Delhi District Court
State vs Usha Devi on 23 April, 2024
1
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE01, DWARKA COURTS, DELHI
State Vs. : Usha Devi
FIR No : 77/ 2021
U/s : 33 Delhi Excise Act
P.S. : PALAM VILLAGE
1. Criminal Case No. : 11560/ 21
2. Date of commission of offence : 21.02.2021
3. Date of institution of the case : 16.09.2021
4. Name of the complainant : State
5. Name of accused & parentage : Usha Devi W/o Vijay Singh
6. Offence complained or proved : Section 33 Delhi Excise Act
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 20.03.2024
9. Final order : Acquitted
10. Date of final order : 23.04.2024
Present : Sh. Sudhanshu Saini Ld. APP for state.
Accused in person with Ld. Counsel Sh. Sameer Goel.
JUDGMENT
1. The accused Usha Devi is facing trial for offence U/S 33 Delhi Excise Act. The genesis of the prosecution story is that on 21.02.2021 at about 09:40 PM near DDA Park, beat no. 3, Raj Nagar Part II, Palam Colony, New Delhi FIR No. 77/2021 Digitally signed St. Vs. Usha Devi AISHWARYA by AISHWARYA SHARMA SHARMA Date: 2024.04.23 14:24:05 +0530 2 within jurisdiction of PS Palam village, the accused Usha Devi was found in possession of 100 quarter bottles of illicit liquor having label Spiced Country Spirit, manufactured by ADS Spirit Pvt. Ltd. for sale in Haryana only each measuring 180 ML without any permit or license. The criminal law was set into motion by registration of FIR against the accused and investigation into the case began. After completion of the investigation, the present chargesheet was filed for conducting trial of the accused persons for the alleged offences.
2. After taking cognizance of the offences, the copy of chargesheet was supplied to accused Usha Devi in compliance of section 207 Cr.P.C. The arguments on charges were heard and charge for offence U/S33 Delhi Excise Act was framed against accused Usha Devi on 26.09.2022. The accused pleaded not guilty and claimed trial. Thereafter, prosecution evidence was led.
3. In order to prove allegations against accused, prosecution has examined four prosecution witnesses.
4. The proceedings U/S 294 Cr.P.C. were conducted wherein accused admitted the factum of registration of FIR no. 77/ 2019 alongwith certificate u/s 65 B of IEA as Ex. A1, RC No. 82/21/21 as Ex. A2 and Excise result as Ex. A3, pursuant to the admission made by accused of these documents, witnesses at Sr. No. 2 and 3 are dropped from the list of witness.
5. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.04.23 14:24:15 +0530 FIR No. 77/2021 St. Vs. Usha Devi 3 prosecution witnesses, offence U/S33 of Delhi Excise Act has been proved beyond doubt.
6. Per contra, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused and that the accused has been falsely implicated by the police officials and the recovery of illicit liquor has been planted upon her. Arguing further, Ld. counsel has interalia submitted that no public witnesses were joined by the police officials during investigation. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused be given the benefit of doubt and is therefore, entitled to be acquitted.
7. Prior to delving into the contentions raised by the prosecution and defence, let us discuss the testimonies of the material prosecution witnesses in brief.
8. PW1 ASI Mahesh Pratap is the complainant in the present case and he deposed that on 21.02.2021, he alongwith Ct. Mandeep and W/Ct. Monika was on patrolling duty at beat No. 3, Raj Nagar PartII and at around 7:40 p.m, when they reached near DDA Park, Raj Nagar PartII, this witness noticed that accused was having two plastic kattas and upon getting suspicious, they went there and after warning the accused, the plastic kattas were checked and they were found containing two carton boxes each of illicit liquor make SPICED Country Spirit, ADS Spirit Pvt. Ltd., Haryana and the name of the accused was revealed as Usha Devi and the said information was shared with PS Palam village upon which HC Vinay Kumar came to the spot to whom they handed over the custody of the accused and case property and IO tried to join some Digitally signed AISHWARYA by AISHWARYA SHARMA FIR No. 77/2021 SHARMA Date: 2024.04.23 St. Vs. Usha Devi 14:24:24 +0530 4 public persons in the investigation but all left the spot after assigning their personal reasons. This witness further deposed that when IO checked the four carton boxes, each box was containing 50 quarter bottles of illicit liquor of aforesaid brand and thereafter, IO took out one sample bottle from each carton box and the said sample bottles were sealed with the help of white cloth and seal of VY and the remaining quarter bottles alongwith the carton boxes were placed in their respective kattas and were also sealed with the seal of VY. Form M29 was prepared and thereafter seal was handed over to Ct. Mandeep and the case property was taken into police possession vide seizure memo Ex.PW1/A Thereafter, this witness deposed that IO recorded his statement Ex. PW1/B and got the FIR registered through Ct. Mandeep and IO also prepared the site plan Ex. PW1/C at his instance and the accused was released after serving notice u/s 41 A Cr.P.C and the case property was deposited at Malkhana and thereafter, IO recorded statement of this witness. This witness correctly identified the accused in the court and deposed that he can identify the case property, if shown to him. The case property in the present case was already destroyed vide order dated 26.05.2020 i.e. Ex. PX1 and the identity of the case property was also not disputed by Ld. Defence counsel.
9. PW2 HC Mandeep deposed that he was accompanying PW1 HC Mahesh Pratap alongwith Wct. Monika on beat patrolling duty in Raj Nagar II and thus, he deposed on the same lines as that of PW1 and thus, his testimony is not being reproduced to avoid repetition. This witness correctly identified the accused in the court and deposed that he can identify the case property, if shown to him. The case property in the present case was already destroyed vide order Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.04.23 14:24:32 +0530 FIR No. 77/2021 St. Vs. Usha Devi 5 no. Con/Misc/2022/167475 dated 26.05.2020 i.e. Ex. PX1 and the identity of the case property was also not disputed by Ld. Defence counsel.
10. PW3 Wct. Monika deposed that on 21.02.2021, she was accompanying PW1 HC Mahesh Pratap alongwith Ct. Mandeep on beat patrolling duty in Raj Nagar II and thus, her deposition is on the same lines as that of PW1 and 2 and thus, her testimony is not being reproduced to avoid repetition. This witness correctly identified the accused in the court and deposed that he can identify the case property, if shown to him. The case property in the present case was already destroyed vide order dated 26.05.2020 i.e. Ex. PX1 and the identity of the case property was also not disputed by Ld. Defence counsel.
11. PW4 HC Vinay Kumar is the IO in the present case and he deposed that on 21.02.2021, on receipt of DD NO. 72 A, he went to the spot i.e DDA Park, Raj Nagar II, New Delhi, where HC Mahesh Pratap, Wct Manika and Ct. Mandeep met him and handed him over the custody of accused alongwith recovered case property i.e. two white kattas and the name of the accused was revealed as Usha Devi and thereafter, this witness narrated about the manner in which investigation was conducted by him and since the same has already come in testimony of PW1, thus, that portion of testimony of this witness is not being reproduced to avoid repetition. This witness additionally deposed that he filled Form M29 Ex. PW4/A bearing his signature at point A at the spot and thereafter, prepared Rukka Ex. PW4/B on the basis statement of PW HC Mahesh Pratap. This witness further deposed that notice u/s 41 A Cr.P.C Ex. PW4/C bearing signatures of this witness at point A was served upon the accused and she was released on furnishing of Pabandinama Ex. PW4/D bearing signature of this witness at point A. This witness further deposed that he FIR No. 77/2021 AISHWARYA Digitally signed by AISHWARYA SHARMA St. Vs. Usha Devi SHARMA Date: 2024.04.23 14:24:39 +0530 6 also prepared the interrogation report of the accused Ex. PW3/A bearing his signatures at point B and recorded statement of witnesses u/s 161 Cr.P.C. This witness correctly identified the accused in the court and deposed that he can identify the case property, if shown to him. The case property in the present case was already destroyed vide order dated 26.05.2020 i.e. Ex. PX1 and the identity of the case property was also not disputed by Ld. Defence counsel.
STATEMENT OF ACCUSED U/S313 Cr.P.C.:
12. Statement of the accused under Section 281/313 Cr.P.C. was recorded separately on 20.03.2024 in which all the incriminating circumstances appearing in evidence were put to her. The accused controverted and denied the allegations levelled against her and stated that she has been falsely implicated in the case. Accused further opted to not lead evidence in her defence, hence, DE was closed.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
13. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. In the present case, the Accused Usha Devi has been indicted for the offence U/S 33 of Delhi Excise Act.
14. In order to prove the offence under Section 33 of the Delhi Excise Act, the prosecution must establish the fulfilment of all the essential ingredients of the offence. The contents of Section 33 of the Delhi Excise Act are reproduced as follows:
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc.
1. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act--
FIR No. 77/2021 Digitally signed by
AISHWARYA AISHWARYA SHARMA
St. Vs. Usha Devi SHARMA Date: 2024.04.23
14:24:47 +0530
7
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 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 but which may extend to one lakh rupees."
15. It is also significant to note that Section 52 of Delhi Excise Act lays down a rebuttable presumption which goes as follows:
"Section 52. Presumption as to commission of offence in certain cases:
1. In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
2. ........."
16. It is trite law that the burden always lies upon the prosecution to prove it's case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.04.23 FIR No. 77/2021 14:24:54 +0530 St. Vs. Usha Devi 8 such doubt entitles him to acquittal. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a prerequisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, as discussed hereinafter, careful scrutiny of the evidence placed on record brings to light the fact that the case of the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible, owing to which, no presumption, as provided for under Section 52 of the Act, can be raised against the accused in the present case.
i). Doubtful Seizure Memo and Form M29.
17. A careful reading of the testimony of PW1 & 4 reflects that even before rukka was prepared and was sent to the P.S. through PW2 Ct. Mandeep, Seizure memo Ex. PW1/A was prepared and Form M29 Ex. PW4/A was filled and thereafter, upon registration of FIR, PW2 Ct. Mandeep came to the spot and then IO PW4 HC Vinay Kumar prepared the spot map and conducted further investigation. The narration of such a chronology of events leads to the irresistible conclusion that the seizure memo of the liquor and Form M29 were prepared at the spot, prior to the rukka being sent to the police station for registration of the FIR and that the FIR was, therefore, admittedly registered after the preparation of these documents. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating FIR No. 77/2021 AISHWARYA Digitally signed by AISHWARYA SHARMA St. Vs. Usha Devi SHARMA Date: 2024.04.23 14:25:02 +0530 9 officer only after a copy of the FIR was brought to the spot by PW2 Ct. Mandeep. Thus, ordinarily, the FIR number and date should not find mention in the seizure memo and Form M29, both of which documents came into existence before registration of the FIR. However, quite surprisingly, perusal of seizure memo and Form M29 reflects the mentioning of the full particulars of the FIR thereupon, which fact has remained unexplained on behalf of the prosecution. No explanation from the prosecution is forthcoming as to how the FIR number surfaced on a document which was prepared prior to the registration of the FIR. This fact casts a fatal doubt upon the case of prosecution.
18. At this stage, reference may be made to the decision of the Hon'ble High Court of Delhi in Lalit v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as follows:
"...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, PW 11/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. 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 Digitally signed by AISHWARYA FIR No. 77/2021 AISHWARYA SHARMA SHARMA Date: 2024.04.23 St. Vs. Usha Devi 14:25:09 +0530 10 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..."
19. The aforesaid ruling of the Hon'ble High Court of Delhi squarely applies to the facts in the present case as well, which leads to only one of the either inference, that is, either the FIR was registered prior to the alleged recovery of the illicit liquor, or that the said documents were prepared later in point of time. In either of the scenarios, a dent is created in the version of the prosecution, the benefit of which must accrue to the accused.
ii). The nonjoining of any independent / public witness.
20. It is evident from the record that no public witness to the recovery of the liquor has been either cited in the list of prosecution witnesses or has been examined by the prosecution. Apparently, PW4 had even asked public persons to join the investigation, however, they refused to join the investigation. Admittedly, no notice was served to such public persons upon their refusal to join investigation in the case. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
"...18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.04.23 FIR No. 77/2021 14:25:18 +0530 St. Vs. Usha Devi 11 been persuaded to join the raiding party to witness the recovery being made from 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 shopkeepers 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 IPC..."
21. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"...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..."
22. 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 as stated by all PWs, 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 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 Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.04.23 FIR No. 77/2021 14:25:28 +0530 St. Vs. Usha Devi 12 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 IO must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an afterthought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful.
23. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or more independent and respectable inhabitants of the locality are required to be made witnesses to such search, and the search is to be made in their presence. Under Section 100(8) Cr.P.C, refusal to be a witness can render such non willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the present case. Therefore, noncompliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity, makes the prosecution version highly doubtful.
24. This Court is conscious of the legal position that nonjoining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the police witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.04.23 14:25:42 +0530 FIR No. 77/2021 St. Vs. Usha Devi 13 would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above, and hereinafter.
iii). Possibility of misuse of seal of the investigating officer
25. As per the prosecution story, after preparing seizure of the case property and the samples of illicit liquor with seal of 'VY', the aforesaid seal was handed over to PW2 Ct. Mandeep. This fact cannot be ignored that Ct. Mandeep was a recovery witness and had apprehended the accused and was subsequently, a part of the investigation in the present case. Thus, the seal was not handed over to any independent witness. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness. Further, no handing over memo is on record to show the genuineness of fact of actual handing over of seal by PW4 HC Vinay Kumar to Ct. Mandeep. Also, there is no taking over memo on record to show as to when the seal was taken back from Ct. Mandeep or if it remained with him forever. In such a factual backdrop, since the seal was given to Ct. Mandeep the seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property.
26. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"....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, Digitally signed by AISHWARYA AISHWARYA FIR No. 77/2021 SHARMA SHARMA Date: 2024.04.23 St. Vs. Usha Devi 14:25:52 +0530 14 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. In the present case, the seal of Investigating OfficerHoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out..."
27. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."
28. It is nowhere the case of the prosecution that the seal after use was handed over to any of the independent witness. In view of discussion made above, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out. Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
iv). Failure to prove the possession of alcohol by accused beyond permissible limits. Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.04.23 14:26:01 +0530 FIR No. 77/2021 St. Vs. Usha Devi 15
29. Perusal of record shows that the Excise Result, Ex. A3 was obtained qua 4 sample bottles (180 ml each) only, whereby the presence of alcohol in the said sample bottle was confirmed. The presence of alcohol in the remaining allegedly recovered liquor bottles has not been thus, proved by the prosecution. Now, since the State has only found 4 bottles (720 ML of liquid), allegedly recovered from the accused, containing alcohol, an offence under section 33 of the Delhi Excise Act, 2009 cannot be said to have been made out as the same falls within the maximum permissible limit specified under Rule 20 of the Delhi Excise Rules, 2010. At this juncture, the ruling of the Hon'ble High Court of Karnataka, in its judgment titled as Nagesh vs The State Of Karnataka, Criminal Revision Petition No.772 /2009, decided on 31 January, 2014, may be adverted to, wherein, while acquitting the accused of a similar offence, following observations were made:
"...It is seen from the mahazar that out of 49,440 Whisky bottles, 15 Whisky bottles of 180 ml. each were sent for Chemical Analysis, and it is opined that there was presence of Ethyl Alcohol in all the bottles that were sent for Chemical Examination, fit for consumption. Thus, the total quantity sent for Chemical Analysis is less than permitted quantity under law. We do not know the contents of the other bottles seized under a Panchanama. There is no evidence to show that all other bottles also contained alcohol. When the quantity found in the bottle sent for Chemical Examination is less than permitted limit and when there is no evidence regarding the contents of all other bottles seized under Panchanama, it cannot be said that the accused was in possession of the illicit liquor without pass or permit more than permitted quantity so as to constitute an offence..."Digitally signed by AISHWARYA
AISHWARYA SHARMA SHARMA Date: 2024.04.23 14:26:09 +0530 FIR No. 77/2021 St. Vs. Usha Devi 16
v). Arrival or departure entries of Police officials
30. In the present case, the prosecution did not even bring on record necessary DD entries to prove the arrival and departure of witnesses to and from the spot of occurrence. It should be noted that if PW1 ASI Mahesh Pratap alongwith HC Mandeep and PW3 Wct. Monika who had apprehended the accused Usha Devi with illegal liquor were on patrolling duty, the prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that they were on patrolling duty by producing DD entry for the same. In the present case, even arrival and departure entry of the investigating officer are also not on record as IO stated that they went on the spot on his private motorcycle.
31. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 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 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.
32. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and Digitally signed by AISHWARYA FIR No. 77/2021 AISHWARYA SHARMA SHARMA Date: 2024.04.23 St. Vs. Usha Devi 14:26:16 +0530 17 departure of the police officials have not been filed or proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held 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 version and attributes oblique motive on the part of the prosecution..."
33. Since in the present case, all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that the possibility of false implication of accused under the provisions of Excise Act cannot be ruled out at the instance of the police. There is no explanation from prosecution regarding the abovenoted serious lacunaes in the investigation conducted by the police which constrains this court to draw an inference qua possibility of planted recovery upon the accused. The inference drawn above further gains strength from the fact that the police did not bother at all to discover the source of illicit liquor or to further enquire about the potential customers of the same.
34. There is no gain saying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond Digitally signed by AISHWARYA AISHWARYA SHARMA FIR No. 77/2021 SHARMA Date: 2024.04.23 14:26:32 +0530 St. Vs. Usha Devi 18 reasonable doubt has not been discharged by the prosecution. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for offence U/S33 of Delhi Excise Act beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal. Accordingly, this Court hereby accords the benefit of doubt to the accused for the offence U/S33 of Delhi Excise Act and holds the accused not guilty of commission of the said offence. Accused Usha Devi is thus, acquitted of the offence U/S33 of Delhi Excise Act.
35. The bail bonds, if any furnished by accused at the time of commencement of trail stands cancelled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands cancelled. Case property if any, shall be disposed off after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2024.04.23
14:26:41 +0530
Announced in the open court on (Aishwarya Sharma)
this day i.e. 23rd April, 2024 MM-01 South West District, Dwarka,
New Delhi
It is certified that this judgment contains 18 pages and each page bears my signatures. Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.04.23 14:26:51 +0530 (Aishwarya Sharma) MM-01 South West District, Dwarka, New Delhi FIR No. 77/2021 St. Vs. Usha Devi