IN THE COURT OF SHRI SUSHIL ANUJ TYAGI, METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI State Vs. [ENTITY] FIR No. 231/02 P.S. Kanjhawala Unique ID No. 02404RO363312010 Date of institution of case: 10.1.2003 Date of reserving the judgment: 08.8.2012 Date of pronouncement of judgment: 13.8.2012 J U D G M E N T
1. S. No. of the Case : 35/03/03 2. Date of Commission of Offence : 24.9.2002 3. Date of institution of the case : 10.1.2003 4. Name of the complainant : [ENTITY]
5. Name of the accused, parentage & address: [ENTITY] S/o [ENTITY], R/o vill. Badshahpur, PS Giroh, Distt. Mainpuri (UP).
At present: H. No. 126, Yadav Park, Mundka, House of [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 : 13.8.2012 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of prosecution as unfolded by report U/[SECTION] [ACT] is that on 24.9.2002 at about 1:30pm at Niwampur Chowk, Kanjhawala, Delhi within the jurisdiction of PS Kanjhawala accused [ENTITY] was apprehended by [ENTITY] in possession of 120 quarter 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 19.12.2007 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined following witnesses:
5. PW 1 ASI [ENTITY] was posted as duty officer in PS Kanjhawala and registered the FIR Ex. PW 1/A in the present case. She also proved endorsement on [ENTITY] as Ex. PW 1/B.
6. [CASE NUMBER] was posted as MHC(M) in PS Kanjhawala with whom the case property of this case was deposited by IO. He proved relevant entry in register No. 19 as Ex. PW 2/A. He further deposed that on 16.10.2002 on the instructions of IO he handed over the sealed sample of this case with excise form to Ct [ENTITY] for depositing the same at excise office vide [CASE NUMBER] and after depositing the same Ct [ENTITY] handed over the receipt to him.
7. PW 3 [ENTITY] deposed that on 24.9.2002 he alongwith [ENTITY] was on patrolling duty in the area of village Ghevra and at about 1:30pm when they reached at Nizampur Chowk they noticed that a scooter rider was coming from the side of Bahadurgarh on scooter No. DDH 5171 and same was stopped and 120 quarter bottles of illicit liquor were recovered from his possession. The scooter rider disclosed his name as [ENTITY]. He further deposed that three quarter bottles were taken out as sample bottles and were sealed with the seal of [ENTITY] and remaining 117 quarter bottles were kept into a plastic katta and it was sealed with the same seal. Form M 29 was prepared and seal after use was handed over to the said constable. The sealed case property, sample property and said scooter were taken into possession vide memo Ex. PW 3/A and prepared [ENTITY] Ex. PW 3/B and got registered the case through [ENTITY]. Ct. [ENTITY] returned back with FIR and original [ENTITY] alongwith IO HC [ENTITY]. The documents and accused was handed over the IO. He further deposed that place of incident was inspected and site plan was prepared by the IO at his instance and accused [ENTITY] was arrested and his personal search was conducted in is presence. He proved the case property as Ex. P 1 to P 118 and proved the scooter as Ex. P 119.
8. PW 4 [ENTITY] deposited the samples of this case at excise office.
9. The prosecution evidence was closed vide order 04.06.2012 considering the old pendency of this case since 2002. Statement of accused was recorded U/[SECTION]/[SECTION] [ACT] on 11.7.2012. He claimed innocence and false implication. He did not wish to lead defence evidence.
10. 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.
11. 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.
12. 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 Nizampur Chowk and time of arrest was 1.30pm. It is not the case of the prosecution that no public was present at or near the spot of arrest and recovery. 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. 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."
13. 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.
14. 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 were 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.
15. 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.
16. It is also pertinent to observe that the case property was allegedly sealed by the [ENTITY] with the seal of [ENTITY]. The seal after use was allegedly given to [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 [ENTITY] does not commensurate with the initials of [ENTITY]. Though it is not impossible that [ENTITY] could have used the seal but is improbable. This improbability has not been explained by the prosecution and raises suspicion over the prosecution version. To add, when the case property was produced before the court for the first time during examination of PW 3 [ENTITY], it was without seal and 115 out of 117 bottles were found empty and one of them was broken. No explanation is rendered for production of the case property in such condition and it leads to only one inference that the case property was tampered and its false implication on accused cannot be discarded. Further, it was the case of the prosecution that the accused was arrested while driving scooter bearing No. D[ENTITY] 5721 on which the accused was carrying the illicit liquor and the IO seized the illicit liquor and the aforesaid scooter vide Ex. PW 3/B. Interestingly, the key of the scooter was neither seized nor is mentioned in the seizure memo allegedly prepared by the IO. Also, the scooter has not been taken on superdari by anybody. It is not investigated as to whom the said scooter belongs and as such its connection with accused cannot be established which could have been a good link and supportive evidence.
17. Most importantly in the present case, the [ENTITY] has deposed that he seized the case property vide seizure memo Ex PW 3/A 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/A 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] [PRECEDENT] 10 [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."
18. The accused has taken a plea in their examination u/[SECTION] [ACT] that he was the pillion rider on the scooter of the real culprit. Indisputably, the scooter has not been released to anyone on superdari and it is not proved on record that it belongs to accused or not. Thus, in this light the defence of the accused is not completely baseless and is tenable.
19. 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.
20. 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. The possibility of tempering with the case property cannot be discarded in these facts and circumstances.
21. 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.
22. File after necessary compliance be consigned to record room.
Announced in open court ( [ENTITY] ) 13th day of August, 2012 Metropolitan Magistrate, Rohini Courts: Delhi cr