IN THE COURT OF SHRI GAURAV RAO: METROPOLITAN MAGISTRATE: DELHI In Re: STATE VERSUS SMT. BIMLA F.I.R. No: 277/99 U/[SECTION] [ACT] Date of Institution of Case : 06.01.2000 Date of Judgment Reserved for : 18.05.2010 Date of Judgment : 18.05.2010 JUDGEMENT:
(a) The serial no. of the case : 1379/2/08 (b) The date of commission of offence : 17.03.1999 (c) The name of complainant : [ENTITY] (d) The name, parentage, :Smt. [ENTITY],
of accused w/o Sh. Gopal, R/o H. No. RZ A-226, Nihal Vihar, Nangloi, Delhi. Present Address : As above (e) The offence complained of : U/[SECTION] of [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 18.05.2010 Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 17.03.1999 at about 4.20 PM at RZ A-226, Nihal Vihar, Main Gate, Nangloi, Delhi within the jurisdiction of police station Nangloi accused Smt. [ENTITY] was found in possession of one gatta peti containing 48 quarter bottles of Boni Scott Special Malted Whisky of illicit liquor without any permit or licence and thereby the accused committed offence u/[SECTION] of [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] [ACT] was supplied to the accused and thereafter, vide order dated 07.02.2001, charge u/[SECTION] [ACT] was framed against accused to which she pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined four witnesses, whereafter the PE in the matter was closed and the statement of accused u/[SECTION] [ACT] was recorded wherein she claimed herself to be innocent and having been falsely implicated in the case. However, she did not offer to lead any evidence in his defence.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Ct. [ENTITY] deposed on 28.04.1999 while he was posted at PS Nangloi he took sample from MHC(M) on the instruction of IO for depositing the same at Excise office vide RC no. 142/21/99 along with excise form and deposited the same at Excise office and obtained the receipt on RC and handed over to the MHC (M). He further deposed that the sample was not tampered by or anyone during it remained in his possession.
During his cross examination he stated that he took the sample in the morning however, he does not remember the exact time when he received the sample etc. He further stated that MHC (M) did not obtain his signature on register no. 19 while giving him the sample for depositing the same. He further stated that MHC (M) also did not obtain his signature on register no. 19 when he returned from the Excise lab. He further stated that no separate sample or chemical number was given to him by the Excise lab. He denied the suggestion that he was deposing falsely being police witness.
5. PW2 [ENTITY] deposed that on 17.03.1999 while he was posted at PS Nangloi IO [ENTITY] handed over to him case property, sample, form 29, all sealed with the seal of TS. He further deposed that he deposited the same in Malkhanna vide entry no. 2856 in register no. 19. Photocopy of the same is Ex. PW2/A. He further deposed on 28.04.1999 on the instruction of IO he deposited the sample to excise office through Ct. [ENTITY] and after depositing the same he handed over to him the receipt vide RC no. 42/21/99. He further deposed that case property was not tampered during the time it remained in his possession.
6. PW3 Ct. [ENTITY] deposed that on 17.03.1999 while he was posted at Excise Department, he went to Nangloi Nihal Vihar A block for recovery of liquor and when they reached at house no. RZA-226, Nihal Vihar, accused (correctly identified) was overpowered by [ENTITY] and Ct. [ENTITY] and IO told him that 6 petties were recovered from the possession of accused. 2 petties contained 48 quarter bottles of Boni Scot and 2 petties contained 12 bottles of XXX Rum and remaining 2 petties contained 48 quarter bottles of whisky Brians and 2 petties which was lying in the shed of the house contained 42 quarter bottles and other petties contained 48 bottles and one bag and one jute bag were also lying there and bag contained 150 pouches of country made liquor and jute bag contained 200 pouches of [ENTITY]. He further deposed that one bag was also lying near the bags and 22 quarter bottles were found in the bag.
7. PW4 Ct. [ENTITY] deposed that on 17.03.1999 while he was posted at PS Nangloi at around 4:30 p.m. he was with [ENTITY] and at the same time when they reached at Nihal Vihar market where an informer informed about the illicit liquor with a lady and they reached at RZ-226 Nihal Vihar where accused [ENTITY] was found. He further deposed that she was taking a patty of liquor inside her house, she was stopped and HC IO checked the petti which was found 48 quarter bottles of Bonny Scott liquor. He further deposed that on inquiry more liquor was also found at the spot. He further deposed that out of the total recoveries two petties were found containing 48 bottles of Bonny scot, two petties were found containing 12 bottles each of Black Jack, two petties were found containing Brihance Whisky no. 1, one plastic katta found 150 pouches of liquor, one Bori Tat containing 200 pouches of masti Maseledar and one Thaila containing 22 pouches of boxer liquor. He further deposed that besides the above one more patti was found containing 42 quarter bottles of Smarat Whisky. He further deposed that IO gave Sl. number to the case property. He further deposed that he separated one quarter bottle, bottles and two pouches each from the patteis and the katta. He further deposed that sample were separated and remaining quarter bottles, bottles and pouches were replaced in the same kattas from which it were recovered. He further deposed that sample, petties, katta, the bag were sealed with the seal of TS and seal after use was given to Ct. [ENTITY]. He further deposed that Excise form was filled, the case property was sealed vide memo Ex. PW3/A. He further deposed that at the time Ct. [ENTITY] from Excise Department also met them. IO prepared ruqqa which he took to PS for registration of FIR and he returned to the PS with ruqqa and copy of FIR and handed over the same to the IO. He further deposed that in the meantime, he prepared site plan, accused was arrested and released on the spot and statements of the witnesses were recorded.
The case property was duly identified by this witness when the same was produced by the MHC (M) in the court as Ex. P-1.
During his cross examination, he stated that the case property was brought to PS in [ENTITY] but he does not know his owner. He denied the suggestion that he never participated in any alleged investigation of the present case. He further denied the suggestion that nothing was recovered from the accused. He admitted that no written notice/warning was given to public person during investigation. He denied the suggestion that he was deposing falsely being a police person. He further stated that he does not remember the total time taken by the police during the alleged investigation.
8. This is all as far as prosecution evidence in the matter is concerned.
9. I have heard the arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
10. The learned defence counsel has very vehemently argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there is no independent corroboration thereof. It was further argued that the recovered liquor planted upon the accused. On the other hand, the Ld. APP argued that there is no requirement of law that independent witness be joined during investigation or raid or that the testimony of police official is unreliable in the absence of any independent corroboration.
11. No doubt that Police officials/official witnesses are as good as any other witness however, when public persons were available and still they have not been joined in the investigation and no notice has been served upon them in case of refusal the prosecution case/their testimony has to be scrutinized stringently.
12. In [PRECEDENT] , titled as [PRECEDENT] it was observed as under :
When some witness from the public was available the explanation furnished by the prosecution that they refused to join the investigation, the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them .
In [CASE NUMBER] titled as [PRECEDENT] , it was further held that:
Joining of witnesses in the case of excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency it is always desirable that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation .
13. Further reliance can be placed upon "[PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT] wherein it has been observed that in the absence of public witness/non-joining of public/independent witnesses the prosecution story has to be approached with caution more so when the investigation officer failed to take action against those who refused to join the alleged raid.
14. In the present case admittedly the place of alleged recovery of the illicit liquor was a populated/residential area and various public persons were also present however, none from the public could be joined by the police official during the alleged raid and seizure. The fact remains that no action was taken/no notice was served those who refused to join the investigation and even their names were not noted down and the explanation as furnished by the police officials is unreliable. In [PRECEDENT] it was observed that such explanations are unreliable. In the case of [PRECEDENT] and in the case of [PRECEDENT] it was observed that in case of failure to join independent witness benefit of doubt must be given to the accused.
15. In the present case, no efforts were made to hand over the seal after use to independent public persons and it remained with the officials of the Police Station only. In such cases in view of the case titled as [PRECEDENT] and [PRECEDENT] benefit of doubt is to be given to the accused. Till the time case property is not dispatched to the FSL the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of the seal, contraband and the samples being tempered with cannot be ruled out ([PRECEDENT].
16. In the present case, when the case property was produced in the Court it was found that the seal on the katta was not legible, the peties and the kattas were damaged and it was also observed that anything could be easily taken out/put back in the katta or peti. This shows that neither the case property was preserved during the trial and the fact it was not bearing any seal casts serious doubts regarding the entire seizure proceedings. In [PRECEDENT] the accused was acquitted as when the case property was produced in the Court, the seal was broken and in- decipherable. Similarly, in [PRECEDENT] and Didar Singh v. State of Punjab, (P&H) 1989(2) R.C.R. (Criminal) 195 the accused was acquitted by the Hon'ble High Court as when the case property was produced in the Court it was found that the same was not sealed. Regarding the empty pouches/case property as observed by the Court it itself shows the manner with which the same was dealt by the SHO/IO during the time it remained in possession of police official in malkhana. Under [SECTION] it is responsibility of Office Incharge of Police Station to exam- ine the property twice a month. Under [SECTION] it is his duty to maintain case property till such time the final orders are passed. Once the case property is found to be broken/damaged import link in the prosecution story goes missing and the accused becomes entitled to acquittal. Reliance can be placed upon case titled as [PRECEDENT]. Further in [PRECEDENT] it was observed that deposit and unkeep of property in malkhana is fundamental importance. Further reliance can be placed upon case titled as "[PRECEDENT] as well as "[PRECEDENT]".
17. No signatures of the person depositing the case property in the Malkhanna were taken in register no. 19 and neither the signatures of the person who took the sample to FSL were taken. These circumstances especially when the seal was not handed over to independent persons and remained with the police offi- cials of the same police station where the property was lying benefit of doubt must be given to the accused as observed in [PRECEDENT].
18. Neither the road certificate via which the sample was allegedly sent to Laboratory could be proved by the prosecution. In the absence of both these ma- terial documents/missing link in the prosecution story benefit has to be given to the accused. Reliance can be placed upon 1994 Drugs cases page 154 , titled as [PRECEDENT] and [PRECEDENT] , titled as [PRECEDENT] .
19. In this case the FIR number is mentioned on the recovery memo/seizure memo. Same is written in the same ink/pen/flow as the other particulars on the said documents. Admittedly this document was prepared before registration of F.I.R. In the case of [PRECEDENT] it was observed that when documents are prepared before registration of F.I.R. and it contains the F.I.R. No. then inference has to be drawn that either F.I.R. was recorded prior in time or the documents were prepared later on and in such cases benefit of doubt is to be given to the accused.
20. Even the departure and arrival of the police officials to the police station have not been proved by the prosecution to lend credence to the version of the prosecution.
21. Merely because there is heavy recovery in view of my above discussion, it is no ground to conclude that whatever has been stated by the police is a gospel truth ([PRECEDENT]).
22. Before parting with the present judgment it will be worthwhile to note that the cross examination of Ct. [ENTITY] remained deferred and accordingly in view of [SECTION] of the [ACT] same is inadmissible/cannot be read in evidence against the accused. Though, the trial lasted for 10 long years, the prosecution failed to examine all its witnesses. Furthermore, there is one major lacuna in the prosecution story. As per the prosecution case, the recovery was effected from the [SECTION], Nihal Vihar however, prosecution failed to connect the accused with the said premises. No document was placed on record to prove whether any such property/house number ever existed, whether accused was owner of the same or was a tenant therein. There is nothing to explain/connect the accused with the said house. This itself is fatal for the prosecution case.
23. Lastly I may reiterate the observations made in [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and [PRECEDENT] where it has been held that failure of the Investigating Officer to join independent witnesses of the locality in investigation sounds the death knell of the prosecution case set up against accused and the accused is entitled to secure an acquittal on this score.
24. In view of the above discussion, I am of the considered opinion that the prosecution has not been able to prove the charges against the accused beyond the shadow of doubt. Accused Smt. [ENTITY] is accordingly entitled for acquittal. I order accordingly. Surety bonds cancelled, sureties discharged. Endorsements, if any on the documents of surety be cancelled forthwith. No further orders are required to be passed in the matter.
25. File be consigned to Record Room as per rules and procedure.
Announced in the open ([ENTITY]) Court on 18.05.2010 MM (West)/Delhi. [CASE NUMBER] 10/ PS Nangloi Pr: Ld. APP for state. Accused is present on bail along with counsel. Matter is pending at the stage of S.A.
However, an application U/[SECTION] [ACT] as moved by the Ld. APP for the State is still pending.
Arguments heard.
Ld. Defence counsel has strongly opposed the application and has submitted that moving of the application at this stage is an abuse of the process of law by the prosecution and nothing but an attempt to fill in lacuna as appearing in the prosecution story.
Record perused. Matter pertains to year 1999 i.e. 11 years old. Charges were framed in the year 2001 and enough opportunities were granted to the prosecution to lead its evidence. Prosecution failed to do so.
At this stage, when the matter is pending at the stage of recording the statement of accused U/[SECTION] [ACT], I am not inclined to allow the present application as rightly the Ld. Defence counsel has submitted that the same has been moved to fill in the lacuna in the prosecution story. Moreover, trial cannot be allowed to go on for eternity as same is against the fundamental right of the accused to speedy trial ([PRECEDENT]).
Application is accordingly dismissed.
[CASE NUMBER] 11/ Accused has been examined U/[SECTION] [ACT]
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
([ENTITY]) MM (w)/Delhi/18.05.2010 [CASE NUMBER] 12/