IN THE COURT OF SHRI SUNIL KUMAR, METROPOLITAN MAGISTRATE, ROHINI DISTRICT COURTS, DELHI. UID No. 02404R0145502014 FIR No. 21/12 U/s. : 33 [ACT]. P.S. : Bhalaswa Dairy State Vs. [ENTITY] JUDGMENT
1. Sl. No of the case : 287/2/12 2. Date of institution of the case : 21.03.2012 3. Date of the commission of the offence : 15.02.2012 4. Name of the accused : [ENTITY] S/o Sh. [ENTITY], R/o. VPO Nahri, District Sonepat, Haryana. 5. Name of the complainant : [ENTITY] 6. Offence complained of : 33 [ACT] 7. Plea of accused : Pleaded not guilty 8. Final order : Acquitted 9. Date of such order : 21.12.2015 STATEMENT OF THE REASONS FOR THE DECISION :-
Briefly stated, the prosecution case is that on 15.02.2012 at about 10:00 pm at Mukundpur Nala Pul, Village Mukundppur, Delhi within the jurisdiction of PS Bhalaswa Dairy, the accused was found in possession of 34 cartons containing 50 quarter bottles in each carton of Narangi Masaledar Desi Sharab, separately other 40 quarter bottles of same brand desi sharab, 96 quarter bottles of Besto Whisky, which were carried by him in Santro bearing no. HR-10C-6177 as per seizure memo Mark-X without any permit or licence.
2. After investigation, charge sheet was filed against the accused. Copies of charge sheet were supplied to the accused in compliance to the [SECTION] State v. [ENTITY] FIR No.21/12 PS Bhalaswa Dairy 1 [ACT] (hereinafter mentioned as [ACT]) and charge for the offence punishable U/[SECTION] of [ACT] was framed by Ld. Predecessor of this Court against the accused, to which he pleaded not guilty and claimed trial.
3. In support of the version, the prosecution has examined four witnesses out of nine witnesses as cited in the list of witnesses.
4. PW1 [ENTITY] and PW2 Ct. [ENTITY] deposed on the same lines about the proceedings carried out by them at spot. PW-1 has proved the Excise Form as Ex.PW1/A, seizure of case property as Ex.PW1/B, seizure of Santro car as Ex.PW1/C, rukka as Ex.PW1/D and the case property as Ex.P1 to P3. PW2 has proved the arrest and personal search memos of the accused as Ex.PW2/A and Ex.PW2/B. These witnesses were cross-examined by the Ld. defence counsel.
5. PW3 [ENTITY] being the duty officer has proved FIR as Ex.PW3/A and endorsement on the rukka as Ex.PW3/B. This witness was not cross-examined by the Ld. defence counsel despite opportunity for the same.
6. PW4 Ct. [ENTITY] received through MHC(M) sealed sample bottles and Excise Form M-29 and deposited the same with Excise Laboratory vide RC no.76/21/2 and handed over the copy of RC to the MHC(M). This witness was not cross-examined by the Ld. defence counsel despite opportunity for the same.
7. Despite ample opportunities, the prosecution has failed to conclude PE.
State v. [ENTITY] FIR No.21/12 PS Bhalaswa Dairy 2 Accordingly, PE stands closed.
8. The accused was examined under [SECTION] [ACT] and all the material evidence against him was put to him and he refuted all the allegations leveled against him and submitted that he is innocent and has been falsely implicated in this case by the police. However, he did not opt for leading evidence in his defence. Thereafter, the case was fixed for final arguments.
9. Ld. Counsel for the accused has submitted that the accused has been falsely implicated in this case by the police officials. It is further argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there are no independent witnesses to corroborate their testimonies. It is further argued that nothing was recovered from the possession of the accused and the recovery, if any, is the planted one upon the accused. It is further argued that there is material contradictions in the testimony of the witnesses, which is fatal to the case of Prosecution. Since the prosecution could not establish the case against the accused for the alleged offence beyond shadow of doubt, it is, therefore, prayed that the accused may be acquitted of the alleged offence.
10. On the contrary, Ld. APP for the State has submitted that every discrepancy in statements of the witnesses could not be fatal to the Prosecution case. It is further argued that the discrepancies which does not effect the Prosecution case materially does not create infirmity and there is no material discrepancies/contradictions in the Prosecution case. It is further argued that the prosecution has successfully established its case against the accused. Hence, it is, prayed that the accused may be convicted accordingly.
State v. [ENTITY] FIR No.21/12 PS Bhalaswa Dairy 3
11. I have heard Ld. Counsel for the accused, Ld. APP for the State and perused the material on record carefully.
12. I have given my thoughtful consideration to the testimonies of the witnesses and perused the entire material on record carefully and observed that as per the prosecution story the accused was found in possession of illicit liquor without any license or permit, but the prosecution could not prove the said allegations upon the accused.
13. As per the deposition of PW2 during cross-examination the IO has requested some public persons to join the investigation but none obliged. It seems that no attempt has been made by the police to join independent public persons in the proceedings despite availability of such witnesses. After the apprehension of the accused, IO of the case could very well have served the passersby/public witnesses with notice in writing to join the police proceedings in as much as at that point of time accused already stood apprehended and there was no possibility of accused escaping his arrest or crime going undetected. At least in the facts and circumstances of the case in my opinion IO must have asked the passersby/persons available at the spot by serving them notice in writing and in case of their refusal IO must have taken action against them U/[SECTION] [ACT]. Facts and circumstances of the case suggest that no sincere efforts have been made by police official to join independent public witnesses in the police proceedings. In this regard reliance is being placed on the following judgments:-
In a case law reported as [PRECEDENT], Hon'ble High Court of Delhi has observed as under:
State v. [ENTITY] FIR No.21/12 PS Bhalaswa Dairy 4 It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigorous of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the [ACT] .
Further in case law reported as [PRECEDENT] the Hon'ble Punjab & Haryana High Court observed as under:-
In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused
14. In the present case, the State has examined four witnesses, out of them PW1 and PW2 are the member of the raiding party and the recovery witness, who noticed the accused with illicit liquor. PW1 and PW2 have supported the prosecution version in terms of the recovery of illicit liquor from the possession of accused, but there was no public witness who had joined in the investigation. It is not necessary in such a recovery that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-
State v. [ENTITY] FIR No.21/12 PS Bhalaswa Dairy 5 availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version.
15. The prosecution has failed to prove beyond doubts that accused was found in possession of illicit liquor. The prosecution has failed to explain as to why no public person was made to join the investigation. No arrival or departure entry of police has been filed on record to prove their presence at the spot. This casts doubt over the testimonies of PWs as all the witnesses listed in the list of witnesses are police officials and no independent public witness was made to join investigation.
16. I have heard the Ld. counsel for the accused and also perused the record. PWs have categorically stated in his examination that the rukka was sent to P. S. for registration of the FIR after the seizure of liquor. However, perusal of the seizure memo reveals that it bears the particulars of the case including the FIR number. In [PRECEDENT] has held as under:
" The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW-2/A had appeared on the top of the said documents, which were allegedly prepared on the spot before its registration. This gives rise to two inferences that either the FIR(Ex.PW-2/A) 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 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. That being so, the benefit arising out of such a situation must necessarily to go to the appellant."
State v. [ENTITY] FIR No.21/12 PS Bhalaswa Dairy 6
17. Moreover, connecting evidence is not placed on record to complete chain of events. No corroborating evidence in the form of DD entry vide which PWs have left the police station for patrolling duty is proved on record. It casts doubt over the presence of the PWs who are police officials and are required to make their arrival or departure entry. Thus evidence which came on the record does not inspire confidence of the court. Also in this case no efforts were made to hand over the seal after use in the presence of independent public persons and in such cases in view of [PRECEDENT] and [PRECEDENT] benefit of doubt is to be given to the accused.
18. In view of the facts and circumstances of the case, it is crystal clear that the prosecution has failed to prove its case beyond the shadow of reasonable doubt. There is no convincing evidence on the record, which could substantiate any charge upon the accused and it can safely be concluded that in the present case the evidence on the record is not at all sufficient to hold the accused guilty of the alleged offence, as the prosecution story is highly doubtful and the benefit of doubt is the right of the accused. It is also an established law of the land that the accused should not be convicted in doubtful circumstances. Even, if there are two views possible, the view favourable to the accused has to be accepted. Since, the Prosecution has failed to establish a case against the accused for the alleged offence beyond reasonable doubt, I am also not inclined to convict the accused in doubtful circumstances. Consequently, by giving benefit of doubt, I hereby acquit the accused [ENTITY] for the offence punishable U/[SECTION] [ACT].
19. Case property, if any, be destroyed in accordance with rules on expiry State v. [ENTITY] FIR No.21/12 PS Bhalaswa Dairy 7 of period of Appeal/Revision, if none is preferred or subject to decision thereof.
At this stage, fresh bail bond, surety bond furnished by the accused in compliance of [SECTION] [ACT] are accepted.
The file be consigned to record room.
Announced and dictated in the ([ENTITY]) open court on 21.12.2015 Metropolitan Magistrate-03/North, Rohini Courts/Delhi State v. [ENTITY] FIR No.21/12 PS Bhalaswa Dairy 8