FIR No.326/06 PS Anand Parbat State Vs. [ENTITY] IN THE COURT OF SHRI [ENTITY] ADDL. CHIEF METROPOLITAN MAGISTRATE, WEST TIS HAZARI COURTS, DELHI [CASE NUMBER] Police Station: Anand Parbat Under [SECTION] [ACT] (a) Case ID number : 02401R1209492006 (b) Date of commission of the : 27.09.2006 offence (c) The name of the complainant : Ct. [ENTITY] (d) The name of the accused, his : [ENTITY], S/o Sh. [ENTITY], R/o parentage and residence T41, Punjabi Basti, Baljeet 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 : 04.04.2013 (I) Judgment passed on : 06.04.2013 ([ENTITY]) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 1 of 5 FIR No.326/06 PS Anand Parbat State Vs. [ENTITY] JUDGMENT
CASE SET UP BY THE PROSECUTION:
1. On 27.09.2006 at around 06:30 PM at HR Road, near toilet, Anand Parbat, Delhi, accused was found in possession of one plastic katta containing 30 quarter bottles of illicit liquor, without any permit or license.
2. After completion of the investigation, police filed charge sheet against accused on 23.12.2006. Thereafter, on 25.01.2008, charges were framed against accused for offence under [SECTION] of [ACT], to which he pleaded not guilty and claimed trial.
3. Prosecution examined 4 witnesses in support of its case. Thereafter, on 21.03.2013, 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, PW3 [ENTITY] deposed that IO i.e. PW4 ASI [ENTITY] first of all recorded his statement and prepared rukka and thereafter he took rukka for registration of FIR at 07:45 PM and came on the spot at about 08:30/08:45 PM. He further ([ENTITY]) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 2 of 5 FIR No.326/06 PS Anand Parbat State Vs. [ENTITY] deposed that after registration of case, IO prepared seizure memo and took personal search of the accused and, thereafter, they left the spot at 09:30 PM. PW4 ASI [ENTITY] deposed that before sending rukka, he prepared site plan, seizure memo and took personal search of the accused. He further deposed that PW3 [ENTITY] left spot with rukka at 07:00 PM and after registration of FIR, he did not prepare any document. He further deposed that they left the spot after concluding the proceedings at 07:30 PM. On the other hand rukka Ex.PW4/A, shows that it was sent at 07:45 PM and FIR Ex.PW1/A, shows that it was registered at 07:55 PM. Arrest memo Ex.PW3/C, shows that accused was arrested at 07:15 PM. Thus, it becomes apparent that all aforesaid statement given by PW3 [ENTITY] and PW4 ASI [ENTITY] indicate towards an artificial proceedings taken place because arrest of the accused has been shown prior to registration of FIR and because there is no consistency in respect of other timings as deposed by PW3 [ENTITY] and PW4 ASI [ENTITY].
7. None of the witnesses explained that who called surety to the spot, where accused has been shown to be released on bail.
8. From the perusal of the evidence produced by the prosecution, I find that prosecution failed to produce the case property in order to prove it before the Court. During examination of PW3 [ENTITY], it was found that out of 29 quarters produced, 15 empty plastic quarters were produced before the Court. In [ENTITY] v. State of Haryana, 1997 (4) RCR (Criminal) 400, it was held that non ([ENTITY]) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 3 of 5 FIR No.326/06 PS Anand Parbat State Vs. [ENTITY] 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.
9. Thus, the prosecution has the onus to establish that case property could not be produced despite compliance of all duty cast upon officer in charge of police station. It also has to be established that the things were beyond control of officer in charge, due to which the case property could not be preserved in order to be produced before the Court during trial. The absence of production of complete case property supports the plea of the accused that nothing was recovered from him. Even Road Certificate was not proved by any of the PWs in the evidence.
10. Further more, it is admitted case that no public witness was joined during recovery proceedings. 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 ([ENTITY]) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 4 of 5 FIR No.326/06 PS Anand Parbat State Vs. [ENTITY] account of facts, to establish a bona fide reason for absence of independent witness in the proceedings. PW3 [ENTITY] and PW4 ASI [ENTITY] have given 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.
11.In view of my aforesaid observations and findings, I find that presumption of guilt of the accused can not be raised by this Court in absence of cogent and reliable evidence beyond doubt to establish the allegations made against the accused. Hence, accused is acquitted of all charges.
Judgment dictated and ([ENTITY]) pronounced in the open Court Addl. Chief Metropolitan Magistrate On this 06th day of April, 2013. West District, Tis Hazari Courts:Delhi (This judgment consists of five pages) ([ENTITY]) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no. 5 of 5