Delhi District Court
State vs Saria@Baby on 1 May, 2024
IN THE COURT OF MS. DIVYA ARORA
METROPOLITAN MAGISTRATE - 04: NORTH WEST
DISTRICT, ROHINI COURTS: NEW DELHI
FIR No. 75/2019
PS Budh Vihar
State Vs. Sarla @ Baby
Date of Institution: 26.09.2019
Date of Judgment: 01.05.2024
JUDGMENT
(a) Serial Number of the case : 5786/2019
(b) Date of commission of offence : 18.03.2019
(c) Name of the complainant : Ct. Samay Singh
(d) Name of Accused, his : Sarla @ Baby
parentage & residence W/o Sh. Mohan Lal,
R/o: A-112,
Mange Ram Park,
Budh Vihar, Delhi.
(e) Offence complained of : u/s 33 Delhi Excise Act
(f) Plea of Accused : Pleaded not guilty
(g) Final order : Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE
DECISION
1) The accused Sarla @ Baby W/o Sh. Mohan Lal has been sent to face trial for the offence under Section 33 of the Delhi Excise Act, 2009 upon the allegations that on 18.03.2019 at about 10.15 am, in front of House No. A- 114, Mange Ram Park, Delhi within the jurisdiction of PS Budh Vihar, accused was found in possession 04 cartons containing 50 quarter bottles of illicit liquor of brand "Asli FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.1/16 Santra Masaledar Desi Sharab for sale in Haryana only' as per seizure memo Mark X without any permit or valid licence and in contravention of Notification issued by Delhi Administration.
2) After completion of investigation, chargesheet was filed in the Court, cognizance of the offence was taken and accused was summoned. After he entered appearance, copy of the chargesheet alongwith the documents was supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure.
3) After consideration of arguments on charge, charge was framed vide order dated 25.01.2020 against the accused Sarla @ Baby for commission of offence under Section 33 Delhi Excise Act to which she pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined 08 witnesses.
5) PW-1 HC Samay Singh deposed that on 18.03.2019, he was posted at PS Budh Vihar as Constable and on that day, he was on beat patrolling duty alongwith W/SI Bimlesh, W/Ct. Preeti Rani, W/Ct. Rekha, W/Ct. Rambhateri and HC Masum and all of them were on patrolling duty at around 10.00 am, they were at Mange Ram Park, where they saw that one lady was sitting on Charpaai in the Gali of A-Block, Mange Ram Park. They saw that 04 Gatta petties were kept in the Charpaai and after seeing them, the FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.2/16 accused covered the said gatta Petties from her Shawl. They checked the said gatta petties and same were found containing 50 quarter bottles of illicit liquor in each gatta petti. Ct. Samay Singh informed the PS regarding the recovery of illicit liquor. IO HC Sunil reached at the spot and Ct. Samay narrated the said incident to the IO and handed over the custody of the accused and recovered illicit liquor alnogwith one metal box (galla) to the IO. After that, IO counted the recovered quarter bottles of illicit liquor from all four Gatta Petties each gatta petti was containing 50 quarter bottles of "Asli Santra Masaledar Desi Sharab" for sale in Haryana only 180 ml". He further deposed that IO took out one quarter bottle as sample from each gatta petti and kept them in a white cloth and mouth tied and sealed with the seal of SR. M-29 Form was also filled by IO. After that IO seized the recovered illicit liquor vide seizure memo Ex.PW1/A. IO handed over the seal to Ct. Samay Singh. IO prepared the tehrir on his statement which is Ex.PW1/B, and handed over the same to HC Samay Singh for registration of FIR. Ct. Samay Singh left the spot and went to PS Budh Vihar and returned back to the spot alongwith the copy of the FIR and original tehrir. The copy of the FIR and original tehrir were handed over to the IO HC Sunil. IO recorded the disclosure statement of the accused Sarla @ Baby which is Ex.PW1/C. IO prepared the site plan which is Ex.PW1/D. (identity of the accused is not disputed by the Ld. counsel for the accused). Ct Samay Singh identified the case property i.e. one quarter bottles of "Asli Santra Masaledar FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.3/16 Desi Sharab, for sale in Haryana only". Case property is Ex.P-1. Destruction order of the case property is Mark-A. He also identified the photograph showing one plastic katta on which the particulars of the present case is visible which is Ex.P-2.
6) PW-2 W/SI Bimlesh deposed that on 18.03.2019, she was posted at PS Budh Vihar as SI and on that day, she was on beat patrolling duty alongwith Ct. Samay, W/Ct. Preeti Rani, W/Ct. Rekha, W/ct. Rambhateri and HC Masum and during patrolling duty at around 10.00 am, they were at Mange Ram Park, where they saw that one lady was sitting on Charpaai in the Gali of A-Block, Mange Ram Park and 04 Gatta petties were kept in the Charpaai, and after seeing police officials, accused covered the said gatta Petties from her Shawl. After removing the shawl they saw 04 gatta petties containing illicit liquor and one metal box (Galla). Ct. Samay informed the PS regarding the recovery of illicit liquor. After some time, IO HC Sunil reached at the spot and they narrated the said incident to the IO. The custody of the accused and recovered illicit liquor alongwith one metal box (galla) was handed over to the IO. IO prepared the tehrir on the statement of Ct. Samay which which is Ex.PW1/B, and handed over the same to Ct. Samay for registration of FIR. After 40-45 minutes, Ct. Samay returned at the spot alongwith the copy of the FIR and original tehrir and handed over the same to the IO HC Sunil. (identity of the accused as well as case property are not disputed by the Ld. counsel for the accused).
FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.4/16
7) PW-3 W/Ct. Rekha deposed that on 18.03.2019, she was posted at PS Budh Vihar as W/Constable and on that day, she was on beat patrolling duty alongwith W/SI Bimlesh, W/Ct. Preeti Rani, Ct. Samay Singh, W/Ct. Rambhateri and HC Masum and all of them were on patrolling duty, and during patrolling duty at around 10.15 am they were at Mange Ram Park, where they saw that one lady was sitting on Charpaai in the Gali of A-Block, Mange Ram Park alongwith 04 Gatta petties and one steel box which were kept in the Charpaai. After seeing them, accused covered the said gatta Petties from her Shawl. After that, SI Bimlesh and Ct. Preeti checked the said gatta petties and same were found containing 50 quarter bottles of illicit liquor in each gatta petti. Thereafter, she informed the PS regarding the recovery of illicit liquor. After some time, IO HC Sunil reached at the spot she narrated the said incident to the IO, and handed over the custody of the accused alongwith recovered illicit liquor and one metal box (galla) to the IO. IO counted the recovered quarter bottles of illicit liquor from all four Gatta Petties and each gatta petti was containing 50 quarter bottles of "Asli Santra Masaledar Desi Sharab" for sale in Haryana only 180 ml". IO took out one quarter bottle as sample from each gatta petti and kept them in a white cloth and sealed the same with the seal of SR. Samples were given serial no. 1A, 1B, 1C and 1D. Plastic katta was given serial no. 1. IO sent Ct. Samay to PS for registration of FIR. After 40-45 minutes, Ct. Samay came back at the spot alongwith copy FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.5/16 of FIR and original rukka and handed over the same to the IO. IO arrested the accused Sarla @ Baby vide arrest memo Ex.PW3/A, and also conducted the personal search of the accused vide memo Ex.PW3/B. IO recorded my statement. (identity of the accused is not disputed by the Ld. counsel for the accused). She identified the case property i.e. one quarter bottles of "Asli Santra Masaledar Desi Sharab, for sale in Haryana only" in the Court. Case property is Ex.P-1. Destruction order of the case property is Mark-A. She also identified the photograph showing one plastic katta on which the particulars of the present case which is Ex.P-2.
8) PW-4 HC Masum deposed that on 18.03.2019, he was posted at PS Budh Vihar as Head Constable and on that day, he was on beat patrolling duty alongwith W/SI Bimlesh, W/Ct. Preeti Rani, W/Ct. Rekha, W/Ct. Rambhateri and Ct. Samay and during patrolling duty at around 10.15 am, they were at Mange Ram Park, where they saw that one lady was sitting on Charpaai with 04 Gatta petties and one steel box which were kept in the Charpaai, and after seeing police officials, she covered the said gatta Petties from her Shawl. They checked the said four gatta petties and same were found containing 50 quarter bottles of illicit liquor in each gatta petti. Thereafter, Ct. Samay informed the PS regarding the recovery of illicit liquor. After some time, IO HC Sunil reached at the spot and Ct. Samay narrated the said incident to the IO and he handed over the custody of the FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.6/16 accused and recovered illicit liquor alnogwith one metal box (galla) to the IO. After that, IO counted the recovered quarter bottles of illicit liquor from all four Gatta Petties, each gatta petti was containing illicit liquor of "Asli Santra Masaledar Desi Sharab" for sale in Haryana only 180 ml". After that IO took out one quarter bottle as sample from each gatta petti and kept them in a white cloth and sealed the same with the seal of SR. M-29 Form was also filled by IO. IO seized the recovered illicit liquor vide seizure memo Ex.PW1/A. IO handed over the seal to Ct. Samay. IO prepared the tehrir Ex.PW1/B, and handed over the same to Ct. Samay for registration of FIR. After that Ct. Samay left the spot and went to PS Budh Vihar and returned back to the spot alongwith the copy of the FIR and original tehrir. Copy of the FIR and original tehrir were handed over to the IO HC Sunil. IO recorded the disclosure statement of the accused Sarla @ Baby. IO arrested the accused Sarla @ Baby and conducted her personal search. Thereafter, they all alongwith the accused and recovered illicit liquor came at the PS. IO deposited the case property in malkhana. (identity of the accused is not disputed by the Ld. counsel for the accused). He identified the case property i.e. one quarter bottles of "Asli Santra Masaledar Desi Sharab, for sale in Haryana only" in unsealed condition which was taken as a sample at the time of destruction of the case property. Case property is Ex.P-1. Destruction order of the case property is Mark-A. He also identified the photograph showing one plastic FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.7/16 katta on which the particulars of the present case which is Ex.P-2.
9) PW-5 ASI Dinkar deposed that on 18.03.2019, he was posted at PS Budh Vihar as Malkhana Muhrar and on that day, HC Sunil Rathi deposited the case property in Malkhana in sealed condition with samples. On 11.04.2019, Ct. Naveen vide RC No. 41/21/19 had gone to the Excise Department and deposited the said samples and receiving was handed over by Ct. Naveen to ASI Dinkar.
10) PW-6 HC Naveen Kumar deposed that on 11.04.2019, he was posted at PS Budh Vihar as Constable and on that day, vide RC No. 41/21/19, he had gone to the excise department under the supervision of HC Dinkar, and deposited the said sample in Excise Department and after deposition of sample, he handed over the receiving to HC Dinkar.
11) PW-7 W/Ct. Preeti Rani deposed that on 18.03.2019, she was posted at PS Budh Vihar as W/Constable and on that day, she was on beat patrolling duty alongwith W/SI Bimlesh, W/Ct. Rekha, Ct. Samay Singh, W/Ct. Rambhateri and HC Masum and all of them were on patrolling duty, and during patrolling duty at around 10.15 am they were at Mange Ram Park, where they saw that one lady was sitting on Charpaai in the Gali of A-Block, Mange Ram Park alongwith 04 Gatta petties and one steel box which were kept in the Charpaai. After seeing them, FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.8/16 accused covered the said gatta Petties from her Shawl. After that, SI Bimlesh and Ct. Preeti checked the said gatta petties and same were found containing 50 quarter bottles of illicit liquor in each gatta petti. Thereafter, Ct. Rekha informed the PS regarding the recovery of illicit liquor. After some time, IO HC Sunil reached at the spot she narrated the said incident to the IO, and handed over the custody of the accused alongwith recovered illicit liquor and one metal box (galla) to the IO and on counting, total 50 quarter bottles in each gatta petti was recovered of lable "Asli Santra Masaledar Desi Sharab" for sale in Haryana only 180 ml". IO took out one quarter bottle as sample from each gatta petti and kept them in a white cloth and sealed the same with the seal of SR. Samples were given serial no. 1A, 1B, 1C and 1D. Plastic katta was given serial no. 1. IO sent Ct. Samay to PS for registration of FIR. After 40-45 minutes, Ct. Samay came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. IO arrested the accused Sarla @ Baby vide arrest memo Ex.PW3/A, and also conducted the personal search of the accused vide memo Ex.PW3/B. (identity of the accused as well as case property was not disputed by the Ld. counsel for the accused). Case property is already Ex.P-1 and Ex.P-2, and copy of Destruction Order is Mark-A.
12) PW-8 ASI Sunil Kumar / IO deposed that on 18.03.2019, he was posted at PS Budh Vihar as Head Constable and on that day, vide DD no. 22-B Ex.PW8/A, he went to the spot FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.9/16 i.e. A-14, Mange Ram Park where he met Ct. Samay, W/SI Bimlesh, W/Ct. Preeti Rani, W/Ct. Rekha, W/Ct. Rambhateri (Home Guard), and HC Masum. Ct. Samay handed over the custody of accused as well as recovered illicit liquor alnogwith one metal box (galla) to him. After that, IO checked four Gatta petties and found containing 50 quarter bottles of "Asli Santra Masaledar Desi Sharab"
for sale in Haryana only 180 ml". IO requested 4-5 public persons to join the investigation but none of them agreed and left the spot without disclosing there whereabouts. No notice was served upon the persons who refused to join the investigation due to paucity of time. Thereafter, IO took out one quarter bottle as sample from each gatta petti and kept them in a white cloth and sealed with the seal of SR. M-29 Form was also filled by the IO. IO seized the recovered illicit liquor alongwith one metal box (Galla) containing Rs. 360/- vide seizure memo Ex.PW1/A. Samples were given serial no. 1A, 1B, and 2A and 2B, Katta was given serial no. 1. He further deposed that he recorded the statement of Ct. Samay and prepared the tehrir Ex.PW1/B and made endorsement on the said rukka. Endorsement is Ex.PW8/B, and tehrir was handed over to Ct. Samay for registration of FIR. After registration of FIR, Ct. Samay returned back to the spot alongwith the copy of the FIR and original tehrir and handed over the same to IO. IO prepared site plan at the instance of Ct. Preeti and Ct. Samay which is Ex.PW1/D. IO arrested accused Sarla @ Baby vide arrest memo Ex.PW3/A. Personal search of accused was conducted by W/Ct. Preeti FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.10/16 Rani which is Ex.PW3/B. IO also recorded disclosure statement of accused which is Ex.PW1/C. Thereafter, IO alongwith other police officials, accused and recovered case property went to PS, where case property was deposited in malkhana. Accused was sent to BSA Hospital for her medical examination alongwith Ct. Samay and W/Ct. Preeti Rani. After medical examination, accused was produced before the concerned Court and from there, she was sent to JC. IO filled Form M-29 which is Ex.PW8/C. During investigation, samples were deposited in Excise Department and the result of the same was collected from concerned MHC(M). (identity of the accused as well as case property was not disputed by the Ld. counsel for the accused). Case property is already Ex.P-1 and Ex.P-2, and copy of Destruction Order is Mark-A.
13) During the course of trial, the accused, in his statement under Section 294 Cr.P.C., admitted the FIR No. 75/19 Ex.Y-1, Certificate u/s 65-B of Evidence Act Ex. Y-2 and Excise result Ex. Y-3. Hence the relevant witnesses i.e. Duty Officer namely Surender Pal Singh and Sh. Bijender, Chemical examiner and MHC(M) PS Budh Vihar were dropped from the list of prosecution witnesses.
14) The statement of accused was then recorded under Section 281 read with Section 313 of the Code of Criminal Procedure wherein the entire incriminating evidence was put to the accused who maintained her innocence stating FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.11/16 that "I have been falsely implicated in the present case.
Nothing has been recovered from my possession as recovery has been planted upon me by the police officials. I was lifted by the police officials from my house ."
15) During the course of final arguments, it has been argued by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are complete and in view of the presumption under Section 52 of the Delhi Excise Act the accused be convicted. On the other hand, Ld Counsel for the accused has argued that the accused has been falsely implicated in the present case, that there is no public witness of the incident and prosecution miserably failed to prove its case against the accused beyond reasonable doubts.
16) Final arguments as advanced by the Ld APP for the State and by Ld. counsel for the accused have been carefully considered along with the evidence on record.
17) It is a settled proposition of law that in a criminal trial, it is for the prosecution to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused, if any. Accused is FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.12/16 entitled to the benefit of every reasonable doubt in the prosecution version.
18) The prosecution has relied heavily upon the presumption under Section 52 of the Delhi Excise Act, 2009 to contend that in the present case, the burden was upon the accused to prove that she had not committed the offence under Section 33 of the Act and since the accused had failed to discharge the onus cast upon her, the accused should be found guilty in the presence case. However, perusal of the Section 52 of the Delhi Excise Act reveals that the presumption under the Section can be raised only after the prosecution has discharged its initial onus as to the accused having been found in possession of illicit liquor.
19) For the sake of convenience, Section 52 of the Act is reproduced hereinunder:
"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. (emphasis supplied)".
20) Hence, to avail the benefit of the presumption, it was still for the prosecution to prove that the illicit liquor was in fact recovered from the possession of the accused and it was also for the prosecution to prove that the case property FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.13/16 produced in the Court was the same as was recovered from the possession of the accused and that the same was not tampered during the interim period.
21) No public person has joined investigation either at the time of the recovery or at the time of the seizure of the case property. No explanation has been furnished by the PW-1 HC Samay Singh, PW-2 W/SI Bimlesh, PW-3 W/Ct. Rekha, PW-4 HC Masum, PW-5 ASI Dinkar, PW-7 W/Ct. Preeti Rani and PW-8 ASI Sunil Kumar as to why the public persons were not joined in the investigation by them at the time of recovery. PW-8 has stated that no notice was served upon public persons who refused to join the investigation. PW-8 has deposed that he requested 4-5 passersby to join the investigation but none of them agreed and left the spot without disclosing their whereabouts. However, there is no further evidence on record as to whether any further action was taken against such persons for not joining the investigation. There is also no evidence on record as to why the persons of the locality were not joined in the investigation since they would have been present in the residential area at the alleged time of recovery. Further, no CCTV footage of the spot of incident or any other electronic evidence is on record.
22) This omission to join the neighbors in investigation is significant as it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer investigating a crime is entitled to ask FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.14/16 anybody to join the investigation and he is also fully empowered to initiate action against public persons refusing under the law. The failure on the part of the investigating officer to initiate any such action against any public person is suggestive of the fact that the explanation for non-joining the witnesses from the public is merely after thought and is not worthy of credence. (Ref: Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, decided by Hon'ble High Court of Punjab & Haryana).
23) It is also duly noted here that while not in every case the testimony of police officials are to be looked upon with suspicion and treated as unworthy of reliance, but the failure of the investigating agency to join witnesses from the public especially when they are available or their presence can reasonably be secured with minimum efforts casts a doubt as to the authenticity of the version being put forth by the investigating agency. (Ref: Nanak Chand v The State of Delhi, 1991 JCC 1 decided by the Hon'ble Delhi High Court).
24) Hence, in these circumstances, as the investigating officer failed to join any independent public persons as witness to the proceedings of the present matter, warrants an adverse inference to be drawn under Section 114 (g) of the Evidence Act that the evidence if produced would have been unfavourable to the case of the investigating agency and the prosecution has thus failed to prove the recovery of the liquor from the accused beyond reasonable doubt.
FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.15/16 Decision
25) In view of the above discussion, the prosecution case cannot be said to be free from reasonable doubt and the accused is entitled to be given the benefit of the doubt. Accordingly, the accused Sarla @ Baby W/o Sh. Mohan Lal is acquitted of the offence under Section 33 Delhi Excise Act, 2009 in FIR No. 75/2019 PS Budh Vihar.
26) Case property be confiscated to the State and disposed off as per law if not already done.
27) File be consigned to the Record Room after necessary compliance.
Announced in the Open Court on 01.05.2024.
(DIVYA ARORA) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 16 pages and each page bears my signature.
(DIVYA ARORA) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 75/2019 (PS Budh Vihar) State Vs. Sarla @ Baby Page No.16/16