Delhi District Court
Memo Of Parties vs State Of Delhi on 6 October, 2022
IN THE COURT OF SH. NAROTTAM KAUSHAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE
(SOUTH), SAKET COURTS, NEW DELHI
CA No.181/2022 CNR No.DLST010068892022
MEMO OF PARTIES
GULABO @ MEERA
W/o Sh.Singha Ram,
R/o H. No.-B-471, Sangam Vihar,
New Delhi
Appellant....
Vs.
State of Delhi
Respondents...
DATE OF INSTITUTION :06.08.2022
DATE OF ARGUMENTS :28.09.2022
DATE OF JUDGMENT :06.10.2022
Argued by: Sh.Kedar Yadav, Sh.S.K.Solanki, Sh.Sharun Daniel
& Sh.Rahul Yadav, counsels for appellant
Sh.R.K.Pandey, Ld. Chief PP for State/ respondent
JUDGMENT
1 Challenge in the present appeal is to Judgment of conviction dated 13.07.2022 and Order on Sentence dated 14.07.2022 passed by MM-04, South, Saket, New Delhi; vide which the appellant has been convicted for offence punishable CA No. 181/2022 Page No.-1 of 9 u/sec.-33 (a) & also U/sec.-33 (f) of the Delhi Excise Act read with Rule 20 of the Delhi Excise Rules and sentenced to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs.50,000/-.
2.1 Brief facts necessary for disposal of the appeal are :
that appellant/ accused was apprehended in the area of Sangam Vihar, New Delhi, in possession of 100 quarter bottles of country-made illicit liquor. At her instance, four cartons containing 200 quarter bottles of country-made illicit liquor without any permit or licence were also recovered from her possession. The liquor recovered was duly sealed & seized. Sample, thereof, was got tested and confirmed to be alcohol. After collecting evidence, charge-sheet was filed. Ld. MM took cognizance and charge was framed against the accused to which he pleaded not guilty and claimed trial.
2.2 Prosecution examined four witnesses in support of its case. Excise Control Laboratory report was admitted & proved u/sec.-293 Cr.P.C. and exhibited as Ex.PX. On the basis of evidence that had come up, appellant was held guilty and sentence as noticed above.
2.3 Aggrieved by the judgment of conviction & order on sentence, present appeal has been preferred.
3 Sh. Kedar Yadav, counsel for the appellant has CA No. 181/2022 Page No.-2 of 9 argued that the seizure memo of the alleged recovered liquor Ex.PW-1/A & Ex.PW-1/B are not credible evidence and the same can not be read against the appellant as the documents were purportedly prepared before registration of the FIR and bear the FIR number. It is argued that the documents were prepared before registration of FIR; meaning thereby that the appellant had already been impleaded and named in a fake & a false FIR.
Recovery was, thereafter, planted upon her. Relying upon law laid down by the Hon'ble High Court of in Delhi in Giri Raj Vs. State reported as 83 (2000) Delhi Law Times 201, it is argued that prosecution version becomes doubtful about the recovery of illicit liqour because of FIR number having been recorded in the recovery memos. It is next argued that the chemical examiner's report Ex.PX was not proved, as per the provisions of Indian Evidence Act and, therefore, can not be read in evidence. Recovery is also doubtful for the reason that there was no public witnesses associated in the search or seizure. There is also no evidence that seal handing over memo was prepared as regards the handing over the seal after the alleged samples were sealed. It is, therefore, argued that the case of prosecution is doubtful and the trial court committed an error in convicting the appellant.
4 Sh. R.K. Pandey, Ld. Chief PP for the State/ respondent has strongly opposed the appeal and it is argued that the FIR number mentioned in the seizure memos is in a different ink than the rest of the document, which indicates that the same was not recorded at the time of seizure. The seizure memos were CA No. 181/2022 Page No.-3 of 9 prepared at the time of recovery and the FIR number had been left blank, which was added subsequently; after the FIR stood registered. It is next argued that the Chemical Examiner's report is per se admissible u/sec.-293 Cr.P.C. There was no requirement of the same being proved by summoning the examiner. The proceedings exhibiting the Excise Control Laboratory Report, were conducted in the presence of the accused and the relevant witness was dropped. No objection was raised by the accused at that time and no prayer was ever made to recall the witness for cross-examination. It is further pointed out that the same was put to the appellant/ convict at the time of recording of her statement u/sec.-313 Cr.P.C. and she did not dispute the authenticity or integrity of the report. It is next argued that the prosecution case stands established and the appellant/ accused has failed to create any reasonable doubt in the mind of the court so as to warrant acquittal.
5 I have heard Sh. Kedar Yadav, counsel for the appellant & Sh. R.K.Pandey, Ld. Chief PP for the State/ respondent and with their assistance, I have gone through the impugned Judgment, order on sentence and the Trial Court record.
6.1 First & foremost argument sought to be raised by the appellant is based on law laid down in Giri Raj's case (supra). It is argued that the FIR number being mentioned on the seizure CA No. 181/2022 Page No.-4 of 9 memo, makes the recovery doubtful. This court is of the opinion that the law laid down by the Hon'ble High Court of Delhi in the judgment aforesaid can not be disputed. However, in the facts & circumstances of the cited case, FIR number was found to be in the same handwriting & same ink as the rest of the memo was prepared. The Hon'ble High Court of Delhi, therefore, held that the document became doubtful. However, in the present case, a study of both the seizure memos Ex.PW-1/A & Ex.PW-1/B reveals that the FIR number is recorded in a slightly darker ink though blue in colour, but the same is evidently and patently different from the rest of the body of documents. Author of the seizure memos ASI Manoj was examined as PW-3. He specifically deposed that he prepared the seizure memos Ex.PW- 1/A & Ex.PW-1/B. He, thereafter, prepared the rukka and handed over the same to Constable Rajesh for registration of FIR. Ct. Rajesh went to the Police Station and returned after getting the FIR registered and brought a copy thereof and the original rukka to the spot. It is, thereafter, that he prepared the site plan Ex.PW-1/D and issued notice u/sec.-41 Cr.P.C. to the accused, which is exhibited as Ex.PW-3/B. A study of the site plan Ex.PW-1/D and notice u/sec.-41 Cr.P.C. Ex.PW-3/B reveals that the FIR number mentioned therein is in the same ink as the rest of the body. Compared to the FIR Number mentioned on seizure memos Ex.PW-1/A & Ex.PW1/B, which as noticed above are in a slightly darker ink. This witness was not cross-examined or even suggested that the FIR number was mentioned in the seizure memos, simultaneous or contemporary to the preparation of those CA No. 181/2022 Page No.-5 of 9 documents. In the absence of any such question having been put to the author of those documents. This court is of the opinion that the defence has not done its job and a discrepancy sought to be read in the documents was never put to the author thereof and argument sought to be raised at the stage of appeal can not be permitted to be raised.
6.2 Next argument sought to be raised by appellant's counsel is that the Chemical Examiner's report Ex.PX was never proved or put to the accused. A perusal of the report reveals that the same is per se admissible u/sec.-293 Cr.P.C. Proceedings dated 11.11.2019 reveal that the same was exhibited as Ex.PX on 11.11.2019 in the presence of accused invoking sec.-293 Cr.P.C. The argument of ld. Counsel for the appellant that the document had to be put to the accused and exhibited after admission thereof by the accused is not meritorious, as the said procedure is prescribed u/sec.-294 Cr.P.C. whereas, the report in the present case was governed u/sec.-293 Cr.P.C. For ready reference, Sec.- 293 Cr.P.C. is reproduced hereinbelow:-
293. Reports of certain Government scientific experts.-
(1)Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.CA No. 181/2022 Page No.-6 of 9
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
[(b) the Chief Inspector of- Explosives;]
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, [Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
[(g) any other Government scientific expert specified, by notification, by the Central Government for this purpose] A study of Sec.-293 Cr.P.C. reveals that there is no requirement in the statute of the documents being put to the accused for his admission. Therefore, this argument also does not support the case of the accused.
6.3 As regards the argument that there was no public witnesses associated; the law is settled by now that the public is generally and usually averse to joining the recovery proceedings and becoming a witness for obvious reasons. In the absence of any reasonable doubt created in the proceedings conducted by the CA No. 181/2022 Page No.-7 of 9 police officials, this court is of the opinion that no illegality can be read for public witnesses having not associated in the search, seizure & sealing. Similarly, the argument that seal handing over memo was not prepared does not impress this court, as the first IO/ ASI Manoj Kumar (PW-3) in his cross-examination has specifically deposed that seal after use was handed over to Ct. Rajesh. Ct. Rajesh (PW-1) has also deposed in his cross- examination that seal after use was handed over to him. No questions were put to any of the witnesses as regards the duration for which the seal remained with the witness or as to when the seal was returned by Ct. Rajesh to the IO. No reasonable doubt having been created or pointed out about the case property or the samples being tempered with, this court is of the opinion that the appellant has failed to create any reasonable doubts in the mind of this court, as regards the search, seizure and recovery. The Trial Court has, thus, committed no error in holding the appellant guilty and convicting him.
7. Finding no illegality in appreciation of evidence or application of law, the Judgment of conviction dated 13.07.2022 passed by MM-04, South, Saket, New Delhi is upheld. As regards the Order on Sentence dated 14.07.2022, the only argument raised is that the appellant is an old lady and, therefore, a lenient approach be taken. A study of the order on sentence reveals that the Trial Court has itself taken a lenient view considering the age & gender of the appellant and has convicted her only for 6 months of simple imprisonment. The same can not CA No. 181/2022 Page No.-8 of 9 be said to be harsh. Therefore, the Order on Sentence dated 14.07.2022 passed by MM-04, South, Saket, New Delhi is also upheld.
8 Appeal is accordingly dismissed and appellant be taken into custody to undergo the sentence awarded by the Trial Court. Appeal file be consigned to record room. Trial Court record be sent back along with copy of this judgment.
Digitally signed by NAROTTAM NAROTTAM KAUSHAL
KAUSHAL Date: 2022.10.06
15:47:25 +0530
Announced in (NAROTTAM KAUSHAL)
the open court on Principal District & Sessions Judge (South)
06.10.2022 Saket Courts, New Delhi
CA No. 181/2022 Page No.-9 of 9