FIR No.232/04 PS [ENTITY] State vs. [ENTITY] IN THE COURT OF SHRI [ENTITY] ADDL. CHIEF METROPOLITAN MAGISTRATE, WEST TIS HAZARI COURTS, DELHI [CASE NUMBER] Police Station: [ENTITY] Under [SECTION] [ACT] (a) Case ID number : 02401R6217762004 (b) Date of commission of the : 04.09.2004 offence (c) The name of the complainant : [ENTITY] (d) The name of the accused, his : [ENTITY], s/o.Sh.Sukhi Ram, parentage and residence r/o.H.No.TC154, Pandav Nagar, Patel Nagar, Delhi (e) The offence complained of : Under [SECTION] [ACT]. (f ) The plea of the accused : Pleaded not guilty (g) The final order : Acquitted (h) Final argument concluded on : 29.07.2013 (I) Judgment passed on : 06.08.2013 ([ENTITY]) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi FIR No.232/04 PS [ENTITY] State vs. [ENTITY] JUDGMENT
CASE SET UP BY THE PROSECUTION:
1. On 04.09.2004, at around 10:30 am at main road, Nehru Nagar, [ENTITY], Delhi, accused was found in possession of 98 quarter bottles of illicit liquor, without any permit or license.
2. After completion of the investigation, police filed charge sheet against accused on 02.11.2004. Thereafter, on 17.10.2008, charges were framed against accused for offence under [SECTION] of [ACT], to which he pleaded not guilty and claimed trial.
3. Prosecution examined 5 witnesses in support of its case. Thereafter, on 22.07.2013, statement of accused was recorded under [SECTION] [ACT] Accused did not lead any evidence in his defence. Final arguments were made by both the parties.
4. I have heard the rival contentions and perused the case file.
PLEA OF DEFENCE.
5. Accused has taken plea that he was falsely implicated in this case and nothing was recovered as alleged.
FINDINGS :
6. In this case, PW1 was the complainant who deposed that on 04.09.04, he was on patrolling duty. When he reached at gali no.6, Nehru Nagar, he saw one person coming from Zakhira Flyover side on a scooter bearing no.DL4SQ 6300. On suspicion, he stopped him and checked the scooter. He found quarter bottles of Mastana ([ENTITY]) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi FIR No.232/04 PS [ENTITY] State vs. [ENTITY] Masaledar Deshi Sharab with label of Sale in Haryana only, in the front and left side diggi of the scooter. He informed Duty Officer at P.S and after some time [ENTITY]/PW5 came on the spot. PW5 requested 45 passersby to join the investigation but none agreed. He checked the diggi of the scooter and found 98 plastic quarter bottles of illicit liquor. He took the case property and the scooter in police possession after taking out one sample quarter bottle. Rest of the bottles were kept in a plastic bag and all of them were sealed with the seal of NS. I.O filed Form M29 and prepared [ENTITY]. PW1 took [ENTITY] to P.S for registration of FIR and came back on the spot along with copy of FIR. I.O prepared site plan at the instance of PW1 and arrested the accused.
7. During examination of PW1, case property was produced with illegible seal. DD no.39B dated 16.10.2012 was produced and 84 filled bottles and 13 empty quarter bottles were taken out. In his crossexamination, he deposed that PW5 came on a scooter. He further deposed that I.O asked STD Booth owner and other shopkeepers to join the investigation but they refused.
8. PW2 was MHC(M), who received one sealed pullanda, one sample and Form M29 along with one scooter bearing no.DL4SQ 6300 on 04.09.04. PW3 was Duty Officer who registered FIR on 04.09.2004. PW4 had examined the sample through his analyst [ENTITY]. PW5 was the I.O, who also deposed on the same lines as stated by PW1. In his crossexamination, he could not remember the mode of conveyance used by him. He again said that he had ([ENTITY]) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi FIR No.232/04 PS [ENTITY] State vs. [ENTITY] taken a lift to reach the spot. He could not remember that whether he had asked any public person to join the proceeding. He denied the suggestion that accused was falsely implicated or that case property was planted upon him.
9. In this case, PW1 claimed that he was on patrolling duty but he did not prove any departure entry on the record to show that he was actually in the area. The case property were not completely produced before the court and the seal was illegible.
10. Moreover, the case property was not maintained in intact condition as 13 quarter bottles were found empty during the production of case property in the Court. None of these witnesses gave any explanation about such condition of the case property, which could be acceptable. In [PRECEDENT], it was held that non production of case property does not vitiate the trial, however, if prejudice is caused then benefit should go to the accused. It was further held that [SECTION] of [ACT] fixed responsibility of officer in charge of police station to examine the property twice a month. The Court also referred to [SECTION] to say that it is duty of the officer in charge to maintain the property till final order passed.
11. The illegible seal and nonproduction of complete case property caste severe questions over the alleged recovery proceedings.
12. The police team was under duty to join public witnesses in order to maintain the transparency. The statement given by PW1 and PW5 are contradictory in respect of any request made to STD owner or ([ENTITY]) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi FIR No.232/04 PS [ENTITY] State vs. [ENTITY] shopkeepers to join the recovery proceedings. Though PW1 allegedly made call from the STD and such persons were admittedly available there
13. In [PRECEDENT], it was held that "Prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo type statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness. This reflects adversely on the prosecution version." In the present case, I find that none of the PWs has given any plausible and reasonable account of facts, to establish a bona fide reason for absence of independent witness in the proceedings. PW1 [ENTITY] gave the stereo type statement that they requested public persons to join the proceedings, but none obliged. Therefore, I do find that prosecution has failed to establish a doubt free investigation/ recovery proceedings.
14. The doubtful recovery proceedings cannot be relied upon in order to raise presumption of guilt of the accused for alleged offence. Hence, accused [ENTITY] is acquitted of the charges leveled against him u/[SECTION] of [ACT].
Judgment dictated and ([ENTITY]) pronounced in the open Court Addl. Chief Metropolitan Magistrate On this 6th day of August, 2013. West District, Tis Hazari Courts:Delhi (This judgment consists of 5 pages) ([ENTITY]) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi