IN THE COURT OF SHRI SUSHIL ANUJ TYAGI, METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI State Vs. [ENTITY] FIR No. 40 of 2002 P.S. Kanjhawala Unique ID No. 02401RO816932003 Date of institution of case: 11.7.2002 Date of reserving the judgment: 10.9.2012 Date of pronouncement of judgment: 11.9.2012 J U D G M E N T
1. S. No. of the Case : 275/3/02 2. Date of Commission of Offence : 02.3.2002 3. Date of institution of the case : 11.7.2002 4. Name of the complainant : Ct. [ENTITY] 5. Name of the accused, parentage & address: [ENTITY] S/o Shanker Lal, R/o H. No. 218, Gali No. 6,Prem Nagar near Kirari village, Delhi 6. Offence complained or proved : 61 [ACT] 7. Plea of Accused : "Not Guilty" 8. Final Order : Acquitted 9. Date of Final Order : 11.9.2012 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of prosecution as unfolded by report U/[SECTION] [ACT] is that on 02.3.2002 at about 2:30pm at T Point, village Nizampur, Delhi within the jurisdiction of PS Kanjhawala accused [ENTITY] was apprehended by Ct. [ENTITY] and [ENTITY], in possession of 24 bottles of illicit 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 chargesheet 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] [ACT] was framed against the accused on 18.8.2006 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined following witnesses:
5. PW 1 [ENTITY], Dy. Chemical Examiner proved the chemical analysis report as Ex. PW 1/A.
6. PW 2 [ENTITY] as posted as MHC(M) in PS Kanjhawala with whom the case property was deposited by IO. He proved the relevant entry in register No. 19 in this regard as Ex. PW 2/A.
7. Ct. [ENTITY] deposed that on 02.3.2002 he alongwith Ct [ENTITY] were on patrolling duty and at about 2:30pm when they were present at T Point Nizampur, one scooter No. DL 6S 8940 came from the side of Bahadurgarh . They stopped and checked the scooter and found illicit liquor in the dikki of the scooter. They interrogated the accused who revealed his name as [ENTITY]. He further deposed that they informed PS regarding recovery and [ENTITY] came at the spot and they handed over the accused alongwith the case property and scooter. Thereafter IO recorded his statement Ex. PW 3/A. He further deposed that IO checked the illicit liquor and found 24 bottles of Gwalior Distillery Sharab of 750 ml each from both the dikkis of the scooter. He further deposed that IO separated two plastic bottles as sample and sealed with the seal of ISD and put the remaining case property into one plastic katta and also sealed with the seal of ISD and seal after use was handed over to [ENTITY]. He further deposed that IO filled form M 29 and seized the case property vide seizure memo Ex. PW 3/B and thereafter prepared [ENTITY] and handed over the same to [ENTITY] for getting the FIR registered and he went to PS. Thereafter IO prepared site plan Ex. PW 3/C. In the meantime [ENTITY] came at the spot and handed over original [ENTITY] and copy of FIR to IO. He further deposed that thereafter IO arrested the accused vide memo Ex. PW3/D and conducted his personal search vide memo Ex. PW 3/E. He proved the case property as Ex. P1.
8. PW 4 Ct. [ENTITY] deposited the samples with excise office.
9. PW 5 ASI [ENTITY] was posted as duty officer in PS Kanjhawala and registered the FIR Ex. PW 5/A in the present case. He further proved the endorsement on [ENTITY] as Ex. PW 5/B.
10. PW 6 [ENTITY] deposed that on 02.3.2002 on receipt of DD No. 34B B, mark A, he reached at village Nizampur T Point, Delhi where Ct. [ENTITY] and Ct. [ENTITY] met him and handed over accused [ENTITY] alongwith one scooter No. DL 6S 8940 and [ENTITY] disclosed that accused was found in possession of illicit liquor. He recorded statement of Ct. [ENTITY] Ex PW 3/A. He further deposed that he checked the said scooter and bottles of illicit liquor were found in the front and side diggi of the scooter and he took out all the bottles. Iit was found 24 in number, printed with [ENTITY]. Two bottles were separated as sample and remaining 22 bottles were kept in a plastic katta. Plastic katta and the sample pullanda were sealed with the seal of ISD. Aforesaid liquor alongwith scooter was seized vide memo already Ex. PW 3/B. After that he prepared the [ENTITY] Ex. PW 6/A and got the FIR registered through Ct. [ENTITY]. He prepared site plan already Ex. PW 3/C at the instance of Ct. [ENTITY]. From M 29 was filled at the spot which is Ex. PW 6/B. He further deposed that after that he arrested accused vide memo already Ex. PW 3/D and his personal search was conducted vide memo already Ex. PW 3/E. He also proved the case property already Ex. P1.
11. Statement of accused was recorded U/[SECTION]/[SECTION] [ACT] on 28.8.2012. He claimed innocence and false implication. He did not wish to lead defence evidence.
12. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel.
13. In the present case, it is the case of the prosecution that the accused was found in possession illicit liquor without any licence or permission on the fateful day. To substantiate the case, the prosecution was required to prove that the accused was found in possession of illicit liquor and was to prove recovery beyond reasonable doubts.
14. Evidently, no public witness to the recovery of the liquor has been cited in the list of witnesses. The place of arrest of accused and recovery was village Nizampur, Tpoint and time of arrest was 2.30 pm. It is not the case of the prosecution that no public was present at or near the spot of arrest and recovery. IO stated that he asked some passersby to join the investigation but none agreed. The IO has tried to explain the non joining of public witnesses in a routine and casual manner which is not acceptable. No names of public witnesses are recorded who declined to join the investigation. 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. No serious efforts by the IO are seen on the file for joining the public witnesses. The testimony of all the witnesses examined by the prosecution is silent to the effect that any serious efforts were made by the investigating officer to join 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. 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."
15. 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 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 meritless. 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 fails to comply with any direction referred to in subsection (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 twentyfour hours of such removal."
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.
16. 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] and [ENTITY] who was allegedly present at the spot and apprehended the accused with case property is a vital piece of evidence 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.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
17. Ld. APP has asserted that the ld. counsel of 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 persons with case property appears indispensable, as the instant case rests completely on the alleged recovery.
18. It is also pertinent to observe that the case property was allegedly sealed by the IO with the seal of ISD. The seal after use was allegedly given to Ct [ENTITY], however 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. Further, the seal of ISD does not commensurate with the initial of IO HC [ENTITY]. Though it is not impossible that IO may have used the said seal but upfront it appears improbable. To add, when the case property was produced before the court for the first time during examination of PW 3, it was with illegible seal. It is the court observation at that time that 10 bottles were empty. No explanation is rendered for production of the case property in such condition. It leads to only one inference that the case property was tampered and its false implication on accused cannot be discarded.
19. Most importantly in the present case, the IO Inspector has deposed that he seized the case property vide seizure memo Ex PW 3/B and thereafter prepared the [ENTITY] and got the FIR registered. It means that the seizure memo was prepared at the spot before the registration of FIR. Interestingly, the seizure memo Ex. PW 3/B bears the FIR number and case details in the same ink in which the documents is prepared which indicates that the FIR number was inserted while preparing the documents. 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 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] [1] [CASE NUMBER] [PRECEDENT] [PRECEDENT] [PRECEDENT] 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."
20. 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.
21. Considering the facts that no independent witness was cited or examined, DD entries not proved, case property not produced in intact condition and the appearance of FIR & case particulars on the seizure memo, when kept in juxtaposition to each other, shrouds clouds of suspicion over the prosecution version.
22. 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.
23. File after necessary compliance be consigned to record room.
Announced in open court ( [ENTITY] ) 11th day of September, 2012 Metropolitan Magistrate, Rohini Courts: Delhi