Delhi District Court
State vs . Hari @ Tunda on 6 December, 2022
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SOUTH EAST):SAKET
COURTS:NEW DELHI
Presided by : Ms. SONAM SINGH-I
State Vs. Hari @ Tunda
FIR No. 463/2020
Police Station: Badarpur
Under Section: 33 Delhi Excise Act.
Date of institution : 18.10.2021
Date of reserving : 25.11.2022
Date of pronouncement : 06.12.2022
JUDGMENT
a) The Serial number of : 7468/2021
the case
b) Date of commission of : 05.10.2020
offence
c) Name of the : Ct. Praveen Kumar
complainant
d) Name, parentage and : Hari @ Tunda, S/o Lt. Sh.
address of the accused Rambharose, R/o H. No. A-
16, Bilaspur Camp,
Molarband Village, Badarpur,
New Delhi
e) Offence complained of : Section 33 Delhi Excise Act
f) Plea of the accused : Accused pleaded not guilty
g) Final order : Accused stand acquitted of the
offence punishable under Section
33 Delhi Excise Act
h) Date of final order : 06.12.2022
State vs. Hari @ Tunda
FIR No. 463/2020, P.S. Badarpur page 1 of 12
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE:
1. Vide this judgment, the accused Hari @ Tunda stands acquitted of the offence punishable under Section 33 Delhi Excise Act in this case for the reasons mentioned below :
CASE OF THE PROSECUTION
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') is that on 05.10.2020, at about 09:15 PM, at H. No. A-16, Bilaspur Camp, Molarband Village, Badarpur, New Delhi within the jurisdiction of Police Station Badarpur, accused Hari @ Tunda, (hereinafter, referred to as accused) was found in possession of one plastic katta containing 50 quarter bottles of "Charlie Santara Orange Masaledar Desi Sharab, 180 ml each (for sale in Haryana only)" in violation of Rule 20 of Delhi Excise Rules 2010, and thereby accused has committed an offence punishable U/s 33 Delhi Excise Act.
3. The investigation was done by the IO/HC (ASI) Dharmender Singh who filed the police report under Section 173 of the Cr.P.C. in respect of the offence punishable under Section 33 Delhi Excise.
State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 2 of 12 COURT PROCEEDINGS
4. The learned predecessor of this court took cognizance upon the said police report on 18.10.2021 and on 11.05.2022, the accused was supplied with the copies of police report and documents.
CHARGE
5. Vide order dated 11.05.2022, the charge against the accused for the offence punishable under Section 33 Delhi Excise Act was framed, to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
6. Thereafter, the matter was listed for prosecution evidence.
(i) Prosecution Witnesses:
7. In order to prove and substantiate its case, the prosecution in all has examined 3 witnesses, namely:
Designation and Name Role in the present case Sr. No. of the Witness
1. PW1 Ct. Neetu Kumar Police official
2. PW2 Ct. Praveen Kumar Complainant/recovery witness
3. PW3 ASI Dharmender Investigating Officer Singh State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 3 of 12 Documents on record:
8. The prosecution witnesses relied on the following documents:
Sr. No. Exhibits/Marks Nature of documents
1. Ex.PW2/A Seizure Memo of the illicit liquor
2. Ex.PW2/B Statement of Ct. Praveen Kumar
3. Ex.PW2/C Site Plan
4. Ex.PW2/D Interrogation Report
5. Ex.PW3/A Rukka
6. Ex.PW3/B Form M29
7. Ex.P-1 Case property ADMISSION AND DENIAL OF DOCUMENTS
9. The examination of accused was conducted U/s. 294 CrPC wherein, he admitted the genuineness of following documents:-
Sr. No. Exhibits/Marks Nature of documents
1. Ex.A-1 Copy of FIR.
9. Ex.A-2 Chemical examiner report
10. Ex.A-3 DD Entry No. 4A
11. Ex.A-4 Certificate U/s 65 B IEA
12. Ex.A-5 DD Entry No. 13A
13. Ex.A-6 Copy of RC
14. Ex.A-7 Entry of MHC(M)
10. Thereafter, prosecution evidence was closed vide order dated 25.11.2022. The court will discuss the testimonies of the said witnesses later i.e., at the time of appreciation of evidence.
State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 4 of 12 THE STATEMENT OF THE ACCUSED PERSON UNDER S/ECTION 313 Cr.PC. / DEFENCE OF THE ACCUSED PERSON
11. The accused in his statement under Section 313 Cr.P.C, recorded on 25.11.2022 denied the entire evidence put to her. He stated that he is innocent and has been falsely implicated in the present case. He stated that he did not wish to lead DE.
FINAL ARGUMENTS
12. The Court heard the final arguments on 25.11.2022.
ANALYSIS AND FINDINGS
13. I have heard the submissions of Ld. APP for the State as well as that of Ld. counsel for the accused. The court has also diligently gone through the charge-sheet, documents and the entire material on record.
14. In short, the case of the prosecution is that on 05.10.2020 at about 09.15 PM at H.No. A-16, Bilas Pur Camp, Molarband Village, Badar Pur, Delhi, within jurisdiction of PS Badar Pur, the accused Hari @ Tunda, was found in possession of a plastic katta which was found containing total 50 quarter bottles of "Charlie Santra Orange Masaledar Desi Sharab, 180 ml each (for sale in Haryana only)". In order to prove the charge against the accused, the prosecution was required to prove beyond reasonable doubt that there was recovery of illicit liquor from the State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 5 of 12 possession of the accused.
NON-JOINDER OF PUBLIC WITNESSES:
15. In the present case, there is no independent public witness to corroborate the alleged recovery of the illicit liquor from the possession of the accused Hari @ Tunda. Ct. Praveen Kumar (PW2) who is the complainant and also recovery witness deposed that on 05.10.2020, he alongwith Ct. Vijender were on patrolling duty. He deposed that during patrolling, at about 09.15 PM when they reached near H.No. A-16, Bilaspur Camp, Molarband Village, Badar Pur, on suspicion they apprehended one person who was having a plastic katta in his possession. He deposed that on checking the said katta, they found illicit liquor which were plastic quarter bottles labelled with "Charlie Santara Orange Masaledar Desi Sharab for Sale in Haryana Only". He deposed that intimation was given at PS, from where IO HC Dharmender came to the spot and they both handed over the accused and case property to the IO. During his cross examination, PW2 Ct. Parveen Kumar deposed that they requested 4-5 public persons/residents of the locality to join the investigation, however, none of them agreed. He further admitted that IO did not note down their names and addresses.
16. PW3 ASI Dharmender Singh is the IO of this case who deposed in his cross examination that "We requested 4-5 public persons /residents of the locality to join the investigation, however, none agreed." Further, in his cross-examination, IO/ PW3 ASI Dharmender Singh admitted that he did not serve State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 6 of 12 notice U/s. 160 CrPC upon them nor he noted down their names and addresses. The IO/ASI Dharmender Singh could have served the public witnesses with a notice in writing to join the police proceedings, but it seems that the IO did not make sincere efforts in this regard. Further, the PW 3 IO/ASI Dharmender Singh could have noted down the names and addresses of such public persons who were asked to join the investigation or taken any action against them.
17. The recovery of prohibited articles, arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the case of the prosecution. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion. Hence, in the absence of any joinder of any independent witness in the investigation, false implication of the accused by the local police in the present case cannot be ruled out.
18. The aforesaid observation of the Court is fortified by following observations by the Hon'ble apex court in the case of Hem Raj v. State of Haryana AIR 2005 SC 2110, it has been observed that:
"8. 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 State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 7 of 12 independent witnesses(Kapur) one who was very much in the know of things from the beginning was not examined by the prosecution.
9. 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."
19. The aforesaid depositions of PW2 Ct. Parveen Kumar and PW3 IO ASI Dharmender Singh, show that they have failed to give any plausible explanation for non-joining of the public witnesses in the investigation despite their availability. This casts a serious doubt about the veracity of the entire prosecution case of the accused being in possession of the illicit liquor.
20. This Court is, however, conscious that the case of the prosecution cannot be thrown out merely on the sole ground of non-joining of public witnesses. The reason is that public witnesses generally avoid court related proceedings unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat AIR 1988 SC 696. 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 as well, as described below, which raise suspicion over the prosecution version.
DUTY RECORD/ DEPARTURE ENTRY OF RECOVERY WITNESS NOT PROVED
21. The present case rests entirely on the alleged recovery of State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 8 of 12 alleged illicit liquor from the possession of the accused at the relevant time by police officials, the complainant, namely Ct. Parveen Kumar and Ct. Vijender. As public persons were not joined in the investigation, it becomes important for the prosecution to show the presence of police officials in the concerned area at the relevant time. Thus, in this regard, the duty record and departure entry of the said recovery witness assume significant importance.
22. As per, Chapter 22 Rule 49 of Punjab Police Rules, 1934, the police officials are under a mandate to make entries as regards the hour of whenever they arrive or leave the police station for their duty. The said rule is reproduced below:
"22.49 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 personality by signature or seal. Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
23. Further, in the judgment in a case titled as Rattan Lal versus State 1987 (2) Crimes 29, the Hon'ble Delhi High Court held that in case the investigating agency is violative of a law provision, then the court should view the matter with suspicion. The relevant paragraph of the said judgment is reproduced below:
State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 9 of 12 "If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. 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 entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
24. In view of the aforesaid legal provision and judgment, it is seen that the record of DD entries of the complainant/recovery witness/PW1 Constable Parveen and Ct. Vijender are not placed on record. However, the prosecution did not file any documentary evidence to substantiate the fact that the two constables who apprehended the accused were on patrolling duty. Proof of the said record is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police officials. In view of the fact that no DD entry has even been placed on record to show the presence of recovery witnesses/ police officials at the spot at the relevant time, creates a reasonable doubt in the prosecution version. Both PW 2 Ct. Praveen Kumar and PW 3 ASI Dharmender Singh in their cross- examination admitted that no entries of duty roster as well as Rojnamcha showing the nature of duty, place and duty hours of recovery witnesses were not on judicial record.
EFFORTS REGARDING SOURCE OF ILLICIT LIQUOR
25. There is no iota of evidence regarding the efforts made by State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 10 of 12 the police officials to find out about the source from where illicit liquor was arranged for by the accused.
OMISSION TO PREPARE HANDING OVER MEMO OF THE SEAL
26. The PW3 IO/ASI Dharmender Singh in his cross examination deposed that he had not prepared the handing over and returning memo of seal used to seal the case property. In these circumstances, the possibility of tampering with case property cannot be ruled out. Even otherwise, the failure to prepare any such document for this purpose also leads to a missing link in the entire series of investigation raising doubt over the manner of investigation conducted.
CONTRADICTIONS IN THE TESTIMONY OF PROSECUTION WITNESSES
27. There are serious contradictions in the testimony of prosecution witnesses on various aspects. PW 2 Ct. Praveen Kumar in his examination in chief deposed that he was not aware if IO prepared handing over memo and returning memo of seal whereas, PW3 IO/ASI Dharmender Singh deposed in his cross examination that he had not prepared handing over memo and returning memo of seal, which creates doubt on the investigation being conducted on the spot. Hence, there are material contradiction between the versions of the said prosecution witnesses and hence, the prosecution's version regarding recovery of the illicit liquor from the possession of accused has State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 11 of 12 not been proved.
CONCLUSION
28. The burden of proof on the prosecution is to prove the case by leading convincing evidence to prove the guilt of accused beyond reasonable doubt. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof. Every benefit of doubt goes in favour of accused.
29. In view of the above discussion, since the prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts, the accused Hari@Tunda stands acquitted for the offence under Section 33 of Delhi Excise Act.
30. Case property be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
31. File be consigned to records after due compliance.
Dictated and announced in the open Court on 06.12.2022 (SONAM SINGH-I) ACMM (SOUTH EAST):
SAKET COURTS :NEW DELHI State vs. Hari @ Tunda FIR No. 463/2020, P.S. Badarpur page 12 of 12