IN THE COURT OF SHRI [ENTITY], METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI FIR No. : 156/08 P.S. : Aman Vihar Unique ID No. : 02404R0240152010 State Vs. [ENTITY] S/o [ENTITY] R/o House No. 17/1, Rama Vihar, Delhi Date of institution of case : 25.10.2008 Date of reserving the judgment : Not reserved. Date of pronouncement of judgment : 23.08.2013 JUDGMENT
1. S. No. of the Case: 4/3/08 2. Date of Commission of Offence: 30.04.2008 3. Date of institution of the case: 25.10.2008 4. Name of the complainant: Ct. [ENTITY]. 5. Name of the accused: [ENTITY] S/o [ENTITY] 6. Offence complained or proved: 61/1/14 [ACT] 7. Plea of Accused : "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 23.08.2013 FIR No. 156/08 PS Aman Vihar Page1 of 10 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Succinctly, the facts of the case as per prosecution are that on 30.04.2008 at about 3.40 p.m. on Main Road, behind Balalji mandir, A-Block, Rama Vihar Delhi accused [ENTITY] was found in possession of one plastic katta containing 20 bottles, each of liquor without any permit or licence. Accused was arrested, case property was deposited in malkhana and upon completion of investigation challan was prepared and filed in court for trial.
2. The copies of charge sheet and annexed documents were supplied to accused in due compliance of [SECTION] [ACT]
3. Prima facie case having been made out, charge for offence U/[SECTION] of [ACT] was framed against the accused on 03.05.2010 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined the following witnesses:-
PW-1 [ENTITY] deposed that on 30.08.2008 he was posted as duty officer and at about 5.30 p.m. he received rukka through [ENTITY] sent by [ENTITY]. He further deposed that on the basis of which he recorded FIR Ex. PW 1/A and made endorsement on the rukka Ex. PW 1/B and after registration of the FIR he handed over the copy of FIR and original rukka to [ENTITY].
PW-2 Ct. [ENTITY] deposed that on 30.04.2008 he was posted as DD Writer At about 3.40 p.m. [ENTITY] gave information on the basis of which he recorded DD No. 33 B , copy of same is Ex. PW 2/A. He further deposed that thereafter DD was marked to HC [ENTITY] for investigation.
FIR No. 156/08 PS Aman Vihar Page2 of 10 PW 3 [ENTITY] deposed that on 30.04.2008 [ENTITY] informed duty officer that one person has been apprehended alongwith the illicit liquor at A Block, near Rama Vihar. On receipt of DD no. 33 B. He went to the spot where [ENTITY] handed over the accused alongwith the plastic katta containing illicit liquor. The plastic katta was found to contain 20 bottles labelled with [ENTITY] no.
1. He asked 3/4 passers by to join the investigation but none agreed and left the spot without disclosing their details. He recorded the statement of Ct. [ENTITY] Ex. PW 3/G, prepared rukka Ex. PW 3/H and handed over to [ENTITY] for registration of FIR. [ENTITY] returned back to the spot after some time and handed over the original rukka alongwith the copy of FIR Ex. PW 1/A. He separated one bottle as a sample from the katta. The sample and the remaining case property in the katta was sealed with the seal of [ENTITY] and were seized vide seizure memo Ex. PW 3/A. He filled excise form M-29 Ex. PW 3/B . Seal after use was handed over to [ENTITY]. The accused was arrested vide arrest memo Ex. PW 3/C and his personal search was conducted vide memo Ex. PW 3/D. Thereafter he prepared the site plan Ex. PW 3/E. He further deposed that thereafter the accused was released on bail. The case property and the sample was deposited in the malkhana, PS Aman Vihar. He further deposed that on 07.05.2008 the sample was sent to the Excise Department through [ENTITY] and the excise result is Ex. PW 3/F. The said witness has identified the case property as Ex. P-1.
PW 4 [ENTITY] deposed that on 30.04.2008 at about 1.40 p.m. one person was coming from the side of Rajiv Nagar and was carrying plastic katta on his right shoulder. On seeing him, they suddenly turned back and tried to move away. On being suspicious he immediately apprehended him and asked about the plastic katta but he did not give the satisfactory answer. On being suspicious when FIR No. 156/08 PS Aman Vihar Page3 of 10 he checked the plastic katta and it was found to contain bottles of illicit liquor. He further deposed that he immediately informed in the police station and [ENTITY] reached at the spot. He handed over the accused alongwith the recovered plastic katta to him. IO recorded his statement Ex. PW 3/G. IO requested public persons to join the investigation, but none of them agreed. Without waisting the time IO checked the plastic katta and found to contain 20 bottles of illicit liquor printed with [ENTITY] no. 1. IO separated two bottles as sample and remaining bottles were kept into the same plastic katta and the samples were sealed with the seal of [ENTITY]. IO prepared the seizure memo Ex. PW 3/A. After that IO prepared the rukka already Ex. PW 3/H and got the FIR registered through him. Then IO arrested the accused vide arrest memo Ex. PW 3/C. The personal search was conducted vide memo Ex. PW 3/D. Case property was deposited in Malkhana and accused was released on bail . The said witness has identified the case property Ex. P-1.
5. Thereafter accused was examined U/[SECTION]/[SECTION] [ACT] on 22.08.2013 wherein he denied all the incriminating material against him which has come on record and claimed false implication. He opted not to lead defence evidence.
6. In the present case, it is the case of the prosecution that on 30.04.2008 at about 3.40 p.m. on Main Road, behind Balalji mandir, A-Block, Rama Vihar Delhi accused was found in possession of one plastic katta containing 20 bottled, each of liquor . To establish the guilt of the accused, the prosecution was required to prove recovery of illicit liquor from the accused beyond reasonable doubts.
7. Evidently, no public witness to the recovery of the liquor has been cited FIR No. 156/08 PS Aman Vihar Page4 of 10 in the list of witnesses. The place of recovery was at main road, behind Balaji Mandir at 3.40 p.m. It is not the case of the prosecution that no public person was present at or near the spot of recovery. No sincere efforts by the IO are seen on the file for joining the public witnesses. It is well settled proposition that non joining of public witness shrouds doubt over the fairness of the investigation by police. Even [SECTION] casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. The police officer is entrusted with ample power under the provisions of [ACT] to initiate proceedings u/[SECTION] [ACT] if any person does not cooperate with him despite giving notice. In the case of [PRECEDENT], it has been held as under :
"Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
8. Ld APP for state has argued that mere non joining of public witnesses is not fatal for the prosecution case and has relied upon the judgment of [PRECEDENT], wherein it was held that the FIR No. 156/08 PS Aman Vihar Page5 of 10 prosecution case cannot be thrown out or doubted on the sole ground of non production of public witnesses, as the public witnesses keep themselves away from the court unless it is inevitable. The contention of Ld. APP is acceptable to that extent the mere non joining of public witness is not sufficient for acquitting the accused. However, every case has to be dealt with in accordance with the material available on record. In the present case, it is not only the absence of public witnesses which only raises doubt on the prosecution but there are other circumstances also which are discussed in the later part of the dicta, which raises suspicion over the prosecution version and it is well settled dogma that every accused is presumed to be innocent and is entitled to benefit of any doubt in prosecution story. Ld APP has also argued that no notice can be given by the police officials to the public witnesses u/[SECTION] [ACT] as it only relates to [SECTION] [ACT], where only the persons specified are bound to assist the police. This court does not agree with the said contention of Ld APP, the police official can ask any public person to assist him and can give notice to him and on unreasonable omission, the person can be prosecuted. There is no bar that such notice cannot be given by police officials to the public persons. [SECTION] [ACT] provides for punishment of persons who are bound by law to assist public servant, intentionally omits to do so. The contention of Ld APP is that only persons u/[SECTION] [ACT] are bound by law to assist police officials and no other. This contention is in my view totally merit less. All public persons are bound to assist police officials in discharge of their duties. [SECTION] of [ACT] reads as follows:
"65.Persons bound to comply with the reasonable directions of police officer.-
All persons shall be bound to comply with the reasonable directions given by a police officer in the discharge of his duties under this Act. Where any person resists, refuses or FIR No. 156/08 PS Aman Vihar Page6 of 10 fails to comply with any direction referred to in sub-section (1), a police officer may, without prejudice to any other action that he may take under any other provision of this Act or any other law for the time being in force remove such person and either produce him before a Metropolitan Magistrate or, in trivial cases, release him when the occasion which necessitated the removal has ceased to exist: Provided that the person so removed shall in all cases be produced before the Metropolitan Magistrate or released, as the case may be, within a period of twenty-four hours of such removal."
9. The contravention of [SECTION] also entails a punishment as prescribed for in [SECTION] of [ACT]. Thus, this court is unable to accept that the ambit of [SECTION] is limited to [SECTION] [ACT] and no more.
10. The present case totally rests upon the alleged recovery of the case property from the possession of the accused at the relevant time. When the public persons were not joined in the investigation, then in such case the arrival and departure entries of the police official i.e. [ENTITY] who was allegedly present at the spot and apprehended the accused with case property is a vital piece of evidence, which have also not been proved on record. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per the PPR rules. It is apposite at this juncture to reproduce [SECTION] of [ACT], provides as under:-
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
FIR No. 156/08 PS Aman Vihar Page7 of 10 Note:-The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
11. Ld. APP has asserted that the accused has not asked any questions relating to the non production of arrival and departure entries and as such the prosecution is not obliged to prove the said entries. In the present case, admittedly, no public witness has joined the investigation and thus it becomes more important and incumbent in the present case that the arrival and departure entries be proved to corroborate the fact of presence of the police personnel on the spot. More specifically, proving of the arrival and departure entry of police personnel who apprehended the accused with case property appears indispensable, as the instant case rests completely on the alleged recovery.
12. It is also pertinent to observe that the case property was allegedly sealed by IO [ENTITY] with the seal of [ENTITY]. No memo was prepared with respect to handing over and return of seal. The seal in the present case was not handed over to any independent witness nor it was deposited in Malkhana to assail the possibility of its misuse.
13. Most importantly in the present case, the case property has been seized vide seizure memo Ex PW 3/A and thereafter FIR was registered. It means that the seizure memo was prepared at the spot before the registration of FIR. Interestingly, the seizure memo Ex. PW 3/A bears the FIR number and case details in the same ink with which the document is prepared which indicates that the FIR number was inserted while preparing the document. The FIR is admittedly registered later after the preparation of this document. No explanation has been furnished on record as to how the FIR registration number has appeared on this document. It leads to only one inference either the document is prepared later or FIR No. 156/08 PS Aman Vihar Page8 of 10 the FIR has been registered earlier in point of time. Both the situations create dents and leave unexplained holes in the prosecution story, the benefit of which must accrue to the accused. This court finds force from the following judgments on the same point of law:
[PRECEDENT] [PRECEDENT] [PRECEDENT] [ENTITY] v. State 2000 I AD (Delhi) 10 [PRECEDENT]
14. It would be appropriate to reproduce the relevant extract from the judgment titled as [PRECEDENT], as follows:
"Surprisingly, the secret information (Ex. P.W.7/B), the notice under [SECTION] of the Act (Ex. P.W. 4/A) and the Seizure Memo (Ex. P.W. 4/C) bear the number of the FIR (Ex. P.W.1/B). The number of the FIR (Ex. P.W.1/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation whatsoever as to under what circumstances number of FIR (Ex. P.W.1/B) has appeared on the top of the aforesaid documents, which are allegedly prepared on the spot before the registration of the FIR. This gives rise to two inferences that either the FIR (Ex. P.W.1/B) was recorded prior to the alleged recovery of contraband or number of the said FIR was inserted in these documents after its registration. In both the situations it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
FIR No. 156/08 PS Aman Vihar Page9 of 10
15. It is dogmatic in criminal jurisprudence that the prosecution is under the obligation to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is well settled legal proposition that the benefit of doubt goes in favour of the accused.
16. Considering the facts that - no independent witness was cited or examined, DD entries not proved and appearance of FIR number on the seizure memo, when kept in juxtaposition to each other, shrouds clouds of suspicion over the prosecution version.
17. Thus, this court is of the considered view that the benefit of doubt in the present case be given to the accused and he is entitled to be exonerated of the charges against him in the present case. The accused [ENTITY] is hereby acquitted for the offence U/[SECTION] [ACT]. Bail bonds are cancelled. Surety is discharged. Documents, if any be returned after cancellation of endorsement on the same. Case property be confiscated to State as per Rules.
18. File after necessary compliance be consigned to record room.
Announced in open court ([ENTITY]) 23rd day of August 2013 Metropolitan Magistrate, Rohini Courts: Delhi FIR No. 156/08 PS Aman Vihar Page10 of 10