Delhi District Court
Ps Anand Parbat vs Unknown on 13 March, 2020
IN THE COURT OF SHRI RAKESH KUMAR-II,
METROPOLITAN MAGISTRATE : WEST-05
TIS HAZARI COURTS, DELHI
FIR No. : 78/2014
P.S. : Anand Parbat
Case No. 4156/2019
State
v.
Sanjeev @ Sanju, S/o Sh. Vijay Kumar
R/o House No. 203, Gali No. 6,
Nehru Nagar, Anand Parbat, Delhi.
Date of institution of case : 25.10.2016
Date of reserving the judgment : (not reserved)
Date of pronouncement of judgment : 13.03.2020
JUDGMENT
1. S. No. of the Case: 4156/2019
2. Date of Commission of Offence: 24.02.2014
3. Date of institution of the case: 25.10.2016
4. Name of the Informant: HC Anil Kumar
5. Name of the accused : Sanjeev @ Sanju
6.Offence : 33 Delhi Excise Act
7. Plea of Accused: "Not Guilty"
8. Final Order: Acquitted
9. Date of Final Order: 13.03.2020
FIR No. 78/14 State v. Sanjeev @ Sanju 1 of 15
PS Anand Parbat
BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly, the facts of the case as per prosecution are that on 24.02.2014 at about 4:35 P.M. at Gali No. 6, Anand Parbat towards the Zakhira Flyover, Delhi, the accused was found in possession of 49 quarter bottles of illicit liquor. The present FIR was registered against the accused and after the completion of the investigation, the chargesheet was filed before the Court. The cognizance of the offence was taken and summons were issued to the accused. The copy of the charge-sheet and the documents in compliance of Section 207 CrPC were supplied to the accused.
2. The charge was framed against the accused for offence punishable under Section 33 Delhi Excise Act on 23.01.2018 to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the prosecution evidence.
3. In prosecution evidence, the prosecution has examined 04 witnesses. The report of the chemical examiner was admitted under Section 294 CrPC. The testimony of the witnesses in a nutshell are as below:
PW1 HC Ashok was the recovery witness: He deposed that on 24.02.2014 he was on patrolling duty alongwith FIR No. 78/14 State v. Sanjeev @ Sanju 2 of 15 PS Anand Parbat HC Anil Kumar and while patrolling, when they reached at Nehru Nagar Subji Mandi, one secret informer met HC Anil Kumar and informed that one person would come from Zakhira Flyover side and would go towards Gali No. 6 having illicit liquor in his possession, could be apprehended, if raided. Thereafter, HC Anil Kumar asked 4-5 public persons to join the investigation but none agreed and went away and without wasting any time, HC Anil Kumar prepared raiding party consisting of PW1 and HC Anil Kumar. Thereafter, he alongwith HC Anil Kumar and secret informer took their positions and sat near the wall of Gali No. 6, Nehru Nagar and after sometime, secret informer pointed out towards one person who was coming from the side of Zakhira Flyover carrying one katta and told that he is the same person who is carrying illicit liquor in the katta. Thereafter, he alongwith HC Anil Kumar started proceed towards the person and on seeing them, accused turned back and started moving fastly. Thereafter, they apprehended the said person, who disclosed his name as Sanjeev @ Sanju. Thereafter, they checked the katta and found containing 49 quarter bottles of illicit liquor out of which, 24 quarter bottles were of NV Besto Whiskey (for sale in Arunachal Pradesh only) and the remaining quarter bottles were of Rasila Santra Masaledar Deshi Sharab (for sale in FIR No. 78/14 State v. Sanjeev @ Sanju 3 of 15 PS Anand Parbat Haryana only). Thereafter, IO took out one sample bottle from each brand and the remaining quarter bottles were kept in the katta. Both the sample bottles were tied with one cloth and sealed the same with seal of "APRVT-II".
The katta was also tied with one cloth and sealed with seal of "APRVT-II". Thereafter, IO prepared tehreer and handed over the same to him for registration of FIR and accordingly, he left the spot and went to PS Anand Parbat for registration of FIR and after getting FIR registered, the investigation was marked to HC Charan Singh. Thereafter, he alongwith HC Charan Singh went to the spot. HC Charan Singh recorded the disclosure statement of accused which is Ex.PW1/A. HC Charan Singh prepared site plan at the instance of first IO. Thereafter, accused was personally searched vide personal search memo Ex.PW1/B and accused was arrested vide arrest memo Ex.PW1/C. Thereafter, they returned back to the police station alongwith the case property and accused. The case property alongwith the samples were deposited in the malkhana. Thereafter, accused was sent to lockup after medical examination.
PW1 was cross examined at length by the Ld. Defence counsel.
PW2 Const. Narender: He deposed that on 03.06.2014, MHC(M) has handed over the case property to him for FIR No. 78/14 State v. Sanjeev @ Sanju 4 of 15 PS Anand Parbat depositing the same at Excise Lab, ITO. Thereafter, he went to Excise Lab, ITO to deposit the case property vide RC No. 65/21/14 and after depositing the case property, he returned back to PS Anand Parbat and handed over the receipt to MHC(M) and case property is not tampered with till it remained in his possession.
PW3 HC Charan Singh: The witness deposed that on 24.02.2014 the investigation of this case was handed over to him. Thereafter, he alongwith Const. Ashok went to the spot i.e. Gali No. 6, Nehru Nagar where HC Anil Kumar met them and handed over the copy of FIR and original rukka. HC Anil Kumar had handed over the seizure memo of the illicit liquor, case property, Form M- 29 and accused. He had mentioned the particulars of the FIR on the seizure memo of the illicit liquor. Thereafter, he prepared the site plan at the instance of HC Anil Kumar which is Ex.PW3/A. Thereafter, he arrested and personally searched accused. He had also recorded the disclosure statement of accused. He had recorded the statement of HC Anil at the spot and he was discharged from the spot. Thereafter, he alongwith Const. Ashok, accused and case property came to the police station and case property was deposited in the malkhana. After medical examination of accused, he was lodged in police FIR No. 78/14 State v. Sanjeev @ Sanju 5 of 15 PS Anand Parbat lock up. He had recorded the statements of witnesses.
PW3 further deposed that on 03.06.2014, he had sent the sample of the illicit liquor to Excise Lab, ITO through Const. Narender and on 16.07.2014, he had received the report from Excise Lab which is Ex.AD-1. He had recorded the statement of Const. Narender. After completion of investigation, he prepared the chargesheet and filed the same before the Court.
PW3 HC Charan Singh was cross examined by Ld. Defence Counsel at length.
PW4 HC Anil was the recovery witness. He deposed that on 24.02.2014 he alongwith Const. Ashok were on patrolling duty and when they reached at Nehru Nagar Subji Mandi, one secret informer met him and informed that one person would come from Zakhira Flyover side and would go towards Gali No. 6 having illicit liquor in his possession, could be apprehended, if raided. Further, he deposed on the same lines as deposed by PW1. PW4 also deposed that he asked 4-5 public persons to join the investigation but none agreed and went away without disclosing their names and addresses but due to paucity of time he did not serve notice to them. Thereafter, he constituted a raiding party consisting of him and Const. Ashok. He further deposed that he alongwith HC Anil FIR No. 78/14 State v. Sanjeev @ Sanju 6 of 15 PS Anand Parbat Kumar apprehended the accused person. Accused was checked who was carrying katta and he was found carrying katta containing 49 quarter bottles of illicit liquor. Thereafter, he took out one sample from each brand and remaining quarter bottles were kept in the katta. Both the sample bottles were tied with one cloth and sealed with the seal of APRVT-II. Thereafter, he seized both sealed pulindas vide seizure memo Ex.PW1/D. Thereafter, IO prepared one tehreer which is Ex.PW4/A and handed over the same to Const. Ashok for registration of FIR. After registration of FIR, Const. Ashok alongwith HC Charan Singh came at the spot as further investigation of present case was marked to him. Thereafter, he handed over all the documents to HC Charan Singh.
4. After the prosecution evidence was closed, the matter was kept for the statement of the accused. The statement of accused under Section 281 read with Section 313 CrPC was recorded on 06.03.2020. The accused did not opt to lead the defence evidence. Thereafter, the final arguments were heard. I have given thoughtful consideration to the submissions of the accused and the State.
5. Before proceeding further, it will be pertinent to go through Section 33 of the Delhi Excise Act, 2009 with which the accused has FIR No. 78/14 State v. Sanjeev @ Sanju 7 of 15 PS Anand Parbat been charged in the present case which is as follows:-
33 Delhi Excise Act, 2009. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. - whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any license, permit or pass, granted under this Act -
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale;
(d) uses, keeps or has in his possession any material, still utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari;
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term FIR No. 78/14 State v. Sanjeev @ Sanju 8 of 15 PS Anand Parbat which shall not be less than six months but which may extend to three years and with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees.
ANALYSIS AND FINDINGS Re: Absence of independent witnesses
6. Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from a densely populated area at around 4:35 P.M. The apprehension and recovery were allegedly made at about 4:35 P.M. Thus, at the place and time of the alleged recovery of illicit liquor and apprehension of the accused, public persons would in all likelihood have been present and available or have at least passed by the spot. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
7. PW1 and PW4 who were recovery witnesses stated that they have requested public persons to join the investigation however, they refused and left away without giving name and address. They further stated that no notice was given to any person who refused to join the investigation due to paucity of time. It is relevant here to note that neither PW1 nor PW4 had mentioned description of the persons who had allegedly FIR No. 78/14 State v. Sanjeev @ Sanju 9 of 15 PS Anand Parbat refused to join the investigation. Further, there is nothing on record to show that PW1 or PW4 had served any notice under Section 160 Cr.P.C upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by recovery witnesses who were police officials to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. Section 100 (4) of the CrPC. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
8. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses 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 but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
Re: Other infirmities in the prosecution case
9. PW1 and PW4 were recovery witnesses. PW1 had deposed that case property was seized vide seizure memo Ex.PW1/D. PW4 stated that he seized the case property vide seizure memo Ex.PW1/D, filled Form M-29 at the spot and thereafter he prepared a tehreer vide Ex.PW4/A and FIR No. 78/14 State v. Sanjeev @ Sanju 10 of 15 PS Anand Parbat sent the tehreer through Const. Ashok for registration of FIR. It is, therefore, clear that the seizure memo of the liquor was prepared at the spot before the tehreer was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Const. Ashok. Thus, ordinarily, the FIR number should not find mention in the seizure memos, which came into existence before registration of the FIR. However, interestingly, the seizure memo bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as under:
"... 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 rukka 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 FIR No. 78/14 State v. Sanjeev @ Sanju 11 of 15 PS Anand Parbat copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 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."
10. In paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender FIR No. 78/14 State v. Sanjeev @ Sanju 12 of 15 PS Anand Parbat 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 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."
11. In the present case also, no explanation has been furnished on FIR No. 78/14 State v. Sanjeev @ Sanju 13 of 15 PS Anand Parbat record as to how the FIR number and case details have appeared on the seizure memos. The same leads to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
CONCLUSION
12. The facts that no independent witness was cited or examined and the appearance of FIR number and case particulars on the seizure memo has not been explained, all aforesaid inconsistencies when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
13. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
FIR No. 78/14 State v. Sanjeev @ Sanju 14 of 15 PS Anand Parbat
14. In light of above discussion it can be safely said that prosecution has remain unsuccessful in proving guilt of accused beyond reasonable doubt. Therefore benefit of doubt is hereby given to accused and accused Sanjeev @ Sanju is hereby acquitted for charges of commission of offence under Section 33 Delhi Excise Act, 2009.
Digitally signed by RAKESH RAKESH KUMAR
KUMAR Date: 2020.03.13
16:40:09 +0530
Announced in open Court (RAKESH KUMAR-II)
on 13th day of March 2020 Metropolitan Magistrate
West-05, Delhi
FIR No. 78/14 State v. Sanjeev @ Sanju 15 of 15
PS Anand Parbat