IN THE COURT GAURAV RAO: METROPOLITAN MAGISTRATE: DELHI In Re: STATE VERSUS SMT. SEETA DEVI [CASE NUMBER] U/[SECTION] [ACT] Date of Institution of Case : 08.05.2000 Date of Judgment Reserved for : 20.12.2011 Date of Judgment : 20.12.2011 JUDGEMENT:
(a) The serial no. of the case : 16/3/00 (b) The date of commission of offence : 22.09.1999 (c) The name of complainant : ASI [ENTITY]
(d) The name, parentage of the accused : Smt. [ENTITY] W/o Sh. Kailash, r/o Jhuggi No. D1208, J.J. Camp, Gautam Nagar, New Delhi.
Present Address : As above (e) The offence complained of : U/[SECTION] of [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 20.12.2011
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 22.09.1999 at about 6.30 pm at service road, [ENTITY] Park, Defence Colony, New Delhi within the jurisdiction of police station Defence Colony, accused Smt. [ENTITY] was found in possession of a plastic katta containing 100 pouches of illicit liquor (200 ml each) without any permit or licence and in contravention of notification issued by Delhi Administration and thus thereby the accused committed an offence punishable u/[SECTION] of [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] [ACT], the documents were supplied to the accused. Thereafter vide order dated 30.04.2002, charge u/[SECTION] of [ACT] was framed against accused to which she pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined seven witnesses. Thereafter, the statement of the accused u/[SECTION] [ACT] was recorded wherein she claimed herself to be innocent.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW 1 Ct. [ENTITY] deposed that on 22.09.1999 he was posted at PP Gulmohar Park, PS Defence Colony and vide [CASE NUMBER] he took the sample bottle along with paper sealed with the seal of AO and deposited in excise office and on 28.09.1999 he deposited the receipt of the same in PS Malkhana. He deposed that till the sample remained in his possession nobody tempered with the same.
During his cross examination he stated that he does not remember the time when he took the samples and whether any DD entry was made before leaving the PS. He admitted that he took only sample bottle and RC to deposit in excise office. He stated that he cannot tell the name and designation of official to whom he handed over the sample and RC. He stated that he cannot tell the time when he came back from excise office. He denied the suggestion that he did not go to excise office or he was deposing falsely or sample was tempered.
5. PW 2 Ct. [ENTITY] deposed that on 22.09.1999, he was posted at PP Gulmohar Park, PS Defence Colony and he along with ASI [ENTITY] and Lady Ct. [ENTITY] were on patrolling and at about 6.00 pm when they reached at Service road, Gautam Nagar near J.J. Camp, ASI received a secret information that one lady would come from the side of Masjid mor village having a plastic bag containing illicit liquor and will go towards J.J. Camp, Gautam Nagar. He deposed that on receipt of secret information, several persons were asked to join the raiding party but none agreed and went away. He deposed that a raiding party was prepared and while they were proceeding towards the spot, Ct. [ENTITY] of excise also met them and he was also joined in the raiding party. He deposed that [ENTITY] was done near Tikona park in front of [ENTITY], J.J. Camp and at about 6.30 pm, at the instance of secret informer, they saw one lady was coming carrying a plastic bag on her head. She was stopped and on checking the said bag, they found 100 pouches of country made liquor masaledar. Thereafter, he was sent by the IO to take a plastic cane and one empty bottle from nearby [ENTITY] shop and he brought the same. He deposed that the sample and case property were sealed with the seal of AO and seal after use was handed over to lady Ct. [ENTITY] and case property was taken into possession vide memo Ex.PW2/A. Thereafter, rukka was prepared and handed over to him for registration of the case which he took to PS and got registered the FIR and after registration of FIR, he returned back to the spot and handed over the FIR and rukka to ASI [ENTITY]. He deposed that the accused was arrested by ASI and personal search memo was prepared. He deposed that his statement was recorded by [ENTITY] who came at the spot to help ASI [ENTITY]. He again said that personal search memo was prepared by [ENTITY] and he handed over the FIR and rukka to [ENTITY] at the spot.
This witness further identified the case property i.e. pouches as Ex.P1 to P100, liquor in cane as Ex.P101 and bag as Ex.P102.
During his cross examination he stated that he does not remember when they left the PP vide DD No. 17. He stated that the information was not reduced in writing. He stated that the place of information was at a distance of about 100 from where the accused was apprehended. He stated that Ct. [ENTITY] met them at about 6.15 pm on the service road, Gautam Nagar. He stated that the spot from where the accused was apprehended was at a distance of 100150 yards from the place where Ct. [ENTITY] met them. He stated that there were residential houses near the spot however, no person was called by the IO from the residential houses to join the investigation or recovery. He stated that IO did not give any notice in his presence to those persons who refused to join the raiding party. He stated that he saw the accused first time at a distance of 100 meters while she was coming with a plastic katta on her head. He stated that after seeing them, the accused did not try to run away or throw the katta on the ground. He stated that the accused was stopped in a gali Tikona Park. He stated that no public person gathered there. He stated that he cannot tell the name of the [ENTITY] from whom the bucket and bottle were brought. He stated that he does not remember whether the IO had recorded the statement of the [ENTITY]. He stated that he went to take the bucket and bottle at about 6.45 pm. He stated that his statement was recorded by the IO but he cannot tell the time. He stated that he cannot tell first of all what documents were prepared. He stated that all writing work was done under the street light. He stated that he cannot tell the time when he took the rukka to PS. He stated that he cannot tell the time when [ENTITY] came at the spot. He stated that he cannot tell how many number of seals were affixed by the IO. He stated that he cannot tell the time when they came back to PS from the spot. He stated that he cannot tell the time when the case property was deposited in the malkhana. He denied the suggestion that no liquor was recovered from the possession of the accused or the accused had been falsely implicated in this case as she was called from her house or she was not present at the spot. He further denied the suggestion that he was deposing falsely at the instance of the IO or the case property was planted upon the accused at the PS.
6. PW 3 Ct. [ENTITY] deposed that on 22.09.1999 he was posted at Excise office, L Block, Vikas Bhawan, Delhi and on that day at about 6.10 pm, he was present near J.J. Camp Gautam Nagar, Service road where ASI [ENTITY], Ct. [ENTITY] and Lady Ct[ENTITY] him who were on patrolling and they informed him about the secret information and at that time, he was also having the same information. He further deposed on the same lines as deposed by PW 2.
This witness further identified the case property i.e. pouches as Ex.P1 to P100, liquor in cane as Ex.P101 and bag as Ex.P102.
During his cross examination he stated that he received the secret information at about 11.15 am. He stated that he did not reduce the secret information in writing and did not inform to PS regarding the same. He stated that the place from where they received the secret information and the spot was about 100 yards. He stated that the spot was a residential area but no public person was called to join the proceeding from those houses. He stated that his statement was recorded at 8.30 pm by [ENTITY] in Tikona Park. He stated that he cannot tell the time when [ENTITY] came at the spot. He stated that his statement was recorded in street light. He stated that he cannot tell what documents were prepared first by the IO. He stated that he cannot tell the time when Ct. [ENTITY] took the rukka to PS and when he came back to the spot. He stated that only three seals were put on the case property. He stated that jamatalashi of the accused was taken by lady Ct. at the spot. He stated that he left the spot at 8.30 pm. He denied the suggestion that the accused had been falsely implicated in this case. He denied the suggestion that the case property had been falsely planted upon the accused. He denied the suggestion that he was deposing falsely.
7. PW 4 [ENTITY] deposed that on 22.09.1999 he was posted at PP Gulmohar Park, PS Defence Colony and on that day on receipt of information from duty officer, he reached at Service road, Gautam Nagar, Tikona Park, [ENTITY] where he met ASI [ENTITY] who handed over him the case property and documents. He deposed that Ct. [ENTITY] also came there and handed over him the copy of FIR and rukka. He deposed that he arrested the accused and her personal search was conducted by lady Ct. [ENTITY] vide memo Ex.PW4/C. He deposed that he recorded the statement of the witnesses, prepared the site plan vide memo Ex.PW4/A at the instance of ASI [ENTITY] and issued a notice of arrest of the accused vide Ex.PW4/B. He deposed that he deposited the case property in malkhana along with excise form. He further deposed that on 28.09.1999 he sent the sample bottle to excise lab through Ct. [ENTITY].
During his cross examination he admitted that the cap of the cane was removable without breaking the seal. He stated that he reached at the spot at about 7.45 pm. He stated that he recorded the statement of the witnesses at the spot in street light. He admitted that he had not shown the street light and place of [ENTITY] in the site plan. He denied the suggestion that all the proceeding work was done in the PS. He stated that he recorded the statement of Ct. [ENTITY] in PS. He denied the suggestion that the accused had been falsely implicated or nothing was recovered from the accused.
8. PW 5 W/[ENTITY] deposed on the same lines as deposed by PW 2.
During her cross examination she stated that they started for patrolling at 6.00 pm and they were in uniform. She stated that the secret information was received at about 6.50 pm. She stated that the secret information was reduced in writing in her presence. She stated that the distance between the place from where they received the secret information and the spot was about 10 paces. She stated that there were residential houses near the spot but no public person was called from those houses to join the proceeding in her presence. She stated that she saw the accused for the first time at a distance of about 10 steps. She stated that the writing work was done at PP Gulmohar Park. She stated that her statement was recorded in PP at about 7.00 pm and she took the personal search of the accused in PP Gulmohar Park. She stated that nothing was recovered in the personal search of the accused. She denied the suggestion that the accused had been falsely implicated in this case or nothing was recovered from the possession of the accused. She denied the suggestion that she was deposing falsely or the case property was planted on the accused.
9. PW 6 SI [ENTITY] deposed that on 28.09.1999 he was posted as MHC(M) at PS Defence Colony and on that day he received the sealed sample bottle of illicit liquor vide [CASE NUMBER] from Ct. [ENTITY] and took the same to excise office and received the receipt of the same and came back to PS Defence Colony. He deposed that till the time the sample remained in his custody, the seal was not tempered with and was intact.
During his cross examination he stated that he does not remember the date on which he received the sample bottle. He admitted that IO recorded his statement on which he handed over the sample bottle to him. He admitted that the case property was deposited by the IO to him. He denied the suggestion that the sample bottle was not in his custody.
10. PW 7 SI [ENTITY] deposed on the same lines as deposed by PW 2 & 5.
During his cross examination he stated that he received the secret information at about 6.00 pm at service road [ENTITY]. He stated that he did not reduce secret information in writing and he also did not inform regarding the secret information in PS Defence Colony. He stated that the place from where they received the secret information and the spot was about 100 meters. He admitted that the spot was a residential area. He stated that he did not serve any notice to the public person who refused to join the investigation. He stated that he made DD entry for patrolling vide DD No. 17, PP Gulmohar Park. He stated that he made [ENTITY] at the spot at about 6.15 pm. He stated that all the writing work was done under the street light. He stated that Ct. [ENTITY] brought the plastic cane at about 7.00 pm but he cannot tell the name of [ENTITY] from whom the plastic cane and bottle were brought. He denied the suggestion that he was deposing falsely or no recovery was affected from the accused. He further denied the suggestion that the accused had been falsely implicated in this case.
11. I have heard the arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
12. The learned defence counsel has very vehemently argued that the case of the prosecution rests entirely upon the testimony of police witnesses and there is no independent corroboration thereof. It was further argued that the recovered liquor was planted upon the accused. It was also argued that a careful scrutiny of the testimony of the prosecution witnesses would reveal that they contradicted each other on material particulars. On the other hand, the Ld. APP argued that there is no requirement of law that independent witness be joined during investigation or raid or that the testimony of police official is unreliable in the absence of any independent corroboration.
13. I have heard the rival submissions. No doubt that Police officials/official witnesses are as good as any other witness however, when public persons were available and still they have not been joined in the investigation and no notice has been served upon them in case of refusal the prosecution case/their testimony has to be scrutinized stringently.
14. In [PRECEDENT] , titled as [PRECEDENT] it was observed as under :
When some witness from the public was available the explanation furnished by the prosecution that they refused to join the investigation, the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them .
15. In 1990 CCC 20 titled as [PRECEDENT] , it was further held that:
Joining of witnesses in the case of excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency it is always desirable that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation .
16. Further reliance can be placed upon "[PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT] wherein it has been observed that in the absence of public witness/nonjoining of public/independent witnesses the prosecution story has to be approached with caution more so when the investigation officer failed to take action against those who refused to join the alleged raid.
17. The testimony of the police official did not inspire confidence and is not sufficient to bring home the guilt against the accused. As is evident from the deposition of PWs, the place of alleged recovery was a very busy place, numerous residential houses were situated around the spot and many public persons were also present at the spot. However, none from the public could be joined by the police official during the alleged raid and seizure. The fact remains that no action was taken/no notice was served upon those who refused to join the investigation and even their names were not noted down and the explanation as furnished by the police officials is unreliable. In [PRECEDENT] it was observed that such explanations are unreliable. In the case of [PRECEDENT] and in the case of [PRECEDENT] it was observed that in case of failure to join independent witness benefit of doubt must be given to the accused.
18. In the present case, no efforts were made to hand over the seal after use to independent public persons and it remained with the officials of the Police Station only. In such cases in view of the case titled as [PRECEDENT] and [PRECEDENT] benefit of doubt is to be given to the accused. Till the time case property is not dispatched to the FSL the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of the seal, contraband and the samples being tempered with cannot be ruled out ([PRECEDENT].
19. Apart from the non joining of independent witness the prosecution story suffers from various loop holes. As per the deposition of PW 2 Ct. [ENTITY] he had brought empty bottle and cane for measuring the liqour from nearby a Kabari shop. However, the said Kabari/shop owner has not been arrayed as a witness. He was not joined in the investigation and his statement was not recorded by the IO. He was a material witness and his omission is unjustified. In fact, Ct. [ENTITY] and the IO failed to give even the name of the [ENTITY] shop from whom the empty bottle/cane was procured. The prosecution witnesses contradicted each other on material particulars for example though the IO and Ct. [ENTITY] claimed that the writing work was done at the spot however, PW 5 W/[ENTITY] deposed that the writing work was done at PP Gulmohar Park. It was also claimed by the IO that he did not reduce the secret information in writing but Ct. [ENTITY] contradicted him and claimed that the secret information was reduced in writing in her presence. PW 3 Ct. [ENTITY] who was from the excise department claimed that he had received the secret information at 11.15 in the morning however, neither he forwarded the information to PS Defence Colony nor the same was recorded in writing. This conduct/approach of Ct. [ENTITY] does not inspire confidences. More so when the other prosecution witnesses claimed that they received the secret information at around 6.50 in the evening.
20. Admittedly, no signatures of the person depositing the case property in the Malkhanna were taken in register no. 19 by MHC (M) and neither the signatures of the person who took the sample to FSL were taken. These circumstances especially when the seal was not handed over to independent persons and remained with the police offi cials of the same police station where the property was lying benefit of doubt must be given to the accused as observed in [PRECEDENT].
21. Neither the road certificate via which the sample was al legedly sent to Laboratory could be proved by the prosecution. In the absence of both these material documents/missing link in the prosecu tion story benefit has to be given to the accused. Reliance can be placed upon 1994 Drugs cases page 154 , titled as [PRECEDENT] and [PRECEDENT] , titled as [PRECEDENT] .
22. In this case the FIR number is mentioned on the recovery memo/seizure memo. Same is written in the same ink/pen/flow as the other particulars on the said documents. Admittedly this document was prepared before registration of F.I.R. In the case of [PRECEDENT] it was observed that when documents are prepared before registration of F.I.R. and it contains the F.I.R. No. then inference has to be drawn that either F.I.R. was recorded prior in time or the documents were prepared later on and in such cases benefit of doubt is to be given to the accused.
23. Lastly I may reiterate the observations made in [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and [PRECEDENT] where it has been held that failure of the Investigating Officer to join independent witnesses of the locality in investigation sounds the death knell of the prosecution case set up against accused and the accused is entitled to secure an acquittal on this score.
24. In view of the above discussion, I am of the considered opinion that the prosecution has not been able to prove the charges against the accused beyond the shadow of doubt. Accused is accordingly entitled for acquittal.
25. I order accordingly.
Announced in the open ([ENTITY]) Court on 20.12.2011 MM (SD)/Delhi. [CASE NUMBER] U/[SECTION] [ACT] 20.12.2011 Pr: Ld. APP for state.
Accused is present on bail along with his counsel. Matter is pending at the stage of S.A. Statement u/[SECTION] [ACT] of the accused has been recorded. She has claimed innocence however, she does not want to lead any defence evidence.
Ld. Defence Counsel has submitted that he is ready with the final arguments.
Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
([ENTITY]) MM (SD)/Delhi.
20.12.2011.