IN THE COURT OF SHRI NARESH KUMAR LAKA METROPOLITAN MAGISTRATE, TIS HAZARI COURTS, DELHI F.I.R. No. 153/03 Police Station: Rajouri Garden under [SECTION] [ACT] (a) ID number of the case : 02401R0529462003 (b) Date of commission of the : 01.03.2003 offence (c) The name of the complainant : Ct. [ENTITY] (d) The name of the accused : Banto W/o Sh. Harphool, person, his parentage and R/o F-365, Raghubir residence Nagar, Delhi. (e) The offence complained of or : Under [SECTION] proved [ACT]. (f) The plea of the accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 11.04.2012 (i) In all cases in which an appeal : A brief statement of the lies reason for the decision as follows: Police case was instituted on: 27.06.2003 Final arguments were advanced on: 11.04.2012 Judgment is announced on: 11.04.2012 FIR No. 153/03 PS Rajouri Garden State Vs. Banto Page 1 of 8 JUDGMENT
Brief facts: It is the case of prosecution are that on 01.03.2003 at about 1.10 PM at MCD Office Road, F Block, Raghubir Nagar, Delhi accused was found in possession of illicit liquor 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 report under [SECTION] [ACT] 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 her to which she pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution examined only three witnesses namely:
PW-1 [ENTITY] PW-2 [ENTITY] PW-3 [ENTITY]
4. Statement of accused under [SECTION] [ACT] was recorded. The accused did not examine any witness in her defence.
5. I have heard Assistant Public Prosecutor for the State and accused. File perused.
DEPOSITION OF PROSECUTION'S WITNESSES
6. The prosecution examined total three witnesses. PW 1 [ENTITY] is a police official who deposed that on 01.03.2003 he received a rukka brought by Ct. [ENTITY] sent by [ENTITY] and he recorded the FIR. The copy of the FIR is Ex. PW1/A.
7. PW2 Ct. [ENTITY] deposed that on 01.03.2003 he was on patrolling duty and on that day at about 01.00 PM he was present at F Block near DUSU Office and he noticed that one lady was coming from the side of Vishnu Garden having a bag containing illicit liquor in her possession hand and on suspicion, he stopped her. He further deposed that he informed the same to police station Rajouri Garden and IO [ENTITY] reached at the spot on his call and he handed over accused alongwith recovered bag to the IO and IO recorded his statement and the same is Ex. PW2/A. He further deposed that IO measured the contents of plastic cane and it was found 23 quarter bottles of illicit liquor and one bottle of illicit liquor was taken out as sample and remaining poured in the same plastic cane and the sample bottle and case property seized and sealed with the seal of 'SD' vide seizure memo Ex. PW2/B and seal after use was handed over to him. He further deposed that rukka was prepared by the IO and the same was handed over to him for the registration of case FIR and after registration of FIR, he came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. He further deposed that IO arrested the accused and the arrest memo is Ex. PW2/C. He also identified the case property Ex. P-1 to P-22 and bag is Ex. P-23 respectively.
8. PW3 [ENTITY] deposed that on 01.03.2003 on receipt of DD NO. 19B Ex. PW3/A he reached at F Block Road near MCD Office, Rajouri Garden, Delhi where Ct. [ENTITY] and Ct. [ENTITY] met him and produced before him one plastic katta containing illicit liquor quarters alongwith the accused and he recorded the statement of Ct. [ENTITY] and the same is already Ex. PW2/A. He further deposed that IO measured the contents of plastic cane and it was found 23 quarter bottles of illicit liquor and one bottle of illicit liquor was taken out as sample and remaining were kept in the same bag and the result is Ex. PW3/B. The plastic katta and the sample bottle and case property seized and sealed with the seal of 'SD' and the Excise Form is Ex. PW3/C. He prepared rukka Ex. PW3/D and site plan Ex. PW3/E. He also identified the case property Ex. P-1 to P-22 and bag is Ex. P-23 respectively.
DEFENCE OF THE ACCUSED
9. In the statement recorded under [SECTION] [ACT], the accused denied all the entire incriminating evidence put to her and stated she is innocent and she was called by the police to the police station for conducting some enquiry and thereafter she was falsely implicated in this case and the case property was planted on her.
APPRECIATION OF EVIDENCE AND REASONS FOR DECISION
10. In the list of witnesses, the prosecution cited total six witnesses. The case pertains to the year 2003 and it was more than 9 years' old case. A letter 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]." Under these circumstances, the prosecution's evidence was closed.
11. At the time of examination of PW3 who is the most important recovery witness, it was observed by the court that "All the quarter bottels are completely empty and there is no case particular found mentioned on the bag". 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 liquour 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 sealing and 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. On this account, the accused is entitled to benefit of doubt.
12. In the statement of accused recorded under [SECTION] [ACT], accused took the defence that she is innocent and she was called by the police to the police station for conducting some enquiry and thereafter she was falsely implicated in this case and the case property was planted on her. The counsel for the accused further argued the prosecution has not proved the rukka and the site plan as the I.O. has not been examined by the prosecution.
13. The prosecution has also not proved on record the departure and arrival entry of the police official/recovery witnesses. In this regard, reliance can be placed on the case of [PRECEDENT] wherein it has been observed "that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
14. The accused also took the defence that she is innocent and she was called by the police to the police station for conducting some enquiry and thereafter she was falsely implicated in this case and the case property was planted on her. In the present case, the recovered illicit liquor is one plastic cane 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.
15. Keeping in view the background of the case, defence of the accused, small quantity of the liquor (22 bottles), and not- following 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."
16. 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. As per [SECTION], the bail bonds are extended till the period of six with the direction that the accused and surety shall be bound to appear before the Appellate Court as and when such court issues notice in respect of such appeal or petition filed against this judgment. File be consigned to record room.
Announced in the open court on 11.04.2012 ([ENTITY]) Metropolitan Magistrate, Tis Hazari Courts, Delhi