Delhi District Court
Cr. Case/294999/2016 on 29 March, 2022
1/16
IN THE COURT OF ANURAG THAKUR
MM-02: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
FIR No. 02/11
PS Timarpur
U/s 33 of The Delhi Excise Act, 2009
State v. Krishna
Date of Institution of case: 02.04.2011
Date of Judgment reserved: 14.03.2022
Date on which Judgment pronounced: 29.03.2022
JUDGMENT
Unique ID no. of the case : 294999/16
Date of commission of offence : 04.01.2011
Name of complainant : SI Devendra Parnava,
PIS No. 16080419
Name and address of accused : Krishna w/o Late Arun
R/o. H.No. 1845, Sanjay
Basti Jhuggi, Timarpur,
Delhi.
Offence complained of : U/s 33 Delhi Excise Act
Plea of accused : Not guilty
Date of order : 29.03.2022
Final order : Acquitted
BRIEF REASONS FOR DECISION
1. Accused Krishna had been sent to face trial u/s 33 of The Delhi Excise Act, 2009 (hereinafter referred to as 'the Act') on the allegations that on 04.01.2011 at about 05:00 p.m at Tikona Park, Timarpur, Delhi, within the jurisdiction of PS Timarpur, she was found in possession of one plastic sack containing two cardboard cartons (each carton containing 12 bottles of country made liquor and on each bottle the words 'Halchal Masaledar Desi Sharab' was written) total equivalent to 24 bottles of 750 ml capacity without any licence or permit to possess the same.
State v. Krishna FIR No.02/2011 PS Timarpur 2/16
2. After completion of investigation, final report was filed against the accused.
Copy of charge sheet was supplied to her in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Notice u/s 33 of the Act was served upon the accused on 22.05.2012 to which she pleaded not guilty and claimed trial.
3. The prosecution was given opportunity to prove the accusation against the accused. The prosecution examined six witnesses in support of its case:-
PW-1 SI Devendra Pranava had deposed that on 04.01.2011 he was posted at PS Timarpur as SI and on that day he was present at PS Timarpur and he got secret information regarding consumption and sale of liquor. He prepared raiding party comprising Ct. Kapil and W/Ct. Mamta Sharma and departed for Tikona Park, Timarpur, Delhi. On reaching there he looked for some public witness for joining the raid but none agreed. After sometime, HC Rajnath Pandey met him at the spot and he also shared the same information with him. At about 6 p.m a lady came from side of Mall road towards Tikona Park. She was stopped and checked formally. She had a plastic katta on her shoulder. The plastic katta was checked and it contained two cartons of illicit liquor. The two cartons were also checked and were found to contain 24 bottles of illicit quarter (12 bottles in each katta of 'Halchal Masaledar Desi Sharab'). All the liquor bottles were opened and liquor was emptied into a separate jar. Out of the said Jar one bottle was separated as sample. The Jar, the sample and the empty bottles were put into plastic katta and were separately sealed with the seal of DP. Form M-29 was filled up at the spot. The case property was taken into police possession vide memo Ex. PW1/A bearing his signature at point A. The seal after use was handed over to W/Ct. Mamta Sharma. Thereafter, he prepared the rukka Ex. PW1/B bearing his signature at point A and handed State v. Krishna FIR No.02/2011 PS Timarpur 3/16 over the same to Ct. Kapil for registration of FIR. Thereafter, he went to PS for getting the case registered and after registration of FIR, 2 nd IO SI Vikram came at the spot and he handed over the accused, recovered case property, seizure memo and Form M-29 to him. Handing over memo was Ex. PW1/C bearing his signature at point A. The 2nd IO prepared the site plan at his instance which was Ex. PW1/D bearing his signature at point A. 2 nd IO recorded his statement and he was correctly identified by PW-1. The witness correctly identified the case property produced by MHC(M).The plastic can which was Ex. P-1 and the plastic katta and 23 empty bottles were collectively Ex. P-2.
During cross-examination by ld. Counsel for the accused, he deposed that the secret information was received by him at about 04.30 pm. He admitted that the Tikona Park was situated at the main road and the area was surrounded by flats. He also admitted that Tikona Park was surrounded by the market and at the time of incident lady constable was present at the spot. The personal search of the accused was conducted by W/Ct. Mamata Sharma. No offer of search was given by Ct. Mamata Sharma before effecting casual search. He remained at the spot for period of about one and half hour after the recovery. At the time of recovery no public witness joined them despite effects made to join them. They requested 4/5 passerby. None of the nearby resident were asked to join the proceedings. He admitted that all the bottles were of different shapes. He voluntarily stated that they were of same company. He did not give any information regarding arrest of the accused. He voluntarily submitted that he had not arrested the accused and she was arrested by the 2 nd IO. He did not remember by whom the jar was brought. No other instrument of measuring was used except the bottles itself. He handed over the seal after use to W/Ct. Mamata Sharma. She returned back the seal to him on 11 th of January 2011. The katta was already there in his IO kit. He admitted that the plastic bag was easily available in the market. He did not know what was written on the plastic State v. Krishna FIR No.02/2011 PS Timarpur 4/16 bag except his seal and particular of the case. He handed over the case property to the 2nd IO and after that he did not know when 2nd IO had sent the case property. He denied the suggestion that the accused was falsely implicated in the present case or that the case property was planted upon the accused or that he was deposing falsely at the instance of 2nd IO.
4. PW-2 HC Bedi Ram had testified that on 04.01.2011 he was posted as MHC(M) at PS Timarpur and on that day, SI Vikram deposited the case property in Malkhana with regard to FIR no. 02/11 vide entry no.2977. He made the entry in his handwriting. The copy of relevant entry was Ex. PW2/A (OSR), bearing his signature at point A. On 11.01.2011, sample bottle was sent to the Excise office through Ct. Vijay Kumar vide RC No. 6/21/11. The copy of RC was exhibited as Ex. PW2/B (OSR), bearing his signature at point A. Case property remained untampered during the period it remained at Malkhana.
During cross-examination by ld. counsel for the accused, he deposed that the seal was of DP. He did not record the time of making the aforesaid entry as there was no column for the same. He denied the suggestion that case property was tampered with during the period it remained in his possession. He denied the suggestion that he was deposing falsely.
5. PW-3 ASI Rajnath Pandey had deposed that on 04.01.2011 he was posted on deputation at Excise Department, Vikas Bhawan, New Delhi and on that day, he received information regarding sale of illicit liquor at Tikona Park, Timarpur. He reached the spot at around 4:45 p.m. After some time, SI Devender alongwith W/Ct. Mamta and Ct. Kapil also reached at the spot. He shared the secret information with SI Devender and at about 5 p.m, a lady was coming from the Mall Road side toward Tikona Park, she was stopped by SI Devendra and other staff. The said lady was carrying plastic bag (katta). The State v. Krishna FIR No.02/2011 PS Timarpur 5/16 said plastic bag was checked by SI and two cardboard cartons containing illicit liquor were found. Each carton contained 12 bottles and in total 24 bottles of 'Halchal Masaledar Desi Sharab' were recovered. After that, SI Devender opened all liquor bottles and all liquor was put into a plastic jar and remaining empty plastic bottles were put into plastic bag (katta). SI Devender took one bottle as a sample from the said plastic jar. SI Devender sealed the plastic jar and the liquor sample and the 24 empty plastic bottles were separately sealed with the seal of 'DP'. After that SI Devender seized the said liquor and prepared seizure memo which was already Ex. PW1/A bearing his signature at point B. SI Vikram also prepared site plan in his presence. After that SI Devender prepared a tehrir and handed over to Ct. Kapil for registration of FIR. After some time, Ct. Kapil alongwith SI Vikram returned back at the spot after registration of the FIR. SI Vikram recorded his statement. He could identify the accused if shown to him. At that stage, ld. defence counsel submitted that he does not dispute the identity of the accused.
During cross-examination by ld. counsel for the accused, he deposed that he reached the spot at about 4:45 p.m. and remained there for about two and a half hours. About 7-8 documents were prepared in his presence. He signed only one of those documents. No public person was present at the spot. The neighbourhood where the spot was located was thickly populated area. The IO had not made any inquiry from any public person in his presence. The IO had not asked any public person to join the investigation. The site plan did not bear his signature. Four police personnel including him were present at the time of recovery of illicit liquor. He could name the other three police personnel viz. SI Devender, Ct. Kapil and W/Ct. Mamta. Seal after use was handed over to W/Ct. Mamta. He did not know whether W/Ct. Mamta returned the seal to anyone or not. He had not counted the bottles and the same were counted by SI Devender. He saw SI Devender counting the bottles. The plastic bag was white State v. Krishna FIR No.02/2011 PS Timarpur 6/16 in colour but he did not then remember whether the same was plain or whether the same had any mark or design on it. Near the spot, there was a police post and the IO conducted all the proceedings while sitting on the bench in the police post. Site plan Ex. PW1/D was shown to the witness. The police post was mentioned in the site plan at point 'X'. The site was adjacent to the police post and he remained there for two and a half hours. The distance between the spot and police post was two-four yards. There was still some daylight when the entire proceedings were conducted and street lights were working. He denied the suggestion that he was not present at the site at the date and time deposed by him in his examination in chief. He also denied the suggestion that he was deposing falsely at the instance of the IO.
6. PW-4 Ct. Kapil had testified that on 04.01.2011 he was posted at PS Timarpur.
At about 4:30 p.m, SI Devender shared with him secret information about a lady who dealt in illicit liquor. After that SI Devender alongwith W/Ct. Mamta and he, reached at Tikona Park, Timarpur, where they met HC Rajnath. SI Devender shared secret information with HC Rajnath and HC Rajnath also shared the said secret information with SI Devender and other police officials. After sometime at about 5 p.m, a lady came from side of Mall road towards Tikona Park who was carrying a plastic bag (katta) on her shoulder. She was stopped by SI Devender and checked formally. The plastic bag was checked and found to contain two cartons of illicit liquor, each carton having 12 bottles of 'Halchal Masaledar Desi Sharab'. After that Ct. Mamta interrogated the said lady who disclosed her name as 'Krishna' He further deposed that he could identify the accused if shown to him. At that stage, ld. defence counsel submitted that he did not dispute the identity of the accused. All the liquor bottles were opened and the liquor was poured into the platic jar/can. After that out of the said jar one bottle was separated as a sample for sample purpose State v. Krishna FIR No.02/2011 PS Timarpur 7/16 and the said empty bottles were put into plastic bag (katta) and the said jar and the plastic katta which contained empty bottles and the samples were separately sealed with the seal of 'DP'. After that SI Devender seized the case property and prepared seizure memo which was already Ex. PW1/A bearing his signature at point C. SI Devender prepared a tehrir and handed over to him for registration of FIR. He reached PS Timarpur and handed over the said tehrir to DO who registered the FIR and after that, he alongwith SI Vikram reached at the spot and he handed over the said FIR to SI Devender. SI Devender shared investigation with SI Vikram. SI Devender handed over accused and case property to SI Vikram. SI Devender also recorded his statement. Then SI Vikram prepared site plan at the instance of SI Devender which was already exhibited as Ex. PW1/D. SI Vikram arrested the accused and prepared arrest memo Ex. PW4/A bearing his signature at point A. Thereafter personal search of accused was conducted by SI Vikram and also personal search memo was prepared which was exhibited as Ex. PW4/B bearing his signature at point A. SI Vikram prepared seizure memo of all seized articles which was already Ex. PW1/C bearing his signature at point B. SI Devender also filled form M-29 in his presence.
During cross-examination by ld. counsel for the accused he deposed that he reached at the spot at about 4:45 p.m. He did not know whether SI Devender made any departure entry at PS or not. The distance between the spot and the police station was about 1km. He did not remember how they reached at the spot. He remained at the spot for about four hours. He did not remember how many documents were prepared by the IO in his presence. He signed 4-5 documents on that day. He signed personal search memo, arrest memo and seizure memos. He had signed one or two more documents but their nature he did not remember on that day. The site plan was not prepared in his presence. He reached at the police station at around 6 p.m with tehrir by taking a lift on a State v. Krishna FIR No.02/2011 PS Timarpur 8/16 motorbike. He reached at police station in about five to ten minutes. He went to the spot with SI Vikram on his bike. The personal search of accused was conducted by W/Ct. Mamta in his presence. There was no public person at that time. SI Devender asked four to five persons to join the investigation but none of them joined the investigation. He did not know the name of those public persons. He admitted that the illicit bottles were not counted by him but they were counted in his presence. There were two cardboard cartons containing the illicit liquor bottles. He did not remember the colour of plastic bag (katta). He again deposed that the plastic bag was of white colour. He did not remember whether the plastic katta was plain or printed. The seal on the seized case property was of SI Devender and after use it was handed over to W/Ct Mamta. He admitted that the place of the incident was thickly populated area. After returning from PS, the proceedings were conducted till 8:30 to 9 p.m. All the proceedings were done at the spot in the illumination of street light. All the proceedings were conducted by sitting on iron bench which was kept near the spot. The iron bench was already available at the spot and he did not know anything about the ownership of that bench. The street light might have been at a distance of 30-40 meters from the place where the proceedings were conducted. He denied the suggestion that he was not present at the spot on the date and time deposed by him or that he was deposing falsely at the instance of the IO and nothing was recovered from the accused on that day. He further denied the suggestion that accused had been falsely implicated in the matter.
7. PW-5 W/Ct. Mamta Sharma had testified that on 04.01.2011 she was posted as constable at PS Timar Pur. Her duty hours were from 9.00 a.m. to 5.00 p.m. and she was on reserve duty. SI Devender asked roster officer (Chhittha Munshi) to provide him a lady constable. So, she was deputed with SI Devender who informed her that he had secret information that one lady State v. Krishna FIR No.02/2011 PS Timarpur 9/16 carrying illicit liquor will come from Tikona Park towards Sanjay Basti. If they made a raid, they could arrest her. Thereafter, she, secret informer, Ct. Kapil alongwith SI Devender reached at Tikona Park, Sanjay Basti from the PS. SI Devender requested passersby to join the raiding party but none of them agreed to be part of raiding team. Thereafter, they met HC Rajnath who was already there and had the same information. Thereafter, they waited at the spot. At around 5.00 p.m., a lady came who was carrying a katta (plastic bag) on her shoulder. They stopped her and checked the katta and SI Devender found two cardboard boxes in the katta and in those boxes there were bottles of illicit liquor. Each box contained 12 bottles of illicit liquor. SI Devender called for a can from Ct. Kapil and all the 24 bottles were emptied into that can. One sample bottle was filled from that can and on that bottle "Halchal Masaledar Desi Sharaab" and something else in English was also written but she did not remember that writing on that day. The bottle was of 750 ml. Thereafter, the bottle was sealed by tying the same with a cloth and the seal of 'DP' was affixed on the bottle. Form 29 was filled by SI Devender. Thereafter, a noting was written by SI Devender and the same was sent through Ct. Kapil to PS for registration of FIR. After some time, Ct. Kapil came at the spot with the copy of FIR, original rukka and SI Vikram Dahiya also came alongwith Ct. Kapil. Thereafter, they all went to PS and thereafter the accused was arrested at the PS in her presence, the arrest memo was already exhibited as Ex. PW4/A bearing her signature at point B. On the directions of SI Devender, she personally searched the accused and the corresponding personal search memo already exhibited as Ex. PW4/B bearing her signature at point B was prepared. Thereafter, she took the accused to AAA Hospital for her medical and after getting her medical examination conducted, they came back to the PS. Thereafter, she handed over the custody of the accused to other W/Ct. and she was relieved from the investigation. Her statement was recorded by SI Vikram State v. Krishna FIR No.02/2011 PS Timarpur 10/16 Dahiya. The empty bottles were all kept in the katta and the mouth of the katta was tied with a cloth and the same was sealed with the seal of DP. The katta was seized and the corresponding seizure memo was already Ex. PW1/A bearing her signature at point D. At that stage, the witness was asked to look around the court and tell whether the lady apprehended by them on that day was present in court or not. After looking around the court, the witness pointed towards the accused as the same lady who was apprehended by them on that day.
During cross-examination by ld. counsel for the accused, she had deposed that they reached at the spot at 4.30 p.m. and they waited there for about half an hour. At that time, she was accompanied by SI Devender, Ct. Kapil, secret informer and HC Raj Nath. She could not tell the direction from which the accused was coming but she was coming from Mall Road side and going towards Tikona Park, Timar Pur. She did not remember on which shoulder she was carrying the katta. Tikona Park area was populated and there was traffic on the road. Efforts were made to join public persons in the raiding party but no one agreed to the request of SI Devender. SI Devender had asked 3-4 persons to be part of raiding party. More than one hour was spent in conducting the proceedings at the spot. The writing work was done while sitting at the Bus Stop of Tikona Park under the shelter where seats were installed for the passengers to wait. It was about 7.30 p.m. when the writing work was being done. The writing work was done by using the mobile torch. She did not remember the colour of the katta. She and SI Devender both counted the bottles. No public person had signed on the papers prepared at the spot. Ct. Kapil took the tehrir to the PS on motorcycle. He came back to the spot after half an hour after recording of FIR and he came back on the same motorcycle. SI Vikram Dahiya was riding pillion on the motorcycle of Ct. Kapil. She did not remember the number of that motorcycle. She did not remember whether State v. Krishna FIR No.02/2011 PS Timarpur 11/16 the bottles were made of plastic or glass. She did not know whether the kind of bottles seized by them were commonly available in that area. She denied the suggestion that she did not visit the spot of incident and she was deposing falsely at the instance of the IO only to implicate the accused or that she did not conduct personal search of the accused.
8. PW-6 Inspector Vikram had testified that on 04.01.2011 he was posted as Sub-
Inspector at PS Timarpur and on that day he was present in PS and at around 6:10 p.m Duty Officer marked DD No. 29A to him for the further investigation. After receiving the same, he reached at Tikona Park, Timarpur, where he met SI Devender, W/Ct. Mamta, HC Rajnath Pandey and accused. Thereafter, SI Devender handed over the accused, recovered case property, seizure memo and form no. 29. He prepared seizure memo of the same which was already exhibited as Ex. PW1/C bearing his signature at point C. Thereafter, he prepared site plan at the instance of SI Devender which was already exhibited as Ex. PW1/D bearing his signature at point A. After that he recorded the statements of HC Rajnath Pandey and SI Devender at the spot. He arrested the accused and prepared corresponding memo which was already exhibited as Ex. PW1/A bearing his signature at point C. Ct. Mamta conducted the personal search of the accused and he prepared the personal search memo which was already exhibited as Ex. PW4/B bearing his signature at point C. Thereafter, he deposited the case property at the malkhana of PS Timarpur. He alongwith W/Ct. Mamta took the accused for medical examination at AAA Hospital. Thereafter, they came back at the PS and he recorded the statement of the remaining witnesses. He locked-up the accused in the PS. On the next day, he produced the accused at Tis Hazari Court for sending her to the JC. On 11.01.2011 through Ct. Vijay he sent the sample of illicit liquor to the Excise Deptt., ITO. On 11.01.2011 W/Ct. Mamta handed over the seal which was used State v. Krishna FIR No.02/2011 PS Timarpur 12/16 to seal the illicit liquor to SI Devender. He prepared handing over memo for the same which was exhibited as Ex. PW6/A bearing his signature at point A. Thereafter, he recorded the statement of remaining witnesses u/s 161 Cr.P.C. On 08.02.2011 he received the result regarding the illicit liquor from Excise Deptt. Thereafter, he prepared challan and submitted the same before the Hon'ble Court. He could identify the case property if shown to him.
During cross-examination by ld. counsel for the accused, he deposed that he reached at the spot at around 6:20 p.m. He went to the spot on his private vehicle. He did not remember the registration number of the private vehicle. He did not remember whether he made any departure entry at the time of leaving the PS or not. He remained at the spot for about two or two and a half hours. He prepared seizure memo, site plan, arrest memo, personal search memo and recorded statement u/s 161 Cr.P.C of two witnesses i.e. SI Devender and HC Rajnath Pandey. He did not record any statement of any public person who were present at the spot. The 161 Cr.P.C statements of SI Devender and HC Rajnath Pandey were in his handwriting. He admitted that the spot was thickly populated area. He prepared all the documents while standing at the spot (patri of the road). He recorded the statements at around 6:30 to 7 p.m under street light. He did not remember whether He depicted any street light pole in site plan. No public person had signed any document prepared at the spot by him. The illicit liquor bottles were not counted before him. The recovery was also not effected before him. When the recovered property was handed over to him then it was already kept in one white plastic sack and one separate sample bottle was handed over. One can was also handed over containing liquor. The case property had already been sealed with the seal of 'DP' prior to handing over the same to him. The property was not sealed before him. He denied the suggestion that illicit liquor was planted upon the accused or that the accused had been falsely implicated in the case or that all witnesses State v. Krishna FIR No.02/2011 PS Timarpur 13/16 are tutored and they have deposed falsely at his instance. He further denied the suggestion that he prepared all the documents while sitting at the PS.
9. Vide a statement recorded on 04.03.2020 accused had voluntarily admitted the factum of RC No. 6/21/11 dated 11.01.2011 regarding depositing of sample, FIR, DD No. 29A dated 04.01.2011, Chemcial examinaer report in terms of section 294 Cr.P.C. She further stated that she would not dispute the genuineness of aforesaid documents during the trial. The documents were exhibited as Ex. A.1 to Ex. A.4. The prosecution evidence was closed on 10.03.2022. Statement of accused u/s 313 Cr.P.C read with section 281 Cr.P.C was recorded on 14.03.2022. Accused elected not to lead defence evidence. Final arguments were concluded on 14.03.2022.
10. As per the report of the chemical examiner, the sample sent to Excise Control Laboratory was of country liquor. An individual in territory of Delhi may legally possess country liquor up to 3 litres without having any licence for the same but the purported recovery in the present case is 18 litres and same is punishable u/s 33 of the Act which carries a maximum punishment of three years imprisonment. However as per section 69 of the Act the case is to be tried as summary trial. Furthermore, section 52(1) of the Act makes it incumbent upon the court to presume that accused committed the offence unless proved otherwise. In this backdrop, upon scrutiny of the evidence tendered at trial, my observations are delineated hereinafter.
11. Firstly, PW-1 SI Devendra, PW-3 ASI Rajnath Pandey, PW-4 Ct. Kapil and PW-5 W/Ct. Mamta Sharma all in their testimonies categorically stated that public persons were present at the spot when accused Krishna was allegedly apprehended with illicit liquor. They stated that the IO requested the public State v. Krishna FIR No.02/2011 PS Timarpur 14/16 persons to join raiding party but no one agreed and left without disclosing their names and addresses. Why no notice was given by the IO to such public persons and passers-by who refused to join the investigation is beyond the comprehension of this court. PW-3 ASI Rajnath clearly stated that the spot of incident was a thickly populated area, still no efforts were made by the IO to join public persons in the investigation of the case. The testimony of official witnesses doesn't find any corroboration from any independent source. In the opinion of this court, non-joining of independent/public witness is fatal to the prosecution case and create serious doubts regarding the genuineness of investigation conducted at the spot. In Roop Chand v. State of Haryana 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are untenable. Further, in Passi @ Prakash v. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of the offence is made, public persons must be made witnesses. Also, in Pawan Kumar v. Delhi Administration 1989 Cri.L.J. 127, it was observed that in case of failure to join independent witness benefit of doubt must be given to the accused.
12. Secondly, perusal of rukka shows that the seizure memo of illicit liquor and Form M-29 were prepared prior to making of rukka. When these documents were prepared till then FIR was not lodged. How seizure memo of case property mentions FIR No. 2/11 is beyond comprehension of this court. The FIR number has also been mentioned in Form M-29 which should not have been the case. Either Form M-29 and seizure memo of case property have been tampered with or original seizure memo and Form M-29 have been withheld from this court. Here, it is relevant to refer to case law reported as Mohd. Hashim v. State 1999(6) A.D. (Delhi) 569, wherein it was observed that when documents are prepared before the registration of FIR and it contains the FIR State v. Krishna FIR No.02/2011 PS Timarpur 15/16 number, then inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases benefit of the doubt is to be given to the accused.
13.Thirdly, PW-1 SI Devendra deposed that seal after use was handed over to W/Ct. Mamta Sharma who returned the same to him on 11.01.2011. However, in her testimony W/Ct Mamta Sharma did not say anything about receipt of seal by her from the sub-inspector or later on returning the same. No memo was prepared while handing over the seal after sealing of case property thereby affording opportunity to the IO to tamper with the case property.
14.Lastly, different versions have also come up regarding the place where the writing work was done at the spot. PW-3 stated that IO did all writing work while sitting on a bench in the police post which is adjacent to the spot where the accused was apprehended. Whereas, PW-5 revealed that the writing work was done while sitting at seats installed at the bus stop of Tikona Park. PW-4 testified that all the writing work was done at the spot while sitting at iron bench already lying near the spot of incident. About the availability of light at the spot, the versions of prosecution witnesses ranged from doing of writing work in the illumination of street light to use of mobile phone torch to do writing work.
15. To conclude, by crafty cross-examination, the ld. defence counsel has brought forth inconsistencies and contradictions in the testimonies of police witnesses. Any case based on the testimonies of police personnel only shall have no material inconsistencies otherwise the same is unlikely to be given any credence by the courts which are bound to give benefit of doubt to the accused. Glaring gaps have also been discovered in the case adumbrated by the State v. Krishna FIR No.02/2011 PS Timarpur 16/16 prosecution which makes recovery of illicit liquor itself doubtful and presumption u/s 52(1) of the Act has been successfully rebutted. It has not been proved with certitude that 18 litres of country liquor was recovered from the accused, so the accused Krishna is acquitted of the offence u/s 33 of the Act.
Announced in the open court today i.e. on 29th March, 2022 (ANURAG THAKUR) METROPOLITAN MAGISTRATE-02 TIS HAZARI COURTS, NEW DELHI This judgment consists of 16 pages and each and every page of this judgment is signed by me.
State v. Krishna FIR No.02/2011 PS Timarpur