Delhi District Court
State vs Sunny on 6 May, 2023
IN THE COURT OF MS. DEEKSHA SETHI, MM-03, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-016586-2021 ID. No. : 3985/2021 FIR No. : 669/2018 U/s : 33 Delhi Excise Act P.S. : Bindapur State v/s Sunny a) Name & address of the : Ct. Ram Avtar Complainant No. 2473/DW, PIS no. 28102514, PS Bindapur, Dwarka District, New Delhi. c) Name & address of : Sunny accused S/o Sh. Shashi Kapoor R/o Hno. A-46, Vishu Vihar, Uttam Nagar, New Delhi. d) Date of Commission of : 04.08.2018 offence e) Offence complained of : 33 Delhi Excise Act f) Plea of the accused : Pleaded not guilty. g) Ld. APP for the State : Sh. Manish Kaushik h) Final Order : Acquitted. i) Date of Institution : 23.03.2021 j) Judgment Pronounced on : 06.05.2023 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 04.08.2018, Ct. Ram Avtar (hereinafter referred to as the 'complainant') State v/s Sunny Page 1 of 14 Cr. Case No. 3985/2021 was on patrolling duty at beat no. 4 of the police station and while patrolling when he reached B Block, DDA Flats Bindapur, he saw that one person namely Sunny s/o Sh. Shashi Kapoor was carrying a heavy plastic katta on his head and on seeing him, the accused turned back. On being suspicious, Ct. Ram Avtar apprehended the accused and checked the plastic katta which was found to be containing illicit liquor. He informed about the said incident in the police station and an FIR bearing no. 669/2018 u/s 33 Delhi Excise Act was registered at PS Bindapur. Investigation of the case was conducted by HC Kailash Prasad.
Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Sunny. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against him, to which he had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined the following witnesses:
State v/s Sunny Page 2 of 14 Cr. Case No. 3985/2021(i) PW-1 ASI Arvind has deposed that on 05.08.2018, he was posted at PS Bindapur as MHCM(CP) and on the directions of IO HC Kailash, he had collected the case property as well as samples, both sealed with the seal of 'KP'. They were deposited in the malkhana of police station by him vide mud no.
2409/2018 and the relevant record was exhibited as ExP-1 (OSR). On 04.10.2018, he had handed over the sealed exhibits vide RC no. 269/21/18 to Ct. Sonpal for the purpose of depositing the same at Excise office, ITO for result analysis. Receipt of the same was handed over to him and was exhibited as ExPW2 (OSR). The witness stated that the exhibits were not tampered with during the time they were in his possession. The said witness was not cross examined by Ld. Defence counsel despite having been given an opportunity to do so.
(ii) PW-2 Head Constable Sonpal has deposed that on 04.10.2018, he was posted at PS Bindapur as a Constable and on the directions of HC Kailash, he had taken the exhibits which were sealed with the seal of 'KP' from MHCM CP vide RC no. 269/21/18 and deposited the same for result analysis at Excise Office, Vikas Bhawan, Delhi. He had handed over a copy of the receipt to MHCM CP on the same day. The witness stated that the exhibits were not tampered with during the time they were in his possession. the said witness was not cross examined State v/s Sunny Page 3 of 14 Cr. Case No. 3985/2021 by Ld. Defenc counsel despite having been given an opportunity to do so.
(iii) PW-3 Head Constable Ram Avtar has deposed that on 04.08.2018, he was posted at PS Bindapur as a Constable and while he was on patrolling duty and present in the area of beat no.4, PS Bindapur, when he reached Vishu Vihar, Uttam Nagar he saw that one person was carrying a heavy plastic katta on his head and he was coming from the side of B Block, DDA Flats, Bindapur. Upon seeing him, that person turned back and started to walk away. He (PW3) already knew the said person and his name was Sunny s/o Sh. Shashi Kapoor R/o A-46, Vishu Vihar, Uttam Nagar. He checked the plastic katta and found it to be containing quarter bottles of illicit liquor. He shared the said information with the duty officer, PS Bindapur via telephone. HC Kailash reached at the spot and he handed over the custody of alleged person Sunny as well as the illicit liquor to him. IO had asked four-five public persons to join the investigation, but none of them agreed and left the spot after citing their personal reasons and without disclosing their name and addresses. Upon checking the plastic katta, the IO found it to be containing 30 quarter bottles of NU Blue mood for sale in Arunachal Pradesh only. IO had taken one quarter bottle as a sample and had put back the remaining quarter bottles in the plastic katta. He tied State v/s Sunny Page 4 of 14 Cr. Case No. 3985/2021 the opening of plastic katta as well as sample with a white cloth and sealed it with the seal of 'KP'. IO handed over the seal after use to him and filled Form M-29 at the spot. IO seized the samples as well as the remaining case property vide seizure memo Ex. PW3/A. IO recorded his statement and prepared the tehrir. He handed over tehrir to him to get and FIR registered. He (PW-3) came back at the spot after getting the FIR registered and handed over a computerised copy of FIR and original tehrir to IO HC Kailash. IO prepared site plan of place of incident at his instance. After interrogation, IO recorded interrogation statement of accused Sunny, arrested him and conducted his personal search vide memos ExPW3/C and ExPW3/D respectively. The case property was deposited at the malkhana of the police station alongwith samples, Form M-29 and other relevant documents. He had taken the accused to DDU hospital for his medical examination. The witness identified the accused in court. The MHC(M) produced destruction order of the case property bearing no. F.Conf./2019/ 815-16 dt. 26.04.2019 issued by AC(Excise). The same was exhibited as ExP-1 (OSR) . MHC(M) also produced sample of case property i.e., one quarter bottle (180 ml) of NU Blue mood for sale in Arunachal Pradesh only. The witness identified the same and it was State v/s Sunny Page 5 of 14 Cr. Case No. 3985/2021 exhibited as ExP-2. This witness was thoroughly cross-examined by Ld. Defence counsel.
(iv) PW-4 ASI Kailash has deposed that he was posted at PS Bindapur as a Head Constable. On 04.08.2018, on receipt of DD no. 74 B regarding recovery of illicit liquor, he reached at the spot i.e., Vishu Vihar and met Ct. Ram Avtar, who handed over the custody of the apprehended person as well as the recovered illicit liquor in the plastic katta to him. He came to know the name and address of apprehended person as Sunny s/o Sh. Shashi Kapoor r/o A-46, Vishu Vihar, Uttam Nagar. He had asked three-four public persons to join the investigation but none of agreed and left the spot after citing their personal reasons and without disclosing their name and addresses. He checked the plastic katta and found it to be containing 30 quarter bottles (180 ml) eachof NU Blue Mood for sale in Arunachal Pradesh only. He had taken one quarter bottle as a sample and had put back remaining quarter bottles in the same plastic katta. He tied the opening of plastic katta as well as the samples with a white cloth and sealed it with the seal of 'KP'. He handed over the seal after use to Ct. Ram Avtar. He seized the sample as well as remaining illicit liquor vide seizure memo Ex. PW3/A. He filled Form M-29 at the spot and prepared the tehrir (ExPW4/A). He got the FIR registered through Ct. Ram Avtar, who came back at State v/s Sunny Page 6 of 14 Cr. Case No. 3985/2021 the spot and handed over a computerised copy of FIR and original tehrir to him. He prepared the site plan of the incident (Ex. PW4/B) at the instance of the complainant. After interrogation, he recorded the disclosure statement of accused. He arrested the accused and conducted personal search vide memos Ex.PW3/C and Ex.PW3/D respectively. The case property was deposited at the malkhana of the police station alongwith copy of seizure memo and Form M-29. He had sent the samples for result analysis to Excise Office, through Ct. Sonpal vide Rc no. 269/21/18 (ExP-2). He recorded the statement of witnesses u/s 161 CrPC. The witness identified the accused in court. The MHC(M) produced destruction order of the case property (Ex.P1) (OSR). MHC(M) also produced sample of case property i.e., one quarter bottle (180 ml) of NU Blue mood for sale in Arunachal Pradesh only. The witness identified the same and it was exhibited as ExP-2. This witness was thoroughly cross-examined by Ld. Defence counsel.
5. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR no. 669/2018, DD No. 66B and 74B both dated 04.08.2018 and Excise Control Laboratory Result. The above-said documents were exhibited as Ex. A-1, Ex. A-2, Ex. A-3 and Ex.A-4 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.
State v/s Sunny Page 7 of 14 Cr. Case No. 3985/20216. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC read with section 281 CrPC was recorded wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was innocent and falsely implicated. The accused chose not to lead any evidence in his defence.
7. It is argued by Sh. Manish Kaushik, Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of illicit liquor, i.e., 30 quarter bottles (180 ml each) of NU Blue Mood for sale in Arunachal Pradesh only. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
State v/s Sunny Page 8 of 14 Cr. Case No. 3985/2021Findings of the Court
10.It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11. The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12.This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the examination of PW-3 HC Ram Avtar (the complainant) and PW-4 ASI Kailash (the IO) reveals that the IO had asked four-five public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case. In a case titled as Nanak Chand State v/s Sunny Page 9 of 14 Cr. Case No. 3985/2021 Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.'' (Emphasis supplied)
13. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they 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 version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
14.Perusal of the record further reveals that there is a delay of approximately sixty days in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples State v/s Sunny Page 10 of 14 Cr. Case No. 3985/2021 are sent to the CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
15.In the instant case, alleged recovery was made on 04.08.2018 yet the samples were sent to the Excise Control Laboratory for examination on 04.10.2018, i.e., after approximately sixty days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
16. Perusal of the cross examination of PW-4 ASI Kailash (the IO) reveals that he had first prepared the seizure memo Ex. PW-3/A of the case property as well as Form M-29 and after that rukka was prepared and sent to the police station for registration of FIR and thereafter, present FIR was registered. It is, therefore, clear that the seizure memo of the illicit liquor as well as Form M-29 were prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, registered after the preparation of the seizure memo Ex. PW-3/A of the State v/s Sunny Page 11 of 14 Cr. Case No. 3985/2021 illicit liquor as well as Form M-29, however, surprisingly, seizure memo Ex. PW-3/A bears the FIR number and it is thus, amazing since the number of the FIR could have come to his knowledge (PW-4) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by ASI Kailash on seizure memo, which came into existence before registration of the FIR. However, as discussed above, the seizure memo Ex. PW-3/A of the illicit liquor bears the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"... 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, PW11/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. 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."State v/s Sunny Page 12 of 14 Cr. Case No. 3985/2021
(Emphasis supplied)
17.In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender 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 State v. Om Prakash 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."
(Emphasis supplied)
18.In the present case also, it remains unexplained as to how the FIR No. and its details figure on the top of the document, i.e., seizure memo Ex. PW-3/A. This creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion State v/s Sunny Page 13 of 14 Cr. Case No. 3985/2021 that either the said document was prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.
19. Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a katta which contained illicit liquor was recovered from the possession of the accused. The accused Sunny is, therefore, acquitted of the offence u/s 33 Delhi Excise Act.
20. This judgment contains 14 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
21. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
Digitally
ANNOUNCED IN THE OPEN COURT signed by
Deeksha Deeksha Sethi
TODAY i.e. ON 06.05.2023 Sethi
Date:
2023.05.06
17:02:32
+0530
Deeksha Sethi
Metropolitan Magistrate-03
South-West District/New Delhi
06.05.2023
State v/s Sunny Page 14 of 14
Cr. Case No. 3985/2021