IN THE COURT OF SH. SANDEEP GARG, METROPOLITAN MAGISTRATE (SOUTH)07, NEW DELHI FIR No. 459/2004 U/[SECTION] [ACT] PS Mehrauli State Vs. [ENTITY] JUDGMENT:
a The Sl. No. of the case : 382/1/04 b The date of commission : 19.07.2004 c The name of complainant : Ct. [ENTITY] d The name of accused : [ENTITY] : S/o Sh. [ENTITY], R/o : Village Baliawas, District : Gurgaon, Haryana. e The offence complained of : 61/1/14 [ACT] f The plea of accused : Pleaded not guilty g The final order : Acquitted h The date of such order : 12.04.2012 i The date of institution of the case : 30.09.2004 j Date of hearing final arguments and final adjourning the matter for orders : 12.04.2012 BRIEF REASONS FOR THE DECISION:
1. In brief, case of the prosecution against accused [ENTITY] is that on 19.07.2004, at about 01:15 am, at Andheria Mor, MG Road, New Delhi, within the jurisdiction of PS Mehrauli, he was found ferrying illicit liquor in 10 carton boxes containing 12 bottles in each carton box of Mastana Brand FIR No. 459/2004 PS Mehrauli in a Maruti car bearing registration no. DL3CA3708, without any permit or license and thereby, committed an offence punishable u/[SECTION] [ACT]. On the basis of rukka sent by [ENTITY], FIR was registered for offence u/[SECTION] [ACT]. The case was investigated into. The investigation ended in the filing of the charge sheet u/[SECTION] [ACT] charging both the accused with the commission of an offence punishable u/[SECTION] [ACT].
2. Vide order dated 06.12.2008, the accused was charged for offence u/[SECTION] [ACT] to which he pleaded not guilty and claimed trial.
3. To substantiate its case on judicial file, prosecution has examined PW [ENTITY], who is IO of the case as well as a recovery witness. PW Ct. [ENTITY] and Ct. [ENTITY] were on patrolling duty in the area of Andheria Mor and are recovery witnesses. Ct. [ENTITY] had deposited the sample with Excise Lab. Statement of accused in terms of [SECTION] [ACT] was recorded on 30.03.2012, whereby he had not disputed genuineness of FIR, report of chemical examiner. PE was closed and statement of accused was recorded U/[SECTION] [ACT], wherein accused denied the case of prosecution in toto. However, accused did not intend to lead DE.
4. I have heard Ld. APP for the State, the Ld. defence counsel and gone through case file very carefully.
5. It is submitted by Ld. APP for the State that by virtue of evidence available on judicial file, accused is liable to be convicted for the offence punishable u/[SECTION] [ACT]. On the other hand, Ld. counsel for FIR No. 459/2004 PS Mehrauli accused submits that the accused has been falsely implicated in the present case and he is totally innocent.
6. I have gone through the material on judicial file very carefully.
7. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
8. In my opinion, as a cumulative effect of following reasons the accused is entitled to be acquitted of the charge against him:
(a) [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 FIR No. 459/2004 PS Mehrauli 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.
In the present case, the above said provision appears to have not been complied with by prosecution. As per the prosecution version, at the time of the apprehension of the accused with illicit liquor bottles in his possession, Ct. [ENTITY] and Ct. [ENTITY] were on patrolling duty in the area of Andheria Mor, but the DD entries vide which they had left the PS for patrolling duty has not been brought on record. Even the number of the said DD entries made in Register No. II has not been brought on judicial record. In my opinion prosecution was under an obligation to prove on record, the above said DD entries vide which Ct. [ENTITY] and Ct. [ENTITY] left the PS so as to prove the possibility of availability of Ct. [ENTITY] and Ct. [ENTITY] at the place of apprehension of the accused. At this juncture, it would be relevant to refer to a case law reported as [PRECEDENT] the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution FIR No. 459/2004 PS Mehrauli version and attributes oblique motive on the part of the prosecution.
9. In the present case, after the apprehension of accused, at about 01:15 am, [ENTITY] made no efforts to join public witnesses in the investigation. This failure on their part goes to suggest that he did not make sincere efforts to join the public witnesses in the police proceedings. At least in the facts and circumstances of the present case, [ENTITY] could have very well served the passersby the notice in writing requiring them to join the police proceedings or to face action 187 [ACT] in as much as in the present case there was no possibility of accused escaping his apprehension/arrest or crime going undetected in as much as by the said time, accused stood already apprehended by the police. Also in the present case, time of apprehension of accused is a routine evening time and it cannot be said that accused was apprehended at odd hours. Failure on the part of prosecution to make sincere efforts for joining independent public witness in the proceedings when they are available creates reasonable doubt in the prosecution in view of the following case laws.
In a case law reported as [PRECEDENT], Hon'ble High Court of Delhi has observed as under:
"18. 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 shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from FIR No. 459/2004 PS Mehrauli 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 shop keepers because they could not have escaped the rigours 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]".
In a case law reported as [PRECEDENT], the Hon'ble Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses FIR No. 459/2004 PS Mehrauli from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as [PRECEDENT], the Hon'ble Punjab & Haryana High Court observed as under:
"5. 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".
"6. In the present case, the State examined two witnesses namely, [ENTITY] ASI who appeared as PW1 and [ENTITY] PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries 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 FIR No. 459/2004 PS Mehrauli the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability 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".
10. In the present case, seal after use on the case property was given to Ct. [ENTITY] who is a material prosecution witness being witness to the recovery of liquor from the possession of the accused. To my mind, in such circumstances, chances of fabrication with the case property cannot be ruled out in as much as a material prosecution witness is always interested in the conviction of the accused. Further, it is pertinent to note that no memo has been placed on record showing the date and time when the seal was returned to [ENTITY] by Ct. [ENTITY]. Both PW [ENTITY] and PW Ct. [ENTITY] are silent in this regard absolutely.
11. In the present case, the MHC(M), PS Mehrauli with whom the case property and sample liquor both were deposited has not been examined as a prosecution witness. To my mind, this failure on the part of prosecution is fatal for the case of prosecution in as much as in the absence of deposition of MHC(M), PS Mehrauli, chances of fabrication with the case property cannot be ruled out beyond reasonable doubt. To rule out the possibility of fabrication with case property, prosecution was under obligation to examine all the officers/officials possessing the case property/sample property with a specific positive deposition that so long as the case property/ sample property remained in their possession it was not tampered with. FIR No. 459/2004 PS Mehrauli
13. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, the accused is acquitted of the charge levelled against him. His bail bonds are cancelled and surety is discharged. Original documents of surety, if any, be returned after cancellation of endorsement. Case property be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to Record Room.
Announced in the open ([ENTITY]) Court on 12.04.2012 MM(South)07, New Delhi. FIR No. 459/2004 PS Mehrauli