Delhi District Court
State vs Sunny on 16 March, 2023
IN THE COURT OF MS. DEEKSHA SETHI, MM-03, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-016518-2019 FIR No. : 909/2017 U/s : 33 Delhi Excise Act P.S. : Bindapur State versus Sunny a) ID. No. of the Case : 8972/2019 b) Name & address of the : Ct. Sunil Kumar Complainant No. 1775/SW, PIS No. 28103291, PS Bindapur, Dwarka District, New Delhi. c) Name & address of : Sunny accused S/o Sh. Shashi Kapoor R/o H.No. A-46, Vishu Vihar, Uttam Nagar, New Delhi. d) Date of Commission of : 13.12.2017 offence e) Offence complained of : 33 Delhi Excise Act State v/s Sunny Page 1 of 15 Cr. Case No. 8972/2019 f) Plea of the accused : Pleaded not guilty. g) Ld. APP for the State : Sh. Manish Kaushik h) Final Order : Acquitted h) Date of Institution : 04.04.2019 i) Judgment Pronounced on : 16.03.2023 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 13.12.2017, Ct. Sunil Kumar (hereinafter referred to as the 'complainant') was on patrolling duty in beat no. 4 and at about 11:00 AM, when he had reached in B-Block, DDA Flat, Pocket III, Bindapur, Near Gautam Nursing Home, one person namely Sunny (hereinafter referred to as 'accused') was carrying one heavy plastic katta over his head. After seeing Ct. Sunil Kumar, the accused started walking in the opposite direction. The complainant stopped the accused. When Ct. Sunil Kumar checked the katta, it was found to be containing one carton box of liquor (Impact Grain Whiskey for Sale in Haryana Only, 180 ml). Thereafter, the complainant informed about the said incident to the duty officer at the police station and police official from PS Bindapur reached at the spot. Thereafter, an FIR bearing no. 909/2017 u/s 33 Delhi Excise Act was registered at PS Bindapur. Investigation of the case was thereafter handed over to Investigating Officer HC Kailash Prasad.
State v/s Sunny Page 2 of 15 Cr. Case No. 8972/2019Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Sunny. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against him, to which he had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined the following witnesses:
(i) PW-1 Ct. Sunil has deposed that he was posted at PS Bindapur as a constable on 13.12.2017 and on the said date, he was present at beat no. 4 during patrolling duty. When he reached at D-block, DDA Flat, Pocket-III, Bindapur, near Gautam Nursing Home, he saw that one person was carrying a heavy plastic katta on his head. On seeing him (PW-1), the said person (accused Sunny) turned back. PW-1 stopped him and on checking the said katta, he found out that it contained a carton box of illicit liquor of Impact Green Whiskey for sale in Haryana only. He had shared the said information with the State v/s Sunny Page 3 of 15 Cr. Case No. 8972/2019 duty officer of the police station. IO HC Kailash had reached at the spot and he (PW-1) had handed over the custody of the accused along with illicit liquor to the IO. The IO had asked four-five persons to join the investigation, but none of them agreed and all left the spot without disclosing their name and addresses. Upon checking, the IO found out that the carton box contained 48 quarter bottles (180 ml each) of Impact Green Whiskey for sale in Haryana only. IO had taken one quarter bottle as sample and had put back the remaining 47 quarter bottles into the katta. IO had tied the opening of the katta with a white cloth and sealed it with the seal of 'KP'. He (the IO) had also sealed the sample with the seal of 'KP'. IO had filled Form M-29 at the spot and the illicit liquor was seized vide memo Ex. PW-1/A. The seal was handed over to him (PW-1) by the IO after use. IO had recorded his statement (Ex. PW-
1/B). IO had also recorded the disclosure statement of accused (Ex. PW-1/E). After preparation of tehrir, IO had handed over the same to him and had sent him for registration of FIR. After getting the FIR registered, he came back at the spot and handed over the original tehrir as well as a computerized copy of the FIR to the IO. The IO had prepared the site plan (Ex. PW-1/D) at his instance. IO had arrested the accused vide memo Ex. PW-1/F and conducted his personal search vide memo Ex. PW-1/G. The State v/s Sunny Page 4 of 15 Cr. Case No. 8972/2019 witness correctly identified the accused in court. MHC(M) had produced one un-sealed sample quarter bottle of case property which had the case particulars mentioned on it and the same was exhibited as Ex. P-1. The remaining case property was destroyed vide order bearing no. F-
Conf./2019/815-16 dated 26.04.2019 issued by Deputy Commissioner (Excise), Delhi in the present case and the same was exhibited as Ex. P-2. This witness was thoroughly cross-examined by Ld. Defence counsel.
(ii) PW-2 HC Surender has deposed that on 12.11.2018, he was posted as head constable at PS Bindapur. On the said date, he had taken sample of illicit liquor, sealed with the seal of 'KP', from MHC(M)CP, PS Bindapur vide RC No. 336/21/18 and deposited the same at Excise Laboratory Office, IP Estate. He handed over a copy of the receipt to MHC(M). The IO had recorded his statement. This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
(iii) PW-3 HC Kailash Prasad has deposed that on 13.12.2017, he was posted at PS Bindapur as a head constable. On receipt of DD No. 26D regarding illicit liquor, he reached at D-block, DDA Flat, Pocket-III, Bindapur, near Gautam Nursing Home, where he met Ct. Sunil, who had handed over the custody of accused Sunny along with illicit liquor to State v/s Sunny Page 5 of 15 Cr. Case No. 8972/2019 him. He had asked four-five public persons to join the investigation, but none of them agreed and left the spot without disclosing their names or addresses. He checked the carton box and he found out that it contained 48 quarter bottles (180 ml each) of Impact Green Whiskey for sale in Haryana only). He had taken one quarter bottle as sample and put the remaining quarter bottles in the katta and sealed its opening as well as the sample with a white cloth with the seal of 'KP'. He had filled Form M-29 at the spot. He had seized the recovered illicit liquor vide seizure memo Ex. PW-1/A. The seal was handed over to Ct. Sunil after use vide memo Ex. PW-1/B. He recorded the disclosure statement of the accused (Ex. PW-1/E). After preparing the tehrir, he made an endorsement thereat (Ex. PW-2/A) and handed it over to Ct. Sunil to get the FIR registered. Thereafter, Ct. Sunil returned at the spot and handed over a computerized copy of FIR along with tehrir to him (PW-3). He had prepared the site plan Ex. PW-1/D. The accused was arrested vide memo Ex. PW-1/F and his personal search was conducted vide memo Ex. PW-1/G. The case property was deposited at the malkhana of the police station. The case sample was sent to ITO Office through HC Surender on 12.11.2018. The witness correctly identified the accused in court. MHC(M) had produced one un- sealed sample quarter bottle of case property which State v/s Sunny Page 6 of 15 Cr. Case No. 8972/2019 had the case particulars mentioned on it and the same was exhibited as Ex. P-1. The remaining case property was destroyed vide order bearing no. F- Conf./2019/815-16 dated 26.04.2019 issued by Deputy Commissioner (Excise), Delhi in the present case and the same was exhibited as Ex. P-2. This witness was thoroughly cross-examined by Ld. Defence counsel.
(iv) PW-4 W/HC Mamta has deposed that on 13.12.2017, she was posted at PS Bindapur as woman constable. On that day, she was working as DD writer and her duty timings were 8:00 AM to 4:00 PM. At about 11:15 AM, she had received information about recovery of illicit liquor. She reduced the said information into the roznamcha register and prepared DD No. 26B. The same was exhibited as Ex. PW-4/A. She thereafter, informed HC Kailash about the said information through telephone and sent a copy of the DD Entry to him for further investigation. This witness was not cross- examined by Ld. Defence counsel despite having been given an opportunity to do so.
(v) PW-5 ASI Arvind has deposed that on 13.12.2017, he was posted at PS Bindapur as MHC(M) CP. On that day, on the direction of IO HC Kailash Prasad, he had collected the case property and samples, Form M-29 as well as copy of relevant documents like seizure memo, sealed with the seal of 'KP'. The State v/s Sunny Page 7 of 15 Cr. Case No. 8972/2019 same were deposited at the malkhana of the police station by him vide mud no. 2416/2017 and the relevant record was exhibited as Ex. P-1. On 13.12.2017, he had handed over the sealed exhibits vide RC No. 336/21/18 to HC Surender, who had gone to the Excise Office, ITO to deposit the same for result analysis. HC Surender had handed over the receipt regarding the same to him. The relevant record was exhibited as Ex. P-2. The witness stated that he did not tamper with the exhibits during the time they were in his possession. This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
5. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR bearing no. 909/2017 without contents and result analysis of Excise Control Laboratory. The above-said documents were exhibited as Ex. A-1 and Ex. A-2 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC was recorded on 28.02.2023 wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was innocent and falsely implicated. The accused chose not to lead any evidence in his defence.
State v/s Sunny Page 8 of 15 Cr. Case No. 8972/20197. It is argued by Sh. Manish Kaushik, Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of 48 quarter bottles of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court
10. It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11. The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the State v/s Sunny Page 9 of 15 Cr. Case No. 8972/2019 prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the examination of PW-1 Ct. Sunil (the complainant) and PW-3 HC Kailash Prasad (the IO) reveals that the IO had asked four-five public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.'' (Emphasis supplied) State v/s Sunny Page 10 of 15 Cr. Case No. 8972/2019
13. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
14. Perusal of the record further reveals that there is a delay of about eleven months in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re- sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."State v/s Sunny Page 11 of 15 Cr. Case No. 8972/2019
15. In the instant case, alleged recovery was made on 13.12.2017 yet the samples were sent to the Excise Control Laboratory for examination on 12.11.2018, i.e., after about eleven months. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
16. Perusal of the tehrir Ex. PW-2/A as well as cross- examination of PW-1 Ct. Sunil further reveals that PW-3 HC Kailash Prasad (the IO) had first prepared the seizure memo Ex. PW-1/A of the case property as well as Form M- 29 (Ex. PW-1/D1) and after that rukka was prepared and sent to the police station for registration of FIR through PW-1 Ct. Sunil and thereafter, present FIR was registered. It is, therefore, clear that the seizure memo of the illicit liquor as well as Form M-29 were prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, registered after the preparation of the seizure memo Ex. PW-1/A of the illicit liquor as well as Form M-29 (Ex. PW-1/D1), however, surprisingly, seizure memo Ex. PW-1/A and Form M-29 bear the FIR number and it is thus, amazing since the number of the FIR could have come to his knowledge (PW-3) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could State v/s Sunny Page 12 of 15 Cr. Case No. 8972/2019 have been mentioned by the IO on seizure memo, which came into existence before registration of the FIR. However, as discussed above, the seizure memo Ex. PW- 1/A of the illicit liquor and Form M-29 (Ex. PW-1/D1) bear the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
(Emphasis supplied) State v/s Sunny Page 13 of 15 Cr. Case No. 8972/2019
17. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) 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 the 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."
(Emphasis supplied)
18. In the present case also, it remains unexplained as to how the FIR No. and its details figure on the top of the documents, i.e., seizure memo Ex. PW-1/A as well as State v/s Sunny Page 14 of 15 Cr. Case No. 8972/2019 Form M-29 Ex. PW-1/D1. This creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said document was prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.
19. Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a katta which contained illicit liquor was recovered from the possession of the accused. The accused Sunny is, therefore, acquitted of the offence u/s 33 Delhi Excise Act.
20. This judgment contains 15 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
21. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
Digitally signed by ANNOUNCED IN THE OPEN COURT Deeksha Deeksha Sethi Date:
TODAY, i.e., ON 16.03.2023 Sethi 2023.03.16 16:14:59 +0530 Deeksha Sethi Metropolitan Magistrate-03 South-West District/New Delhi 16.03.2023 State v/s Sunny Page 15 of 15 Cr. Case No. 8972/2019