no public was present at or near the spot of arrest and recovery. No names of the public witness who were requested to join the proceedings are available on record. It is not proved on record that public witness were given notice to join the proceedings. The police officer is entrusted with ample power under the provisions of [ACT] to initiate proceedings u/[SECTION] [ACT] if any person does not cooperate with him despite giving notice. No efforts by the IO are seen on the file for joining the public witnesses. The testimony of all the witnesses examined by the prosecution is silent to the effect that any efforts were made by the investigating officer to join public witnesses. It is well settled proposition that non joining of public witness shrouds doubt over the fairness of the investigation by police. Even [SECTION] casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. In the case of [PRECEDENT], it has been held as under :
"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 have 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 case of a 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 IO should have made an earnest effort to join 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."
15. The present case totally rests upon the alleged recovery of the case property from the possession of the accused at the relevant time. The arrival and departure entries of the police official i.e. PW 4 ASI [ENTITY] who apprehended the accused with case property is a vital piece of evidence have also not been proved on record. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per the PPR rules. It is apposite at this juncture to reproduce [SECTION] of [ACT], provides as under:
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be 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 personality by signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
16. It is also pertinent to observe that the case property was allegedly sealed by the IO with the seal of BL and seal after use was handed over to ASI [ENTITY]. The seal in the present case was not handed over to any independent witness nor it was deposited in Malkhana to assail the possibility of its misuse. To add, when the case property was produced before the court for the first time during examination of PW 2 [ENTITY], it was without any seal and out of 70 quarter bottles, 2 were broken and 29 were empty. No DD entry with respect to leakage or destruction of case property is proved on record. No explanation is rendered for production of the case property in such a condition and it leads to only one inference that the case property was tampered and its false implication on accused cannot be discarded. Further, all the relevant witnesses deposed that the case property was sealed with the seal of HC. However, the main witness PW 4 ASI [ENTITY] deposed that the case property was sealed with the seal of BL. PW 6 ASI [ENTITY] who is the IO of the case himself deposed that he sealed the case property with the seal of HC. No explanation has been rendered by the IO as to why he has used the seal of HC which is not his initial. Though it is not impossible but appears improbable that a person uses a seal of HC which is not his initial and thereby casts doubt over the prosecution version.
17. Most importantly in the present case, PW 2 [ENTITY], PW 4 ASI [ENTITY] and PW 6 ASI [ENTITY] deposed that IO seized the case property vide seizure memo Ex PW 2/B and thereafter prepared the rukka and got the FIR registered through [ENTITY]. It means that the seizure memo was prepared at the spot before the registration of FIR. Interestingly, the seizure memo Ex. PW 2/B bears the FIR number and case details in the same ink in which the documents is prepared which indicates that the FIR number was inserted while preparing the documents. The FIR is admittedly registered later after the preparation of this document. No explanation has been furnished on record as to how the FIR registration number has appeared on this document. It leads to only one inference either the document is prepared later or the FIR has been registered earlier in point of time. Both the situations create dents and leave unexplained holes in the prosecution story, the benefit of which must accrue to the accused. This court finds force from the following judgments on the same point of law:
[PRECEDENT] [PRECEDENT] [PRECEDENT] [PRECEDENT] [PRECEDENT] It would be appropriate to reproduce the relevant extract from the judgment titled as [PRECEDENT], as follows:
"Surprisingly, the secret information (Ex. P.W.7/B), the notice under [SECTION] of the Act (Ex. P.W. 4/A) and the Seizure Memo (Ex. P.W. 4/C) bear the number of the FIR (Ex. P.W.1/B). The number of the FIR (Ex. P.W.1/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 whatsoever as to under what circumstances number of FIR (Ex. P.W.1/B) has appeared on the top of the aforesaid documents, which are allegedly prepared on the spot before the registration of the FIR. This gives rise to two inferences that either the FIR (Ex. P.W.1/B) was recorded prior to the alleged recovery of contraband 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 given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
18. It is dogmatic in criminal jurisprudence that the prosecution is under the obligation to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is well settled legal proposition that the benefit of doubt goes in favour of the accused.
19. Considering the facts that no independent witness was cited or examined, DD entries not proved, case property not produced in intact condition and the appearance of case particulars on the seizure memo, when kept in juxtaposition to each other, shrouds clouds of suspicion over the prosecution version. The possibility of tempering with the case property cannot be discarded in these facts and circumstances.
20. Thus, this court is of the considered view that the benefit of doubt in the present case be given to the accused and he is entitled to be exonerated of the charges against him in the present case. The accused [ENTITY] is hereby acquitted for the offence U/[SECTION], [ACT]. Bail bonds are cancelled. Surety is discharged. Documents, if any be returned after cancellation of endorsement on the same. Case property be confiscated to State as per Rules.
21. File after necessary compliance be consigned to record room.
Announced in open court ( [ENTITY] ) 11th day of April, 2012 Metropolitan Magistrate, Rohini Courts: Delhi cr