STATE DELHI ADMINISTRATION Vs. BITO

JUDGEMENT

(1.) This is an acquittal appeal preferred against the order dated 2nd June, 1979 passed by Shri Dinesh Dayal, Metropolitan Magistrate, Delhi, acquitting the respondent of the charge under section 61/1 (a) of Punjab Excise Act. The respondent was put on trial on the charge that on 27th December, 1976 she was found in possession of 120 bottles of illicit liquor weighing 16 ounces each.

(2.) In respect of recovery of illicit liquor from the respondent three witnesses, Gurmail Singh A.S.L, Chanderbhan, S.L and Harbans Singh Chawla, E.S.I. were examined at trial and all of them have stated that while they were going together for excise checking and at 6.30 p.m. while they were passing from B Block they noticed respondent dragging a gunny bag with her both hands in the gate of her house No. B-45, Madipur, Delhi. The bag was checked and they discovered a black tube containing illicit liquor, Sixteen ounces of liquor was taken out as sample and the remaining liquor was transferred into three plastic cans and after measuring it was found to be 120 bottles of 16 ounces each. A sample as also three cans were sealed with the seal bearing mark NS and the seal was handed over to Harbans Singh Chawla who on the relevant date was working as Excise Inspector in the Excise Department. Recovery memos were prepared including that of sample bottle which are respectively Ex. P-i, P-2, P-3, P-3/1-3 and P.W. 2/A. Personal search of the respondent was also conducted and the memo Ex. P.W. 2/B was prepared.

(3.) The trial Magistrate held that the eye, witness account about the recovery is one and all the aforesaid three witnesses have provided complete corroboration to each other. The learned trial Magistrate, however, felt that there was some discrepancy in the testimony of P.W. 4 Harbans Singh Chawla and P.W. 5 Chanderbhan in respect of the place where the seizure memos were prepared. It will be noticed that P.W.S Chanderbhan had stated that the writing work had been done on the spot under the light of electric pole which was at a distance of about 20 steps from the place of recovery while P.W. 4 Harbans Singh Chawla had stated that writing work was done on the spot inside the court-yard of the house of the accused where the light was coming from the lamp in the house as also from the street electric pole. The trial Magistrate felt that this was a material contradiction and assumed on this basis that P.W. 4 Harbans Singh Chawla was not on the spot. The learned trial Magistrate also on this basis felt that under these circumstances it was doubtful that the seal was procured from the Excise staff, as the presence of P.W. 4 Harbans Singh Chawla at the scene was doubtful. On this unimportant and small contradiction in the testimony of P.W. 4 and P.W. 5 on the point where the recovery memos were written the learned Magistrate has given benefit of doubt to the accused respondent and acquitted her.