1 IN THE COURT OF SH. VIVEK KUMAR GULIA METROPOLITAN MAGISTRATE - 1 (EAST) KARKARDOOMA COURTS, DELHI In the matter of: State Vs. [ENTITY] FIR NO. 114/05 PS Gandhi Nagar 1. Sr. No. of the case : 117/3 2. Date of institution : 18/05/2005 3. Name of the complainant : Constable [ENTITY] 4. Date of commission of offence: 23.03.2005 5. Name of accused : [ENTITY] S/o. Sh. [ENTITY], R/o. House no. 189, Gali no.6, Ghas Mandi, Gandhi Nagar, Delhi. 6. Offence complained of : [SECTION] of [ACT] 7. Plea of guilt : Accused pleaded not guilty 8. Date of reserving the judgment: 20.04.2011 9. Final order : Acquittal 10. Date of such judgment : 27.04.2011 JUDGMENT
1. The outlines of the prosecution case are these. On 23.03.2005, at about 9.45 p.m., in front of Sai Baba Mandir, Pusta Road, Gandhi Nagar, Delhi, constable [ENTITY], while on patrolling duty, apprehended the accused who was carrying plastic can of 5 liters containing liquor. In the meanwhile, IO [ENTITY] arrived at the spot Page no. 1 of 5 State vs. [ENTITY]; FIR No. 114/05 and took out one quarter bottle liquor from the liquor can as sample. Liquor was seized, form M29 was filled up, a case was registered and accused was arrested. After completion of investigation, the accused was chargesheeted and summoned for the trial.
2. In light of the above stated facts and proceedings, vide order dt. 06.01.2007, the court of Dr. [ENTITY], the then MM, framed charge u/[SECTION] of the [ACT] (in short "the Act"), to which the accused pleaded not guilty and claimed trial.
3. Four witnesses were produced for proving the prosecution case. 3A. PW1, HC [ENTITY], deposed that he obtained the sample quarter bottle from the MHC(M) vide RC NO. 55/21 and deposited the same at excise laboratory.
3B. PW2, [ENTITY], reiterated the facts mentioned in the complaint Ex.PW2/B, on the basis of which FIR was recorded. Apart from that he mentioned that the can was sealed with the seal of BS vide seizure memo Ex.PW2/A. After the registration of FIR accused was arrested vide memo Ex.PW2/C and personally searched vide memo Ex.PW2/D. Further he correctly identified the accused and liquor can Ex.P1 in the court.
3C. PW3, [ENTITY], mentioned that on 23.03.2005, at about 9.45 p.m., when he reached in front of Sai Baba Mandir, Pushta Road, Gandhi Nagar, constable [ENTITY] handed over the accused [ENTITY] and a can containing liquor to him. Thereafter he took the sample and filled up the excise form. Thereafter liquor was seized and rukka was handed over to constable [ENTITY]. After registration of FIR, site plan Ex.PW3/A was prepared. Thereafter accused was arrested and personally searched. Further witness correctly identified the accused as well as the liquor Ex.P1 in the court.
3D. PW4, ASI [ENTITY], deposed that case property of the Page no. 2 of 5 State vs. [ENTITY]; FIR No. 114/05
present case (5 ltr. plastic can containing liquor) sealed with the seal of BS and form M29 was deposited in the malkhana on 23.03.2005. Further deposed that the sample and form M29 were sent to Excise Lab vide RC no. 55/21 dt. 05.04.2005. The relevant entry of the register no. 19 Ex.PW4/A was also filed.
4. After the conclusion of prosecution evidence, the accused was examined as per provisions of [SECTION] of [ACT] When all the incriminating evidence on record was read over to accused to know his explanation, it is replied that he used to ply rickshaw and was falsely implicated by some police officials. However, he opted not to lead evidence in his defence.
5. I have heard the State through Learned Assistant Public Prosecutor Sh. [ENTITY] and Learned defence counsel, Sh. [ENTITY].
6. Ld. APP for the State argued that the testimony of the recovery witness PW2 fully supports the prosecution case and therefore the recovery of the illicit liquor Ex.P1 from the possession of the accused can not be doubted. Whereas, Learned defence counsel had contended that despite the availability of public persons on the spot, no independent witness was joined during recovery and further there are number of lacunas in the prosecution case, thereby pushing the case in the shadow of doubts.
7. It is observed that the case of the prosecution is entirely based on the testimony of PW2 who is a police official. It is evident that no public witness was joined though the liquor was allegedly recovered from the accused from a public place. It is a well settled principle of law that despite the availability of public witnesses, if no independent witness has Page no. 3 of 5 State vs. [ENTITY]; FIR No. 114/05 been joined during investigation or at the time of recovery, then the testimony of police official has to be scrutinized carefully. The Allahabad High Court in the case titled as [PRECEDENT], has put the legal position in a nutshell as follows :
"A search is not vitiated by noncompliance with the provisions of [SECTION] of the [ACT], a breach of which only put the Court on guard and incline it to scrutinize evidence of witnesses more closely. The effect of such irregularity will, however, depend on the circumstances of each particular case. But a search carried out with the aid of witnesses available at the time, even though they may not be independent, cannot be characterized to be in any way improper and cannot, in any case, have the effect of sweeping away the results of such a search."
8. Since all the prosecution witnesses are police officials, their testimony is to be scrutinized carefully. It is observed that PW2 & PW3 mentioned that one quarter bottle liquor was taken out as sample but no explanation has been furnished as to from where that bottle was arranged at about 10 o'clock in the night. Moreover, there is no material on record to show that recovery witness was on patrolling duty in the area on the date of incident.
9. Further it can be seen that FIR number has been mentioned on the seizure memo Ex.PW2/A and form M29 though FIR was not registered at that time. No explanation has been given by the prosecution side as to how the FIR number appeared on the documents which were prepared before registration of the case. This flaw is sufficient to raise suspicion on recovery of liquor from the accused. The similar issue was discussed by High Court of Delhi in re: [PRECEDENT], with following Page no. 4 of 5 State vs. [ENTITY]; FIR No. 114/05 observations :
"In the normal circumstances, the FIR number should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the FIR no. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
10. In view of the above mentioned circumstances, it is held that the prosecution has failed to prove its case beyond reasonable doubts. In the result, accused deserves acquittal in respect of the charge framed in the case in hand. Ordered accordingly.
Announced in the open court ( [ENTITY] ) On 27.04.2011 MMI (East) (Total five pages) Karkardooma Courts,Delhi. Page no. 5 of 5 State vs. [ENTITY]; FIR No. 114/05 Page no. 6 of 5 State vs. [ENTITY]; FIR No. 114/05