Delhi District Court
State vs . Amit Kumar on 13 July, 2023
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN
MAGISTRATE-08, SOUTH WEST DISTRICT, NEW DELHI
STATE VS. AMIT KUMAR
FIR NO: 264/2018
P. S UTTAM NAGAR
U/s 33 Delhi Excise Act
Crc/9169/2019
JUDGMENT
Sl. No. of the case : 16613/19
Date of its institution : 05.04.2019
Name of the complainant : HC Yardarm, Belt No. 2612/SW,
then posted at PS Uttam Nagar,
New Delhi.
Date of Commission of offence : 28.03.2019
Name of the accused : (i) Amit Kumar,
S/o Sh. Bijender Kumar,
R/o H. No. A-29, Hastsal Vihar,
Uttam Nagar, New Delhi
Offence complained of : 33 Delhi Excise Act
Plea of accused : Not Guilty
Case reserved for orders : 03.07.2023
Final Order : Acquittal
Date of orders : 13.07.2023
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BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. This is the prosecution of the accused namely Amit Kumar upon a charge sheet filed by the police station Uttam Nagar under section 33 Delhi Excise Act.
2. Briefly stated, as per the case of prosecution, in the intervening night of 27.03.2019 and 28.03.2019, Head Constable Yad Ram along with Ct. Joginder were on patrolling duty. At around 3 AM, when they reached near Khera Park, they saw one person who was carrying one plastic bag on his shoulder. They got suspicious about the said person and stopped him. Thereafter, they checked the plastic bag and found 96 quarter bottles of illicit liquor. Information about the recovery was given to the PS Uttam Nagar. After some time, ASI Ram Tek came back at the spot and the accused and case property was handed over to him.
3. After completing the formalities, investigation was carried out by PS Uttam Nagar and a charge sheet was filed against the accused. The charge was framed against the accused u/s 33 Delhi Excise Act, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, prosecution has examined three witnesses.
• HC Yaad Ram examined as PW-1;
• Ct. Jogender examined as PW-2; and Page 2 of 17 • ASI Ram Tek examined as PW-3;
5. PW1 was the complainant, eye-witness and recovery witness of the present case. During his examination-in-chief, he deposed that on 28.03.2019, he was posted at PS Uttam Nagar. In the intervening night of 27.03.2019 and 28.03.2019, he was on patrolling duty along with Ct. Joginder and reached near Khera Park at around 3 AM. When they reached near the said park, they noticed that one person was carrying a plastic bag on his shoulder. They got suspicious and stopped the said person and checked the plastic bag. They found that the said bag was containing 96 quarter bottles of "Impact Grain Whiskey" I.e. illicit liquor. Thereafter, PW1 took one bottle for sample and remaining bottles were sealed with the seal of "YR". Form 29 was also filled.
6. PW1 further stated that he also prepared tehrir Ex. PW1/A and handed over the same to Ct. Joginder who went to the PS for registration of FIR. After getting the FIR registered, Ct. Joginder came back at the spot along with ASI Ramtek. Thereafter, PW1 handed over the case property and accused to ASI Ramtek. Seizure memo of the case property is Ex. PW1/B and Form M-29 is Ex. PW1/C. PW1 correctly identified the accused in the Court. One quarter bottle of Impact Grain Whiskey sealed with the seal of "RKS" was produced before the Court which the PW1 identified as the case property recovered from the possession of the accused in the present case. Remaining case properties were Page 3 of 17 destroyed vide destruction order Ex. PW1/D and photographs of the same prior to the destruction is Ex. P2.
7. PW1 was duly cross-examined by Ld. Counsel for the accused. During his cross-examination, PW1 had sated hat there was no one at the spot at the time of incident and the spot was a park with grass but no trees. He also stated that there were only one or two street lights at the side of the park. He further stated that it was ASI Ramtek who had prepared the documents related to the investigation at the spot. PW1 further stated that although seal was handed to Ct. Jogender in his presence, however, no seal handing over memo was prepared. He also stated that he had prepared the seizure memo at the spot itself. He had denied the suggestions that he had falsely implicated the Court in the present case by falsely implanted the case property on him. He further denied the suggestion that the accused was never found at the spot.
8. PW2 was another eye-witness and recovery witness of the present case. He had also accompanied the complainant PW1 at the time of apprehension of the accused. During his examination-in-chief, he had stated that on 27.03.2018 he was posted at PS Uttam Nagar and was having night duty from 11 PM to 5 AM. He along with PW1 were on patrolling duty in beat no. 2. At about 3 AM, when they reached at Khera Park, they saw one person carrying one plastic bag on his shoulder. They stopped the said person and apprehended him. Witness Page 4 of 17 correctly identified the accused as per the person who was carrying the plastic bag and apprehended by him.
9. PW2 further deposed that when the accused did not give any satisfactory answer regarding the contents of the plastic bag, PW1 opened the bag and found illicit liquor I.e. 96 quarter bottles of Impact whiskey. One bottle was kept as sample and the remaining bottles were kept in the bag. Both sample and the plastic bag were sealed with the seal of YR. PW1 prepared the tehrir and handed over to him for registration of FIR. Thereafter, PW2 went to the PS and got the FIR registered. After the registration of FIR, PW2 came back at the spot and handed over the copy of same and original tehrir to PW1. ASI Ramtek had also reached at the spot. Thereafter, PW1 left the spot and ASI Ramtek prepared the site plan Ex. PW2/A. Accused was arrested vide arrest memo Ex. PW2/B.
10. PW2 was duly cross-examined by Ld. Counsel for the accused. During his cross-examination, he had stated that the spot was surrounded by park from one side and residential area on the other side. There was no one present at the spot at the time of incident. He further stated that he did not meet ASI Ramtek at the PS and he did not know as to how ASI Ramtek had reached at the spot. He further stated that the seal was affixed on the case property in his presence. He also stated that it was ASI Ramtek who had prepared the documents related to the Page 5 of 17 investigation at the spot. He further admitted that no seal handing memo was prepared. He had denied the suggestions that he had falsely implicated the Court in the present case by falsely implanted the case property on him. He further denied the suggestion that the accused was never found at the spot.
11. PW3 was the IO of the present case. During his examination-in-chief, he had stated that on 28.03.2018, he was present at the PS. On that day, PW2 reached at the PS for registration of the FIR. The present case was marked to him for investigation after the registration of FIR. Thereafter, he along with PW2 reached at the spot where they met PW1 and the accused. PW1 handed over the custody of accused and case property to him. Thereafter, PW3 prepared the site plan Ex. PW2/ A. During the investigation, he had seized the case property vide seizure memo Ex. PW1/B and also arrested the accused vide arrest memo Ex. PW2/C. He also conducted personal search of the accused and recorded his disclosure statement. Thereafter, he along with the other police officials and the accused reached at the PS and he deposited the case property in malkhana. He had correctly identified the accused and case property in the Court.
12. PW3 was duly cross-examined by Ld. Counsel for the accused. During his cross-examination, he had deposed that he was not the eye-witness so the recovery of the case property from the possession of the Page 6 of 17 accused. He also stated that the present case was marked to him at 5:30 AM. PW3 further stated that he along with the police staffs and the accused reached at the PS at around 7:15 AM. He also admitted that some public persons were also present at the spot, however, he did not record the statement of any public persons as they had refused to join the investigation and left the spot without giving their addresses. He had denied the suggestions that accused was falsely implicated in the present case and the case property was falsely implanted on him. He also denied the suggestions that he never visited the spot and prepared all the documents by sitting at the PS. .
13. Accused admitted the genuineness of copy of FIR No. 264/2018 as Ex. X-1 and excise control laboratory report dated 24.07.2018 Ex. A-1, u/s 294 of the Criminal Procedure Code, 1973 (herein after referred as Cr.P.C).
14. Statement of the accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances were put to her which he denied and pleaded his false implication and also false plantation of the case properties. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
15. I have heard the Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony Page 7 of 17 of all the witnesses were not impeached by the accused. Per contra, Ld. Counsel for the accused submitted that no public witnesses were examined in the present case regarding recovery of illicit liquor from the possession of the accused. He further submitted that the accused has been falsely implicated in the present case and the case properties have also been planted against the accused. It was further argued that there were material contradictions in the testimonies of PW1, PW2 and PW3 which would make them unreliable.
16. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
17. Although, sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the accused 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. Relevant extract of the said provision is reproduced below:
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"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) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence."
18. But this presumption is rebuttable and accused can rebut the same by either referring to the prosecution's evidence or by adducing defence evidence. Also, it should be noted that 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 pre-requisite 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.
19. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised Page 9 of 17 against the accused in the present case. Hence, he deserves to be acquitted.
Non-examination of independent public witnesses
20. During the final arguments, Ld. Counsel for the accused submitted that the prosecution did not examine even a single public witness to prove the recovery of illicit liquor from the possession. Both the recovery witnesses were police officials.
21. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC 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.
22. From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
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23. In the instant case, it should be noted that there are contradictions in the testimonies of PW1, PW2 and PW3 over the presence of public witnesses at the spot which is a park and residential area. As per PW1 and PW2, no public persons were present at the spot at the time when the accused was apprehended. However, as per the testimony of PW3, public persons were present at the spot when he reached there, however, they all refused to join the investigation without giving their names and addresses.
24. It is pertinent to note here that the PW3 had reached at the spot at around 6 AM. The spot is surrounded by park and residential area. It is quite natural that many public persons would have been present in the park for morning walks, jogging etc. Hence, it could not be said that no public persons were present at the spot till the time the accused and police officials remained there.
25. Although PW3 have asserted that he implored some of the public witnesses to join the investigation but they refused to participate in the investigation. This explanation tendered by the PW3 does not seem to be tenable as neither the details of those public persons have been brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the Page 11 of 17 investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them.
26. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"It is repeatedly laid down by this Court that 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have 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."
27. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even Page 12 of 17 make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their e vid e n ce , d o e s n ot i n a n y wa y affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
28. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any Page 13 of 17 of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -as in the present case -that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
29. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
30. As discussed in the preceding paragraphs of this judgment, IO did not even make any endeavor to join the public witnesses. The police officials are themselves not sure about the presence of public persons at the spot.
31. Further, the prosecution did not even bring on record necessary DD entries to prove arrival and departure of the PW3 from the police station. 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;
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"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 departure of the police officials have not been 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. In the instant case, the prosecution has indeed filed on record the relevant departure entries of PW1 and PW2, however, necessary departure entry of IO PW3 were not filed on record. Similarly, the arrival entries of the police officials along with the accused and case properties in the PS were not filed by the prosecution. No explanation on this regard could be provided by the prosecution.
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34. Since 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 chances of false implication of accused cannot be ruled out at the instance of the police officials.
Possibility of misuse of seal of the investigating of cer
35. As per the testimonies of PW1 & PW2, the sample of liquor and case property were sealed by the PW1 with the seal of "YR" and after use the seal was handed over to Ct. Jogender who subsequently deposited the same in malkhana. Interestingly, the case property was produced in the Court during the trial with the seal of "RKS". No explanation could be provided by the prosecution witnesses over the production of case property with a different seal. No seal handing over memo was brought no record by the prosecution.
36. Also, it is interesting to note that sample and case property in the present case was seized by the complainant PW1 himself and also sealed by PW1 himself with his own seal. The seizure memo Ex. PW1/ B is prepared by the complainant and not by the IO PW3. Interestingly, PW3 in his testimony had stated that he had seized the case property vide seizure memo Ex. PW1/B. Perusal of the seizure memo would show that the same was prepared by the complainant PW1. This would further weaken the case of the prosecution.
Loopholes in the case of prosecution
37. Further, PW2 in his cross-examination had stated that he did not meet ASI Ramtek at the PS when he went for the registration of FIR. He also stated that he did not know as to how ASI Ramtek reached at the spot. It would mean that after the registration of FIR, PW2 did not come back at the spot along with ASI Ramtek. However, as per the testimonies of PW1 and PW3, PW3 ASI Ramtek had reached at the spot along with Page 16 of 17 fi PW2. This is clear contradiction in the testimony of PWs which would weaken the case of prosecution.
38. Also, as discussed in the preceding part of this judgement, the complainant after apprehending the accused had himself seized the case property and sample with his own seal. It is very difficult to fathom that the complainant who was on patrolling duty was carrying his seal with him at that time. Also, the case property and the sample should have been seized and sealed by the IO and not by the complainant. Complainant of a criminal case must not become the IO of the same case.
39. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution's case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. As such the accused deserves acquittal in the present case.
40. Therefore, in view of the above discussions and findings, the accused Amit Kumar is acquitted for the offence u/s 33 Delhi Excise Act.
Announced in the open court. (ANIMESH KUMAR)
MM-08, South West
New Delhi/13.07.2023
on 13.07.2023
It is certified that this judgment contains 17
pages and each page bears my signatures.
(ANIMESH KUMAR)
MM-08, South West
New Delhi/13.07.2023
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