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Delhi District Court

State vs Kapil on 18 October, 2024

                                                         State Vs. Kapil


         IN THE COURT OF MS. PAYAL SINGAL
   JUDICIAL MAGISTRATE FIRST CLASS-09, CENTRAL,
             TIS HAZARI COURTS, DELHI

State Vs Kapil
FIR No. 526/2016
PS. Burari
U/s 33 Delhi Excise Act
CC No. 4945/2017
                              JUDGMENT

1) CNR Number of the case : DLCT02-010280-2017

2)The date of commission of offence : 16.10.2016

3) The name of the complainant : HC Dheeraj

4) The name & parentage of accused : Kapil S/o Sh. Madan

5) Offence complained of : u/s 33 Delhi Excise Act

6) The plea of accused : Not guilty

7) Final order : Acquittal Date of Institution : 02.05.2017 Judgment reserved on : 25.09.2024 Judgment announced on : 18.10.2024 BRIEF FACTS :

1) Vide this judgment, I shall decide the fate of the abovementioned FIR.

2) The brief case of the prosecution is that on 16.10.2016, at about 09.50 p.m. in open place in gali at Khasra No. 16/15, Gali NO.11, Shiv Kunj, B-Block, Sant Nagar, Burari, Delhi, within the jurisdiction of PS. Burari, FIR No. 526/2016, PS Burari Page No.1/11 Digitally signed PAYAL by PAYAL SINGAL SINGAL 16:00:49 Date: 2024.10.19 +0530 State Vs. Kapil the accused was found carrying one white plastic katta on his shoulder containing 50 quarter bottles of illicit liquor, each bearing label 'Falcon dabang santara masaledar desi sharab' For sale in Haryana only, 180 mL each without any license, permit or pass and in contravention of the notification issued by the Delhi government. Thereby, the accused has committed an offence punishable u/s 33 Delhi Excise Act, 2009.

3) After completion of the investigation, the chargesheet was filed in the court, upon which cognizance was taken u/s 33 Delhi Excise Act and after complying with the provisions of Section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), arguments on the point of charge were heard and the formal charge was framed u/s 33 Delhi Excise Act against the accused Kapil to which he pleaded not guilty and claimed trial. Thereafter, the case was proceeded further for prosecution evidence.

PROSECUTION EVIDENCE:

4) Before proceeding with the prosecution evidence, it is relevant to mention here that during the course of trial, the accused had admitted the Report of Chemical Analyser (Ex. AD/A1/CAR). Thus, the said witness was not summoned. Furthermore, PW/ASI harish Chander could not be examined as a witness as report was received of his passing away.

PAYAL Digitally signed by PAYAL SINGAL SINGAL Date: 2024.10.19 16:00:57 +0530 State Vs. Kapil

5) Accordingly, to bring home the guilt of the accused, the prosecution examined the remaining three witnesses in support of its case i.e. PW-1 ASI Satyapal, PW-2 HC Dhiraj Kumar and PW-3 HC Arun. Now, the testimonies of all these witnesses shall be discussed one by one.

6) PW-1 ASI Satyapal deposed that on 16.10.2016, he was posted at PS Burari as ASI/DO from 4 pm to 12 am when he received a Rukka through Ct Arun as sent by HC Dheeraj at about 11.30 pm, on the basis of which FIR No. 526/2016 u/s 33 Delhi Excise Act was recorded. He further deposed that a computerized copy of the said FIR alongwith the Rukka was given to Ct Arun to handover the same to ASI Harish and one copy was kept for the record at PS. PW-1 further deposed about the fact that no tampering was done with the contents of the FIR entered into the computer which was under his safe custody. He then deposed that he made endorsement on rukka and that certificate under Section 65B, Indian Evidence Act was signed by him. The said witness was not cross-examined by the Ld. counsel for the accused despite opportunity given.

7) PW-2 HC Dheeraj stated that on 16.10.2016, he was posted as HC at PS Burari and was on patrolling duty with Ct Arun at Pusta Road, Jharoda chowki when at about 9.50 p.m., a secret informer informed him that a person was selling illicit liquor outside his house in Gali no.11, Shiv Kunj. PW-1 further stated to have made a raiding party and FIR No. 526/2016, PS Burari Page No.3/11 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:

2024.10.19 16:01:06 +0530 State Vs. Kapil having asked public persons to join the investigation, all of whom refused to do so and went away without disclosing their names or addresses and due to paucity of time, no notice could be served upon them. PW-1 then stated that he alongwith Ct Arun reached at Gali No.11 and at the instance of the secret informer, accused was apprehended and it was found that there was a white colored katta lying on the stairs on the street. Thereafter, PW-1 deposed that on search of the katta, the same was found to contain 50 quarter bottles of illicit liquor and on inquiry, the particulars of the accused were found out. PW-1 then stated to have prepared M-71 form on the spot. Then, he stated that from the katta, one quarter sample quarter bottle was taken out and sealed with the seal of DK and the seal was handed over to Ct Arun. Then, PW-1 deposed to have recorded his own statement and sending it to the PS after talking with the SHO concerned through Ct Arun whereafter, ASI Harish was sent on the spot and the accused was handed over to him. The said witness was cross-examined on behalf of the Ld. APP wherein he stated that it was correct that the bottles had the label " Falcon's Dabang Santra Masaledar Desi Sharab for sale in Haryana only, 180 mL." He further stated that indeed the label of orange and white was affixed on them and that "Frost falcon Distilleries Ltd. Haryana Excise" was written on the caps of the bottles. PW-1 further agreed that he filled form M-29 and not form M-71 and that he prepared the tehrir, FIR No. 526/2016, PS Burari Page No.4/11 PAYAL Digitally signed by PAYAL SINGAL SINGAL Date: 2024.10.19 16:01:13 +0530 State Vs. Kapil site plan and the seizure memo.

8) PW-3 HC Arun deposed that on 16.10.2016, he was posted as Ct at PP Jharoda, Burari and he was on patrolling duty with HC Dheeraj when at about 9.50 pm, information was received from the secret informer that one person was selling illicit liquor in gali No.11, Shiv Kunj. Thereafter, PW-3 stated to have reached the spot with HC Dheeraj and found one person in possession of a plastic sack which was found to contain 50 quarter bottles of illicit liquor with the label of Santra, for sale in Haryana only. PW-3 further stated to have asked public persons to join the investigation, all of whom refused to do so and went away and due to paucity of time, no notice could be served upon them. PW-3 then stated that HC Dheeraj took out one sample quarter bottle from the plastic bag and the same was tied with a white cloth and sealed with the seal of DK and the remaining quarter bottles were kept in the same plastic sack, the mouth of the sack tied with a white cloth and sealed with the seal of DK. PW-3 also stated that thereafter, HC Dheeraj prepared the tehrir and he left the spot with the tehrir for the PS. PW-3 further stated that on reaching the PS, he handed over the tehrir to DO who registered the FIR and handed him the computerized copy of the same with directions to hand it over to ASI Harish.

PW-3 then stated to have left for the police post where he met ASI Harish and handed him the computerized copy of FIR and original tehrir. Then, PW-3 stated to have returned FIR No. 526/2016, PS Burari Page No.5/11 PAYAL Digitally signed by PAYAL SINGAL SINGAL Date: 2024.10.19 16:01:21 +0530 State Vs. Kapil to the spot with IO/ASI Harish who prepared the site plan at the instance of HC Dheeraj in his presence. PW-3 then stated that the accused was arrested vide arrest memo in his presence and his statement was recorded by the IO. Lastly, PW-3 stated that he alongwith IO/ASI harish, HC Dheeraj and the accused came to the PS whereafter, the case property and seal was deposited in Malkhana. Finally, PW-3 stated to have got the medical examination of the accused conducted along with the IO, lodging the accused in PS Lock up. The said witness correctly identified the photographs of the case property and the accused.

9) All the witness were duly cross examined by the Ld. Defence counsel wherein some material facts have come on record which shall be duly dealt with in the reasoning part of the judgment.

STATEMENT OF THE ACCUSED:

10) After recording the testimony of all the witnesses, the PE was closed and thereafter, the statement of the accused u/s 313 Cr.P.C. was also recorded. In the said statement, the accused denied all the allegations levelled against him and stated that he had been falsely implicated in the present case. The accused further stated that he did not want to lead any DE and accordingly, the matter came up for final arguments.

FINAL ARGUMENTS:

PAYAL Digitally signed by PAYAL SINGAL SINGAL Date: 2024.10.19 16:01:29 +0530 State Vs. Kapil

11) Arguments on behalf of the accused were advanced by ld. counsel Sh. Sanjeev Bisla and by Sh. Rohit Lohat, Ld. APP on behalf of the State.

12) It was argued by the Ld. counsel for the accused that the prosecution had failed to prove the guilt of the accused beyond all reasonable doubt. It was argued that the non-

joinder of public witnesses despite availability and non- handing over of the seal to any independent witness cast a shadow of doubt upon the prosecution story. It was also argued that no photography/videography of the case property was done on the spot, in the absence of which, it cannot be said that the illicit liquor was recovered from the possession of the accused. Accordingly, it was argued that a reasonable doubt had been raised in the case of the prosecution, the benefit of which was necessarily to go to the accused.

13) Per contra, it was argued by the Ld. APP for the state that there were ocular and documentary evidence on record to bring home the guilt of the accused. It was argued that all the prosecution witnesses had corroborated the testimony of each other and no material contradictions were brought on record by the accused. Accordingly, it was argued that the state had proved its case beyond reasonable doubt and that the accused be convicted of the offence u/s 33 Delhi Excise Act.

14) I have heard the arguments from both the sides and have carefully perused the record.

PAYAL by PAYAL SINGAL SINGAL Date: 2024.10.19 State Vs. Kapil REASONS FOR THE JUDGMENT:

15) It is settled proposition of criminal jurisprudence that 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 case appears to be improbable or lacks credibility, the benefit of doubt, necessarily has to go to the accused.

16) In the present case, the accused has been charged for committing an offence punishable under Section 33 Delhi Excise Act and all prosecution witnesses are official witnesses. In order to prove the guilt of the accused, the prosecution had to prove that the accused was found in possession of illicit liquor in contravention of the applicable law which in the opinion of the court, the prosecution has miserably failed to do. The only police witness who was actually present on the spot and has supported the case of the prosecution is PW-3; PW-2 failed to disclose material facts owing to which he was also cross-examined by the Ld. APP and the IO could not be examined, having been passed away. PW-1 was only the DO who recorded the FIR and nothing material came from his testimony about the actual investigation on the spot.

17) The prosecution has examined the police witnesses to prove that illicit liquor was recovered from the possession of the accused. Admittedly, the alleged spot of FIR No. 526/2016, PS Burari Page No.8/11 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:

2024.10.19 16:01:45 +0530 State Vs. Kapil recovery is a public place, as has been deposed by all the witnesses and as is also evident from the site map, however, the witnesses have not deposed regarding any concrete effort to join public witnesses. Though it has come in the testimony of PWs that the public persons were asked to join the investigation, however, the said persons refused to join the investigation, citing one or the other difficulties and due to paucity of time, no notices could be served upon them. Ergo, it can be said that public witnesses were admittedly not joined in investigation, although available. Taking a pause here, I find it relevant to note the judgment of Hem Raj v. State of Haryana AIR 2005 SC 2110, wherein it has been observed that :

"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance.".

18) Furthermore, all witnesses have admitted that after the case property was sealed, the seal was handed over by HC Dheeraj to Ct Arun, but no handing over memo of the seal was prepared, which again brings the case of the FIR No. 526/2016, PS Burari Page No.9/11 Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:

2024.10.19 16:01:53 +0530 State Vs. Kapil prosecution under shadow. Infact, PW-2 HC Dheeraj stated that till date, his seal had not been returned back to him. In present case the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh v. State of Haryana 2007 (3) R.C.R. (Criminal) 452 , the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".

19) Moreover, as per the version of the prosecution, accused was in possession of illicit liquor without any licence/permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to find out about the source from where the same was arranged by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same but the charge-sheet is completely silent upon the said fact.

20) Lastly, it also assumes relevance that no FIR No. 526/2016, PS Burari Page No.10/11 PAYAL Digitally signed by PAYAL SINGAL SINGAL Date: 2024.10.19 16:02:01 +0530 State Vs. Kapil photography or videography of the case property was done at the spot to show that the illicit liquor was recovered from the possession of the accused.

21) Therefore, in view of the discussion made herein above and the facts and circumstances of the present case, the court is of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Kapil stands acquitted of the offence under section 33 of Delhi Excise Act, 2009 that he has been charged with.

(Announced in open Court on 18th October 2024 ) (The judgment contains 11 pages and all the pages bear my signatures) (Payal Singal) JMFC-09/Central District Delhi/18.10.2024 Digitally signed by PAYAL PAYAL SINGAL Date:

                                                        SINGAL            2024.10.19
                                                                          16:02:08
                                                                          +0530




FIR No. 526/2016, PS Burari                             Page No.11/11