IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS NEW DELHI [ENTITY] Vs. : [ENTITY] FIR No. : 123/02 U/s : 61 of [ACT] PS : OIA Date of Institution : 04.01.2003 Date reserved for orders : 01.08.2012 Date of order : 01.08.2012 Brief particulars of the case A. Sl. no. of the case : 905/2/03 B. Offence complained of : u/s. 61 of [ACT] or proved C. Date of Offence : 06.03.2002 D. Name of the complainant : [ENTITY] Kumar No. 555/SD, PP Okhla PhaseII, PS OIA New Delhi.
E. Name of the accused : [ENTITY] s/o Sh. [ENTITY] r/o S16/234 New Sanjay Camp Colony PartII, Near C56/3, Okhla PhaseII, New Delhi. F. Plea of the accused : Pleaded not guilty G. Final order : Convicted H. Date of Order : 01.08.2012 Judgment
The case of the prosecution is that on 06.03.2002, at around 8 P.M, near the gate of Coal Sliding, New Delhi, within the jurisdiction of PSOkhla Industrial Area, accused [ENTITY] was found in possession of a white colour plastic cane containing illicit liquor equivalent to 10 bottles of 750 ML each. He was not possessing any permit or licence for possessing the liquor which was seized from him.
Brief facts as unfolded during the trial
2. On the above said date, PW1 [ENTITY], posted at PS Okhla Industrial Area (OIA), was on patrolling duty at Coal Sliding. [ENTITY] Kumar, who was also on patrolling duty met him and disclosed about a secret information received by him that a person carrying illicit liquor would be coming from the railway line side. A raiding party was constituted comprising of the abovesaid police officials. Threefour passersby were requested to join the raiding party but they all declined. Police officials and secret informer took position at the spot and at around 8 PM, accused was seen coming from the predisclosed side carrying a plastic cane on his shoulder. He was stopped on the beackoning of the secret informer. The plastic cane was checked and it was found containing illicit liquor equivalent to 10 bottles of 750 ML each. Samples were drawn and the remaining liquor was sealed in the same cane with the seal of 'JK'. Requisite documentation was done at the spot and the present FIR No. 123/02 under [SECTION] of the [ACT] was registered at PS O.I.A.
3. The sealed samples were sent for chemical analysis and on completion of the investigation, chargesheet was put to the Court. The copies of chargesheet were supplied to the accused and charge under [SECTION] of [ACT] was framed against him to which he pleaded not guilty and claimed trial.
Witnesses examined
4. The prosecution examined three witnesses. PW1 [ENTITY] (recovery witness) has supported the recovery. He mentioned that accused was carrying plastic cane on his shoulder and on checking it was found containing illicit liquor. He stated that illicit liquor was seized vide seizure memo Ex. PW 1/A and samples were sealed with the seal of 'JK'. PW2 [ENTITY] (police official who deposited the sample at the Excise Laboratory) has mentioned that on 30.06.2002, he deposited the duly sealed samples at the laboratory vide RC number 205/21/2002. PW3 [ENTITY] (Duty Officer) has deposed about the registration of FIR. The copy of the FIR is Ex. PW 3/A.
5. The FSL report was put to the accused under [SECTION] [ACT] He admitted the authenticity of the report which is Ex.P1.
Arguments
6. I have heard Ld. A.P.P. for [ENTITY] and Ld. Defence Counsel and carefully gone through the entire material available on record.
7. Ld. A.P.P. has contended that prosecution has proved its case beyond shadow of doubt. He has argued that all the material witnesses have entered into witness box and they have fully supported the case of prosecution. He has also argued that minor contradictions are bound to appear in any criminal matter and in the case in hand, there is no material contradiction which may create any doubt about the authenticity and veracity of the prosecution case and all the documents have been duly proved.
8. Ld. Defence Counsel has assailed the case of the prosecution. It has been argued that there is no justification as to why independent witnesses were not joined in investigation despite the fact that the police was having prior information. He has also argued that there are material contradictions and discrepancies and the illicit liquor had been planted upon the accused.
Brief reasons for the decision
9. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
10. One recovery witness has been examined viz [ENTITY] (PW1). He has supported the recovery. He has deposed that on 06.03.2002, while he was posted at PS. OIA, he apprehended the accused during the course of his partolling duty. He stated that [ENTITY] Kumar met him and shared a secret information received by him about the accused. He has mentioned that a raiding party was constituted. The witness has stated that he was a part of the raiding party. He stated that efforts were made to join public persons but nobody was interested and the public persons left the spot without disclosing their names and addresses. He has also deposed about the sealing part. He stated that samples were drawn and thereafter remaining quantity of illicit liquor was sealed with the seal of 'JK' and seal after use was handed over to him. He mentioned that he went to the police station and got the FIR registered. It is his version that further investigation was carried out by HC [ENTITY], who came to the spot alongwith him. This witness has not been cross examined by the accused. His testimony about the recovery part has gone unrebutted.
11. Ld. Defence Counsel has vehemently argued that accused should be acquitted as there is no public witness to recovery. Admittedly, no independent public witness has been joined in the investigation. Only police personnel are witnesses to the recovery, however, the said fact itself cannot be the sole ground for discarding their testimony. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons.
12. Let us peruse the record to see whether any sincere efforts were made by the police officials for joining public witness. I have perused the testimony of police witnesses. I am of the considered opinion that testimony of these witnesses cannot be brushed aside merely because no public persons have been joined in investigation. The provisions as provided under [SECTION] [ACT] are only directory and failure to comply with the said provisions will not invariably be fatal for the case of the prosecution. It has been held by the Hon'ble Supreme Court in [ENTITY] of Punjab Vs. Balbir Singh reported in AIR 1994 SC 1872 as under; "The scope of these two sections ([SECTION] and [SECTION] of [ACT]) have been examined in a number of cases. In Wasan Singh v. [ENTITY] (1981) 2 SCC this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Suder Singh v. [ENTITY] of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In [ENTITY] of Maharashtra v. P.K. Pathak, AIR SC 1224, it is held that absence of any independent person from the locality to witness the search does not affect the trial and the conviction of the accused under the [ACT]. In Radha Kishan v. [ENTITY] of Uttar Pradesh, 1963 SC 822, it is held that irregularity in a search would, however, cast a duty upon the Court to scrutinise the evidence regarding the search very carefully. In [PRECEDENT] it is held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions
This again depends on question whether the official as deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
13. On applying the abovesaid provisions to the present matter, it is evident that recovery of illicit liquor has been proved by prosecution. [ENTITY] has mentioned that efforts were made to join public witnesses but none agreed. There is no reason to doubt his testimony merely because he is police official. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. [ENTITY] (Delhi Administration) reported in AIR 2003 SC 1311 as under; " The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down "
14. In the light of the said judgment, the testimony of the police officials cannot be discarded. The recovery witness has mentioned that 34 passersby were requested to join the investigation but none of them agreed. The police officials have made efforts to join public persons in the investigations. It is a matter of common knowledge that public persons are not usually willing to participate in the investigation. The said fact can not be ignored while considering the explanation tendered by the police personnel for their failure to join an independent person. The explanation tendered by the recovery witness is plausible and his testimony cannot be brushed aside merely because of the fact that no public witness was joined in the investigation. Ct [ENTITY] has deposed that he deposited the sealed samples bearing the seal of 'JK' with the Excise Laboratory.
15. The arrest memo of accused [ENTITY] has been proved on record. It further lends support to the version of witnesses that accused was apprehended from the spot. The FIR has been registered promptly and there is no inordinate delay which may raise any doubt. The unrebutted testimony of [ENTITY] and the other material on record has established the charges against the accused. It is proved beyond reasonable doubt that on 06.03.2002, at around 8 pm, at Coal Sliding, accused [ENTITY] was found in possession of a plastic cane containing illicit liquor equivalent to 10 bottles of 750 ML each. Accused [ENTITY] accordingly stands convicted for the offence under [SECTION] of [ACT].
Announced in open Court ([ENTITY]) Dated 01.08.2012 Metropolitan Magistrate Saket Courts, Delhi