FIR No. 167/08 PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] IN THE COURT OF SH. [ENTITY] MM4(NORTH WEST) ROHINI COURTS DELHI FIR No. 167/08 PS: [ENTITY] U/[SECTION] [ACT] State Vs. [ENTITY] Case ID No. 02404R0178312008 Date of Institution of case : 12.09.2008 Date of Judgment : 29.01.2015 JUDGMENT:
a) Date of offence : 19.07.2008 b) Offence complained of : U/[SECTION] [ACT] c) Name of Accused, her : [ENTITY], parentage & address W/o Sh. [ENTITY] R/o Jhuggi no.C-4, [ENTITY] , Delhi. d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY]
BRIEF FACTS AND REASONS FOR DECISION BRIEF FACTS AND REASONS FOR DECISION:-
1. In the present case, accused [ENTITY] was put to the trial for the offence punishable U/[SECTION] [ACT] on the allegations that on 19.07.2008, at 5:55 p.m at Jhuggi no. C-4, [ENTITY], Delhi, accused was found in possession of 250 quarter bottles of [ENTITY] without any permit or valid license. After the usual investigation, the charge sheet for the offence punishable U/[SECTION] [ACT] was prepared against the accused person.
2. The aforesaid charge sheet was filed before the court on 12.09.2008, whereupon the cognizance of the offence was taken against the accused.
3. Thereafter, the provision of [SECTION] [ACT] was complied with.
4. After hearing the arguments, the accused was charged for the alleged commission of the offence U/[SECTION] [ACT] to which the accused pleaded "Not Guilty" and claimed trial. Accordingly, the case was fixed for prosecution evidence.
5. During the course of the trial prosecution has examined 4 witnesses PW-1 [ENTITY] [ENTITY], PW-2 [ENTITY], PW-3 [ENTITY], PW-4 [ENTITY] to substantiate the accusation.
PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY]
6. Complainant PW-1 [ENTITY] was on patrolling duty on 19.07.08 when at about 5:45 p.m one secret informer met him who informed that one lady namely [ENTITY] was sitting in front of her jhuggi with illicit liquor and the complainant along with the informer reached outside her Jhuggi where they found that one lady was indeed sitting with liquor contained in cartons. The complainant checked the cartons and found that there were quarter bottles of country made liquor in it. The complainant gave information regarding the same to the PS [ENTITY] telephonically upon which HC [ENTITY] came at the spot. The IO checked the liquor and found that every box was containing 50 quarter bottles of Country made liquor namely [ENTITY]. One quarter bottle from every cardboard box was taken out as sample and sealed with the seal of SS and each cardboard box was wrapped with cloth which was also sealed with the seal of SS. The case property was seized vide seizure memo vide Ex PW1/A and the IO recorded the statement of the complainant exhibited Ex PW1/B. The seal after use was handed over to the complainant PW-1 by the IO. The IO filled up the form M-29 at the spot and also affixed the seal of SS. IO prepared the rukka Ex. PW-1/B and got the FIR registered through the complainant PW-1. The complainant returned to the spot after getting the FIR registered. The accused was arrested vide arrest memo Ex PW-1/C and her personal search was conducted by Lady [ENTITY] PW-4 vide personal search memo Ex PW-1/D. The IO prepared site plan of the place of occurrence at the instance of the complainant PW-1. Thereafter, the case property was deposited in the malkhana and the same is Ex. P-1. The IO [ENTITY] got the sample PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] and excise form deposited with Excise laboratory through [ENTITY] Ajeet Pal vide road certificate no. 27/21/08 and the IO collected the Excise results.
7. In the present case, prosecution has produced and examined four witnesses. The testimony of PW1, PW2 and PW3 who proved the factum of deposition of the Form M-29 alongwith the sample to the Excise laboratory and the FIR ExPW3/A is of formal nature but testimony of PW-1 and PW-4 is material one being the witnesses in whose presence entire proceedings were conducted at the spot as alleged alongwith recovery of the illicit liquor as deposed by PWs. It is deposed by PW-1 and PW-4 that the IO asked to four-five public persons to join the investigation but none agreed and left without disclosing their names and addresses. PW-4 deposed during the cross examination that some persons were present at the spot, that no notice was given to the persons who refused to join the investigation despite being asked by the IO to join the investigation, that he does not remember the brand of the petty, that [ENTITY] [ENTITY] went to the PS for registration of FIR at 07.50 pm, that IO prepared the documents sometimes while sitting and sometimes while standing at the spot and that she left the spot after recording of her statement. PW-4 denied the suggestions that no recovery of liquor was affected from the possession of the accused or that all the documents were prepared while sitting in the PS or that the accused has been falsely implicated in the present case.
8. Thereafter, Prosecution Evidence was closed as all the material PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] witnesses were examined and thereafter statement of the accused was recorded wherein all the incriminating circumstances appearing in evidence were put to the accused to which the accused replied that she has been falsely implicated in the present case by the police officials. The accused chose not to lead defense evidence.
9. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused that she has been falsely implicated in the present case, that nothing was recovered from her possession and that the alleged recovery has been planted upon the accused at the police station
10. I have heard the Ld. APP for the state as well the defence counsel.
11. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. It is evident from the testimony of PW-1, PW-4 and the record that accused was apprehended alongwith the alleged liquor at public place and public persons were asked to join the investigation who did not agree still police officials neither served any notice upon them to initiate prosecution for refusal nor recorded their names or addresses to show that the police officials made bonafide efforts to persuade the public persons to join the investigation. It is PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] apparent from the perusal of rukka and the testimony of PW1 that the seal after the use was handed over to PW-1 by IO [ENTITY] who both are police officials and were posted in the same police station on the relevant date and time and not to any independent witness which makes it highly probable that the entire proceedings were conducted at the police station, that the case property was tampered with and that nothing was recovered from the accused at the spot. It is also pertinent to mention that prosecution has failed to produce any documentary evidence or the DD entries made to show that they were on patrolling duty. The prosecution witnesses have not even given the DD numbers vide which they left the police station for patrolling and investigating the present case. These omissions on the part of the prosecution create doubt on the version that the accused was apprehended with the alleged liquor at the spot by the said PWs. Further, the testimony of PW-1 and PW-4, the record and the perusal of rukka shows that the seizure memo Ex. PW-1/A and Form M-29 were prepared prior to the dispatch of the Rukka and registration of the FIR. However, perusal of the said documents clearly shows that the FIR number and other particulars of the present case are mentioned on the said documents. No explanation has come from the prosecution as to how the FIR number surfaced on those documents which were prepared prior to the registration of the case. This fact casts a doubt upon the testimony of PWs because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
These failures on the part of prosecution create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused. In support of aforesaid observations reliance may be placed on the following case laws:-
In a case law reported as [PRECEDENT], Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the [ACT]".
In a case law reported as [PRECEDENT], the Hon'ble Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] these facts taken together make the prosecution case highly doubtful".
In case law reported as [PRECEDENT], Hon'ble Punjab & Haryana High Court observed as under:
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks credibility, the benefit of doubt necessarily has to go to the accused".
6. In the present case, the State examined two witnesses namely, [ENTITY] ASI who appeared as PW1 and [ENTITY] PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] 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 service of public witness. This reflects adversely on the prosecution version."
In case law [PRECEDENT] it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt.
They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
12. Being guided by abovesaid case laws, it can be said that the search, PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal. These omissions, illegalities and anomalies further create grave doubts on the prosecution's version of recovery of alleged country made liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
13. In the present facts and circumstances, it is pertinent to mention the judgment titled as "[PRECEDENT] wherein the Hon'ble Supreme Court held:-
" In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution "
PS: [ENTITY] U/[SECTION] Excise State Vs. [ENTITY] The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as [PRECEDENT].
14. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, accused [ENTITY] W/o Sh. [ENTITY] is acquitted of the charge leveled against her. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Case property be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to the Record Room after due compliance.
Announced in the Open Court ([ENTITY]) today i.e on 29.01.2015 MM-04/North West, Rohini Courts:DELHI 29.01.2015