IN THE COURT OF SH. [ENTITY], METROPOLITAN MAGISTRATE (WEST) : TIS HAZARI COURTS : DELHI. FIR No.164/2004 PS - Nangloi State Vs. [ENTITY] & Anr. Unique Case ID No.02401R6306202004 JUDGMENT
(a) Sr. No. of the case 1622/2 (b) Date of offence 29.02.2004 (c) Complainant [ENTITY] (d) Accused 1. [ENTITY], S/o Late Sh. [ENTITY], R/o H. No. 14/168, near [ENTITY], Bahadurgarh, Haryana. 2. [ENTITY], S/o Sh. [ENTITY], R/o A-297, Mangol Puri, Delhi. (e) Offence Under [SECTION] of [ACT]. (f) Plea of accused Pleaded not guilty (g) Final Order Acquitted (h) Date of institution 06.09.2004 (i) Date when judgment was Not reserved reserved (j) Date of judgment 12.07.2013
1. The allegations against both the accused are that on 29.02.2004 at about 07:10 pm, at Sultan Puri, Road, near Railway Fatak, Nangloi, Delhi, they were found in possession of 20 gatta petties of illicit liquor out of which 9 petties were having "Commando XXX Rum" bottles and 11 petties were having Bonnie Scot special malted whisky lying in car No. HR35A-7874 without any permit or license and in contravention of provisions of [ACT] and thus, committed an offence punishable under [SECTION] of [ACT].
2. After completion of investigation, charge-sheet was filed. Charge for the offences under [SECTION] of [ACT] was framed against the accused persons to which they pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
3. Prosecution adduced evidence in support of its case. PW1 [ENTITY] has proved and exhibited the copy of FIR as Ex. PW1/A. PW1 was examined, cross-examined by the accused and was discharged.
4. PW-2 Ct. [ENTITY] has deposed that on 29.02.2004, he was posted at Special Staff, West District, Office at Tagore Garden as Ct. and on that day he alongwith Ct. [ENTITY], [ENTITY] and Ct. [ENTITY] were present at Nangloi Chowk "[ENTITY]" in a Maruti Car. At about 07:00 am, one secret informer met [ENTITY] and informed them that one Maruti Car was present near [ENTITY] having illicit liquor. IO/[ENTITY] asked 5-6 public persons to join the raiding party but none of them agreed and left the spot without disclosing their name and addresses citing their own genuine problem. Thereafter, IO prepared raiding party consisting of him, Ct. [ENTITY], and Ct. [ENTITY] and thereafter, they alongwith secret informer went to Sultan Puri Railway Fatak, at about 07:10 am where they found in the left side of Fatak, on vacant plot one white Maruti Car bearing registration NO. HR35A-7874. The gate of driver side of above said Maruti Car was in open condition and both accused were sitting in the same. Accused [ENTITY] was apprehended while accused [ENTITY] managed to flee. They found 20 petties rapped in black polythene which were kept on back seat and in the dikki of the above mentioned car. Meanwhile, public persons also gathered at the spot to whom IO asked to join the investigation but none of them joined. They took the gatta petties out from the car and IO checked and found and IO found 09 petties containing 12 bottles each of Comando XXX Rum and 11 petties were containing 48 quarter bottles each of [ENTITY]. One bottle and one quarter bottle were taken out as sample from each of petties respectively. The first 09 petties were assigned serial No. 1 to 9 and sample were assigned serial NO. S1 to S9 and other 11 petties were assigned serial No. A1 to A11 and samples were assigned serial No. AS1 to AS11. 130 quarter bottles of illicit liquor in the same. Sample and case property were sealed with the seal of SCD. IO prepared Form Excise M-29 at spot. IO seized the case property i.e. illicit liquor vide memo Ex. PW2/A . IO also seized above said Maruti Car vide seizure memo Ex.PW2/B'. IO prepared the Rukka and FIR was got registered. Thereafter, IO handed over same to Second IO HC [ENTITY] to whom further investigation of this case was marked. Ist IO handed over case property and case file to Second IO. IInd IO arrested accused [ENTITY] vide arrest memo Ex. PW2/C and his personal search was carried out vide memo Ex.PW2/D . IO prepared the site plan. Thereafter, they went to PS Nangloi and case property was deposited in malkhana. PW-2 correctly identified accused persons and case property in the court. PW2 was examined, cross-examined and was discharged.
5. PW3 ASI [ENTITY] has deposed that on 29.02.2004, he was posted at Special Staff, West District, Office at Tagore Garden as HC and on that day, he alongwith Ct. [ENTITY], Ct. [ENTITY] and Ct. [ENTITY] were present at Nangloi Chowk "[ENTITY]" in a Maruti Car. At about 07:00 am, one secret informer met him and informed that one Maruti Car was present near [ENTITY] having illicit liquor. After receiving the information, he asked 5-6 public persons to join the raiding party but none of them agreed and left the spot without disclosing their name and addresses citing their own genuine problem. Thereafter, without wasting time, he prepared raiding party consisting of Ct. [ENTITY], Ct. [ENTITY], and Ct. [ENTITY] and thereafter, they alongwith secret informer went to Sultan Puri Railway Fatak, at about 07:10 am where they found in the left side of Fatak, on vacant plot one white Maruti Car bearing registration NO. HR35A-7874. The gate of driver side of above said Maruti Car was in open condition and [ENTITY] alongwith his co-accused [ENTITY] were sitting in the same. Accused [ENTITY] was apprehended at the spot whereas accused [ENTITY] managed to flee from the spot. When they inquired from accused [ENTITY] , he disclosed name of the driver as [ENTITY] . PW3 further deposed that when they checked the above mentioned car, they found 20 petties rapped in black polythene which were kept on back seat and in the dikki of the above mentioned car. Meanwhile, public persons also gathered at the spot to whom he asked to join the investigation but none of them joined. They took the gatta petties out from the car and checked and found 09 petties containing 12 bottles each of Comando XXX Rum and 11 petties were containing 48 quarter bottles each of [ENTITY]. One bottle and one quarter bottle were taken out as sample from each of petties respectively. The first 09 petties were assigned serial No. 1 to 9 and sample were assigned serial NO. S1 to S9 and other 11 petties were assigned serial No. A1 to A11 and samples were assigned serial No. AS1 to AS11. 130 quarter bottles of illicit liquor in the same. Sample and case property were sealed with the seal of SCD. Seal after use was handed over to Ct. [ENTITY]. PW3 prepared Form Excise M-29 at spot Ex. PW3/A. PW3 seized the case property i.e. illicit liquor was seized vide memo already Ex. PW2/A and also seized above said Maruti Car vide seizure memo already Ex.PW2/B . PW3 prepared the Rukka, Ex. PW 1/B and handed over same to Ct. [ENTITY]. Ct. [ENTITY] got the FIR registered and came back at the spot alongwith copy of FIR and original Rukka and handed over same to Second IO HC [ENTITY] to whom further investigation of this case was marked. PW3 handed over case property and case file to Second IO. IInd IO arrested the accused [ENTITY] vide arrest memo Ex. PW2/C his your personal search was carried out vide memo Ex.PW2/D . PW-3 further deposed that second IO prepared the site plan. Second IO recorded statements of witnesses. Thereafter, they left the spot. PW-3 correctly identified accused persons and case property in the court. PW3 was examined, cross-examined and was discharged.
6. PW4 has deposed that on 29.02.2004, he was posted at Special Staff, West District, Office at Tagore Garden and on that day, he received DD No. 4, thereafter, he went to the spot i.e. near [ENTITY] where he met with [ENTITY] , Ct. [ENTITY], Ct. [ENTITY] and Ct. [ENTITY]. Ist IO [ENTITY] handed over to him accused [ENTITY]. Ist IO handed over case property and case file to him. Meanwhile, Ct. [ENTITY] also reached at the spot and handed over copy of FIR and original rukka to him. Accused [ENTITY] was arrested vide arrest memo Ex. PW2/C and his personal search was carried out vide memo Ex.PW2/D. PW4 prepared the site plan Ex. PW4/A at the instance of [ENTITY]. PW4 recorded statement of witnesses. Thereafter, they went to PS Nangloi and case property was deposited in malkhana. PW-4 further deposed that on 11.03.2004, he asked Ct. [ENTITY] to deposit the samples at Excise Lab, ITO. PW4 recorded statement of MHC(M). PW4 has also deposed that on 06.05.2004, he arrested accused [ENTITY] at the instance of secret informer from Peera Garhi Bus Stand vide arrest memo Ex. PW4/B and conducted his personal search vide memo Ex. PW4/C. PW4 recorded disclosure statement of accused [ENTITY] vide memo Ex. PW4/D. PW4 also prepared pointing out memo Ex. PW4/E at instance of accused. PW4 tendered the excise report as Ex. PW4/F. After completion of investigation, PW4 filed the charge sheet in the court for judicial verdict. PW4 correctly identified the case property and accused persons in the court. PW4 was examined, cross-examined and was discharged.
STATEMENT OF ACCUSED
7. After closure of prosecution evidence, the statements of both the accused persons were recorded under [SECTION] of [ACT]. Incriminating evidence was put to them. They denied all the allegations and stated that they are innocent and have not committed any offence. Both accused persons opted not to lead any evidence in their defence.
8. Final arguments heard. Record is perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. In the present case, accused has been charged for committing an offence under [SECTION] of [ACT]. All witnesses are official witnesses. In order to prove the guilt of the accused, prosecution has to prove that the accused was found in possession of illicit liquor in contravention of notification issued by Delhi Administration and thereby committed an offence under [SECTION] of [ACT]. Prosecution has examined PW1, PW2 and PW3 to prove the recovery of illicit liquor from the accused. However, the witnesses have not deposed regarding any concrete effort to join public witnesses being made by them at the time of affecting the alleged recovery of illicit liquor, despite their availability on the spot.
10. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In my view, the non-joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
In case titled as "[PRECEDENT], it was held as that "where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected".
In the case of "[PRECEDENT], it has been observed that :-
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye- witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "[PRECEDENT], it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "[PRECEDENT] it has been observed as under :-
"It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "[PRECEDENT], in which it was observed as follows :-
"[ENTITY] has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. 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 Subhash Bazar, there would be no person present at a crucial time like 7.30 pm 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 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 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. In the case of "[PRECEDENT], the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "[PRECEDENT], conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "[PRECEDENT], it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "[PRECEDENT] and "[PRECEDENT], it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
11. On 22.03.2012, the case property was produced first before the Court and it was observed that the case property has been produced in twenty (20) petties without seal and without case particulars and in open condition containing bottles and quarter bottles. This shows that there might be tempering with the case property when the same was kept in the Malkhana. It further caste the shadow of doubt on the case of the prosecution as the condition of the case property contradict the testimony of prosecution witnesses.
In the case of "[PRECEDENT] it was observed as under :-
"During the trial when the case property was produced namely the components of the still, there was no identify mark or chit on the case property to indicate that it related to the alleged recovery pertaining to the petitioner. There was no FIR No. or even chit placed on such a property. When such is the situation, the said property could be used in each and every case against anybody. There has to be proper identification of the property."
In the case of "[PRECEDENT], it was held that recovery was not corroborated by the evidence of official witnesses since "the case property produced before the trial court does not bear any identity marks".
In the case of "[PRECEDENT], it has been held that all the links starting from the seizure of sample till the same reaches the hands of public analyst must be proved to conclude that the seals remained intact.
In the case of "[PRECEDENT], it has been held that in the absence of any link evidence that the property deposited in the malkhana remained intact till brought before the Court, accused is entitled to benefit of doubt.
In the case of "[PRECEDENT], it was observed as under :-
"Similarly, in the present case by not examining [ENTITY] of the Police Station where the case property was kept, the prosecution has not been able to establish the chain to prove that the case property after being seized remained intact without being tampered with throughout the particularly when it remained in the Malkhana. Hence, for this short reason, it must be held that the appellant could not have been convicted of the offence punishable under [SECTION] of the [ACT]."
12. There are other facts/contradictions also on the record which erodes the credibility of prosecution evidence. The prosecution witnesses have deposed that IO seized the case property vide seizure memo before preparation of Rukka and before sending the Rukka for registration of the case. If, we believe that the illicit liquor was seized vide seizure memo before sending of the Rukka then how come the seizure memo bear the particulars of this case. The seal after use was not handed over to any independent witness and the same also creates a doubt whether the case property was genuinely recovered in this matter or not. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as [CASE NUMBER]. In these circumstances, the above-said facts erode the credibility of the prosecution evidence and accused can not be convicted on the basis of such evidence.
13. In view of the aforementioned facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused [ENTITY] and [ENTITY] beyond reasonable doubt. I give benefit of doubt to accused [ENTITY] and [ENTITY]. Accused [ENTITY] and [ENTITY] are accordingly, acquitted for the offence under [SECTION] of [ACT]. Case property be confiscated to the State and be destroyed after expiry of period of appeal.
14. File be consigned to Record Room after due compliance. Announced in open Court on July 12, 2013.
([ENTITY]) M.M.-03/THC (WEST), Delhi/12.07.2013