IN THE COURT OF MM06(SOUTH) SAKET COURTS COMPLEX, NEW DELHI Presided by : Ms. [ENTITY] State Vs. [ENTITY] FIR No.82/08 P.S. Neb Sarai Date of institution of case: 26.10.2009 Date of reserving the judgment: 10.05.2013 Date of pronouncement of judgment: 10.05.2013 J U D G M E N T
1.Serial No. of the Case: 85/3/9 2.Date of the Commission of offence: 29.12.2008 3.Date of Institution of the case: 26.10.2009 4.Name of the complainant: [ENTITY] 5.Name of the accused, [ENTITY] Parentage & Address: S/o Om Prakash st R/o 778/13, L1 Sangam Vihar, N Delhi 6.Offence complained or proved: U/s 61/1/14 Punjab [ACT] 7.Plea of accused: Not Guilty 8.Final order: Acquitted 9.Date of final order: 10.05.2013
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of the prosecution as unfolded by the police report under [SECTION] of the [ACT] (hereinafter referred to as '[ACT]') is that on 29.12.2008 at about 06.50 pm at H. No. 77/13, Lst, Sangam Vihar, New Delhi, within the jurisdiction of PS Neb Sarai, accused [ENTITY] was found in possession of four sacks, out of which first and second sacks contained 96 & 141 quarters of illicit liquor branded as Bonnie Special Whisky respectively, third and fourth sacks contained 200 & 150 quarters of illicit liquor branded as Kinnu Masaledar Deshi Sharab, for Sale in Haryana only without any permit or license. Accused was arrested, case property was seized and deposited in malkhana.
2. After investigation, chargesheet under [SECTION] [ACT] was filed on 26.10.2009. On the basis of the chargesheet and material on record, prima facie case was made out, therefore, charge for the offence punishable under [SECTION] [ACT] was framed against the accused by Ld. Predecessor on 10.10.2011 to which he pleaded not guilty and claimed trial.
3. To prove it case, Prosecution examined following witnesses.
4. PW1 ASI [ENTITY], is the Duty Officer. He proved the registration of FIR Ex PW1/A and his endorsement as Ex PW1/B. This witness was not cross examined despite opportunity given.
5. PW2 Ct [ENTITY], is a formal witness who carried the sample of case property to the Excise Laboratory, ITO. He deposed that sample was sealed with the seal of BR when he carried the same to Excise Lab on 06.01.2009. He was cross examined but no material discrepancy was recorded in his deposition.
6. PW3 [ENTITY] is the witness of recovery. He deposed that on 29.12.2008 while he was on patrolling and on reaching H. No. 778, Gali No.13, L1st, Sangam Vihar, he met [ENTITY] and [ENTITY] who had apprehended the accused with case property. He further deposed regarding seizure of illicit liquor i.e. four sacks, out of which first and second sacks contained 96 & 141 quarters of illicit liquor branded as Bonnie Special Whisky respectively, third and fourth sacks contained 200 & 150 quarters of illicit liquor branded as Kinnu Masaledar Deshi Sharab, for Sale in Haryana only by IO vide seizure memo Ex PW3/C. He further deposed that one quarter bottle from each sack were taken as sample and sealed with the seal of BR and seal was handed over to him after use. Thereafter IO had prepared the [ENTITY] got the case FIR registered through him who returned on the spot with copy of FIR and original [ENTITY]. He also deposed regarding arrest and personal search of the accused conducted by IO in his presence vide Ex.PW3/A & PW3/B respectively. He identified his signatures on seizure memo Ex.PW3/C, arrest memo and personal search memo Ex.PW3/A and Ex.PW3/B respectively. He also identified the accused. He also identified the case property which was produced in unsealed condition as the same which was recovered from the accused.
In his cross examination, he claimed that he had made departure entry but did not mentioned the entry number by which he had departed. He further admitted that he had not given the information to SHO/ACP. He further admitted that the place of recovery was a public place and name of public persons who refused to join the investigation were not noted nor they were served with the legal notice. He further stated that case property was taken in private vehicle but he did not disclosed the registration number of said vehicle and admitted that statement of driver of vehicle was not recorded by the IO. He also admitted that no seal handing over or seal returning memo was prepared. He stated that case property was deposited at Malkhana at 10.30 pm.
7. PW4 [ENTITY] , is the another witness of recovery. He deposed that on the fateful date, he along with [ENTITY] were on emergency duty, when they received DD no.15A Ex PW4/A regarding recovery of illicit liquor, he reached the spot where they found that accused was already apprehended by [ENTITY] with four sacks. He deposed that [ENTITY] handed over the case property and accused to the IO. His remaining deposition is on the similar lines as PW3. Therefore, the same is not reproduced for the sake of brevity. His cross examination and his answers were on the similar lines as PW3. His answer deferred on the point of vehicle which was used for taken case property to the PS. He stated that case property was taken on Rikshaw and statement of Rikshaw puller was not recorded by the IO. He stated that case property was deposited at Malkhana at 08.00 pm.
8. PW5 [ENTITY], is the investigating officer of this case. He deposed that on the fateful date, he along with Ct. [ENTITY] were on emergency duty, when they received DD no.15A Ex PW4/A regarding recovery of illicit liquor, he reached the spot where they found the accused with four sacks. He deposed that accused was interrogated but could not give satisfactory answer after which 34 persons were requested to join the investigation but non agreed and left the spot. He further deposed regarding the seizure of case property vide Ex PW3/C and sealing of sample with the seal of BR. He deposed that he handed over the seal to [ENTITY] after use. His remaining deposition is on the similar lines as PW4. Therefore, the same is not reproduced for the sake of brevity. His cross examination and his answers were on the similar lines as PW4. His answer deferred on the point of departure entry whereby he has admitted that no departure entry was made. He stated that case property was taken on Rikshaw and statement of Rikshaw puller was not recorded by me. He stated that case property was deposited at Malkhana at 09.00 pm.
9. After closing of prosecution evidence, all the incriminating evidence was put to the accused and his statement was recorded today under [SECTION]/[SECTION] [ACT] He claimed innocence and false implication. He did not lead Evidence in his defence.
10. Thereafter, Final arguments were heard. It was argued by Ld. APP for State that the accused as well as the case property have been correctly identified by the witnesses and material witnesses have corroborated the testimony of each other, therefore, case has been proved beyond doubt against the accused. He accordingly prayed for conviction of the accused.
11. On the other hand, it was argued by Ld. Counsel for the accused that nothing has been recovered from the possession of the accused and that he has been falsely implicated by the police. Ld. Counsel pointed out certain lacunae in the prosecution case. He argued that the fact that no public witnesses have been joined in the investigation despite availability, departure entry of the recovery witnesses have not been proved, alleged seal was not handed over to independent witness after use, case property was produced in court in unsealed condition and seizure memo mentions FIR number and case details despite having been prepared earlier in point of time shows that the accused has been falsely implicated. He accordingly, prayed for acquittal of the accused.
12. I have carefully perused the record and considered the submissions of learned Assistant Public Prosecutor for the State and Ld. Defence Counsel.
13. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or licence. In order to establish guilt of the accused, the prosecution was required to prove the recovery of illicit liquor from the possession of the accused beyond all reasonable doubts.
14. Evidently, there is no public witness to the recovery of the liquor. The place of arrest of accused and recovery was his residence itself surrounded by other residential units in thickly populated area. It is not the case of the prosecution that no public person was present near the spot of recovery rather public persons are stated to have been requested to join investigation. No efforts by the IO are seen on the file for joining the public witnesses. A notice in writing to witnesses to join the proceedings or to face action u/[SECTION] [ACT] could have been served upon the public persons present on the spot by the IO. IO has failed to even note down the names and addresses of the public persons who were supposedly requested but refused to join investigation. Thus, it can fairly be inferred that no sincere efforts were made by IO to join public witnesses despite their availability. This casts doubts on the fairness of the investigation. Legal position has been reiterated by the Hon'ble High Court of Delhi in [PRECEDENT]. The relevant extract is reproduced hereinbelow:
" According to [ENTITY], he did not join any public witness in the case while according to [ENTITY], no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. 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 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 a case of 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 I.O. 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. While none joining of public witnesses creates doubts as regards fairness of investigation but at the same time the prosecution case cannot be thrown out and accused can't be acquitted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in [PRECEDENT]. However, in the instant case, it is not only the absence of public witnesses but there are other circumstances too which raises a doubt on the prosecution case.
16. The prosecution case rests entirely on the alleged recovery of illicit liquor from the accused. As already discussed, no public witnesses have been joined in the investigation. In such circumstances, the departure and arrival entries in the register No.II as maintained under [SECTION] of [ACT] would have been a vital evidence to to prove the possibility of availability of these witnesses at the relevant time on the spot and to corroborate the deposition of recovery witnesses. [SECTION] of [ACT], is reproduced herein below for ease of reference "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 what ever 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 personally by signature or seal.
Note:The term Police Station will include all places such as Police Lines and Police Posts where Register No.II is maintained.
17. As per prosecution case, [ENTITY] was on patrolling duty in the area at the relevant time and [ENTITY] and [ENTITY] had reached the spot after receiving DD entries. The DD entries in register No II showing departure for patrolling in the area could have been proved by the prosecution. However, neither the said DD entries have been proved nor the DD number of the departure entry has been brought on record. When the provisions of law are not strictly complied with the same can be said to be done with oblique motive and are to be seen with reservation as has been held by Hon'ble High Court of Delhi in [PRECEDENT]. In the instant case also, failure of prosecution to bring on record the DD entries casts shadow on the prosecution case as whole case rests on the alleged recovery from the accused.
18. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of BR and handed over to [ENTITY]. However, the IO has deposed contrary to the prosecution case and stated that he had handed over the seal to [ENTITY] after use. Further, no handing over memo was prepared. Further seal was neither handed over to independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to independent witness or deposited in malkhana. In the circumstances, the possibility of tempering of case property can't be ruled out.
19. Moreover, the case property was produced in the court during examination of PW1 in unsealed condition and it is quite possible that the sacks were never sealed at all. Thus, the possibility of tempering of case property and its false implication on the accused can't be ruled out.
20. Lastly, as per prosecution case the accused was apprehended with the case property and same was seized by the IO vide seizure memo Ex.PW3/C in presence of [ENTITY]. Subsequently, [ENTITY] was prepared by IO and handed over to [ENTITY] for registration of FIR. [ENTITY] got the FIR registered and then again returned to the spot with original [ENTITY] and copy of FIR. It means that seizure memo was prepared before registration of FIR. Ld. Defence Counsel has doubted the prosecution version arguing that the seizure memo Ex.PW3/C bears FIR number and case details in the same ink and handwriting in which document is prepared implying that FIR number was inserted while preparing the document. Reliance has been placed on [PRECEDENT] Relevant para of the relied judgment is reproduced herein below:
" Surprisingly, the secret information (Ex.PW7/A) received by the SubInspector [ENTITY] (PW7), the notice under [SECTION] of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under [SECTION] of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex.
PW4/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 as to under what circumstance number of the FIR (Ex.
PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the 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 and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
21. In the instant case as well, no explanation has been offered on record as to how the FIR number and case details have appeared on the seizure memo Ex. PW3/C. The same leads one to only one inference that either the said document was prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
22. Considering the facts that no independent witness was joined, Daily Diary entries regarding arrival and departure of Ct. [ENTITY] have not been proved, case property was not produced in an intact condition, and the appearance of FIR number and case particulars on the seizure memo, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
23. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
24. Thus, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused [ENTITY] is hereby acquitted of the offence punishable under [SECTION] [ACT]. Case property be confiscated to State as per rules, subject to limitation period for revision/appeal and orders of the Appellate Court, if any.
25. File be consigned to record room after necessary compliance.
Announced in open court on 10.05.2013 [ENTITY] MM06(South)/10.05.2013
Certified that this judgment contains 14 pages and each page bears my signatures.
[ENTITY] MM06(South)/10.05.2013