IN THE COURT OF SHRI NARESH KUMAR LAKA METROPOLITAN MAGISTRATE, TIS HAZARI COURTS, DELHI F.I.R. No.940/04 Police Station: Rajouri Garden under [SECTION] [ACT] (a) ID number of the case : 02401R1004482005 (b) Date of commission of the : 29.11.2004 offence (c) The name of the complainant : Ct. Pawan Kumar (d) The name of the accused : [ENTITY] S/o Sh. Mansha person, his parentage and Ram R/o D266, Raghubir residence 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) The date of such order : 05.11.12 (i) In all cases in which an appeal : A brief statement of the lies reason for the decision as follows: Challan was filed on: 05.10.05 FIR No.940/04 PS Rajouri Garden State vs. [ENTITY] Page 1 of 7 Final arguments were advanced on: 05.11.2012 Judgment is announced on: 05.11.2012 JUDGMENT
Brief Facts: It is the case of prosecution that on 29.11.04 at about 9.50 pm at D Block, Near Masjid Raghubir Nagar, Delhi, accused was found in possession of one plastic can containing 10 bottles, 750 ml each of illicit liquor without any permit and license in contravention of provisions of [ACT]. After completion of investigation which includes seizure of case property, sealing of case property, arrest of accused, sending the samples of illicit liquor to FSL, etc. the final challan was filed alleging offence under [SECTION] of the [ACT].
2. On appearance of the accused person, a charge for the offence under [SECTION] [ACT] was framed against him to which he pleaded not guilty and claimed trial.
3. Statement of accused under [SECTION] [ACT] was recorded. The accused did not examine any witness in his defence.
4. I have heard Assistant Public Prosecutor for the State and accused. File perused.
DEPOSITION OF PROSECUTION'S WITNESSES
5. PW1 [ENTITY] is the police official and also complainant who deposed that on 29.11.2004, he was posted at PS Rajouri Garden as Constable. On that day, he was on patrolling duty and at about 9.50 PM, he reached at D Block Masjid, Raghubir Nagar. he saw that a person was coming from the side of gali having a plastic can in his hand. On seeing him, he turned back. On suspicion, he apprehended that person and checked the can after opening it. The smell of liquor was coming out of it. He made a call to the PS. IO HC [ENTITY] came at the spot. He handed over the accused and the recovered can to the IO (correctly identified). IO asked 34 public persons to join the investigation but none agreed. He brought one bucket and one bottle on the direction of IO from a tea shop. Upon measurement, the contents of the can came out to be 10 bottles. One bottle was separated as sample and remaining 9 bottles were decanted in the said plastic can. Both were sealed with the seal of 'S'. IO filled the form M29. The seal after use was handed over to him. IO prepared the seizure memo Ex. PW1/A. IO recorded his statement which is Ex. PW1/B and prepared the rukka and handed over the same to him for registration of FIR. He went to PS and got the FIR registered and returned back at the spot and handed over the copy of FIR and rukka to IO. IO prepared the site plan at his instance which is Ex. PW1/C. IO arrested the accused vide arrest memo Ex. PW1/D. Personal search of the accused was also conducted vide personal search memo Ex. PW1/E. He identified the case property. Witness identified the case property correctly and the case property is Ex. P1.
DEFENCE OF THE ACCUSED
6. In the statement recorded under [SECTION] [ACT], the accused denied the entire incriminating evidence put to him stating that he was called from his house by the police for certain inquiries and thereafter, he was falsely implicated in the present case.
APPRECIATION OF EVIDENCE AND REASONS FOR DECISION
7. In the list of witnesses, the prosecution cited total five witnesses out of which it examined only one witness. The case pertains to the year 1993. A letter bearing no. 423432/DHC/G X/Instructions/2012 dated 25.01.2012 is received from the Hon'ble High Court of Delhi enclosing the views of Hon'ble Chief Justice of India to achieve zero level pendency for the cases which are more than five years old. In the celebrated case of [PRECEDENT], the full bench of Hon'ble Supreme Court held "Though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of [SECTION]. Speedy trial which means reasonably expeditious trial is an integral part of the fundamental right to life and liberty enshrined in [SECTION]. At the time of examination of PW1 [ENTITY] (also complainant), it was observed that the case property was not proved and no useful purpose would be served by examining the other witnesses. Accordingly, in view of above facts, the prosecution's evidence was closed.
8. At the time of examination of PW1 [ENTITY], it was observed by the court that MHC(M) produced one plastic can sealed with illegible seal and lid of the can can easily be removed without disturbing the seal. For proving the offence of possession of illicit liquor, it is incumbent upon the prosecution to establish the identity of the recovered illicit liquor from the possession of the accused and for that purpose the prosecution must prove that the liquor which is recovered from the accused is the same one. As per law and practice, the contraband/illicit liquor is required to be sealed with the seal of seizing officer by writing the case particulars on it in order to avoid any kind of tampering with the recovered article. Apart from it, the upkeep and safety of the case property is also of utmost importance till the same is proved in the court of law. But from the manner of production of case property as observed above, it is not proved whether the case property produced in court is the same one which was recovered from the possession of accused, as alleged. As seal on the case property is illegible seal and moreover, lid of the can can easily be removed without disturbing the seal, it left all the option open to change or alter the case property easily. On this account, the accused is entitled to benefit of doubt.
9. The accused also took the defence that he is innocent and he is falsely implicated in the present case. In the present case, the recovered illicit liquor is one plastic can and from the amount of its small quantity, the lacuna in the prosecution's evidence brought on record and the defence of the accused, the possibility of false plantation of such a small quantity on the accused cannot be completely ruled out.
10. In the above background of the case, defence of the accused, small quantity of the liquor and notfollowing the established procedure of law by the investigating agency, as discussed above, I am of the opinion that the accused is entitled to the benefit of doubt. In this regard, reliance can be placed on the case of [PRECEDENT], the Hon'ble Supreme Court illustrated the doctrine of benefit of doubt in the words "The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
11. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, I hold that the prosecution has failed to prove the alleged offence under [SECTION] of the [ACT] against the accused. The accused is accordingly acquitted for the said offence.
12. File be consigned to record room.
Announced in the open court on 05.11.2012 ([ENTITY]) Metropolitan Magistrate, Tis Hazari Courts, Delhi