Delhi District Court
State vs . Arti on 11 April, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 57/20
U/s : 33/38 Delhi Excise Act
P.S. : Ranhola
State Vs. Arti
JUDGMENT:
a) CNR No. : DLWT02-006848-2020
b) Sl. No. of the Case : 3643/20
c) Name & address of the : Ct. Vinod Kumar, No. 2429/OD,
complainant. PS Ranhola, Delhi.
d) Name & address of : Smt. Arti W/o Sh. Surjeet,
accused R/o H.No. D-73, Gali No. 10,
Harphool Vihar, Delhi.
e) Date of Commission of : 22.01.2020
offence
f) Offence complained off : U/s 33/38 Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Acquitted
i) Date of such order : 11.04.2022
Date of Institution : 22.08.2020
Final arguments heard on : 11.04.2022
Judgment Pronounced on : 11.04.2022
FIR No: 57/20 State v. Arti Page No.1/18
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 22.01.2020 at about 12.:30 at Gali No. 10, Harphool Vihar, Delhi accused was found in possession of three Plastic Katta containing 133 quarter bottles of illicit liquor of the brand "Moto Orange Spical Country Liquor" for sale in Haryana only, 71 quarter bottles of illicit liquor of the brand "Episode Classic Whiskey" for sale in Haryana only, 33 quarter bottles of the brand "Impact Grain Whiskey" for sale in Haryana only and 13 bottles of Beer of brand "Kingfisher Super Strong Premium Beer" for sale in Haryana only, without any license or permit and committed an offence punishable U/s 33/38 Delhi Excise Act.
2. After investigation, challan for offence U/s 33/38 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33/38 Delhi Excise Act was framed against accused on 16.12.2021, to which she pleaded not guilty and claimed trial. FIR No: 57/20 State v. Arti Page No.2/18
4. In support of its case, prosecution examined two witnesses.
5. PW-1 HC Birbal Singh is the IO of the present case, who deposed that on 22.01.2020, he was posted at PS Ranhola as HC. On that day, on receiving DD No. 31-B he reached at the spot. On reaching there, he met Ct. Vinod and W/Ct. Kavita and they produced before him accused Arti alongwith 3 plastic katta of illicit liquor recovered from her. He requested 3-4 public persons to join the investigatioon but none agreed and went away without disclosing their names and addresses. He checked the first plastic katta and found same was containing 133 quarter bottles of illicit liquor of the brand "Mota Orange Spical Country Liquor" for sale in Haryana only. He separated 2 quarter bottles and sealed them with the seal of "SD" and remaining quarter bottles were also sealed with the seal of "SD". He checked second plastic katta and found same was containing 71 quarter bottles of illicit liquor of the brand "Episode Classic Whiskey" for sale in Haryana only and 33 quarter bottles of the brand "Impact Grain Whiskey" for sale in Haryana FIR No: 57/20 State v. Arti Page No.3/18 only. IO sealed 1 quarter bottle from each brand and sealed them with seal of "SD", remaining quarter bottles were also sealed with the seal of "SD". IO checked the third plastic katta and found same was containing 13 bottles of beer of brand " Kingfisher Super Strong Premium Beer" for sale in Haryana only. He took one sample bottle and sealed it with seal of "SD", remaining bottles were also sealed with seal of "SD". IO filled form M-29 vide Ex.PW1/A. IO seized the case property vide memo Ex.PW1/B. IO recorded statement of Ct. Vinod Ex.PW1/C. IO prepared rukka Ex.PW1/D and handed over the same to Ct. Vinod for registration of FIR who took same to PS and got FIR registerd and came back at the spot alongwith copy of FIR and original rukka and same was handed over to him. IO prepared site plan at instance of complainant Ex.PW1/E. IO arrested, personally searched (through W/Ct Kavita) and recorded disclosure statement of accused vide memos Ex.PW1/F, PW1/G and PW1/H. Case property deposited in malkhana. Accused was produced before the court and she was released on bail by Hon'ble Court. Sample was sent to Excise Lab and received the result which was already Ex.A-4. IO recorded statement of witnesses and prepared FIR No: 57/20 State v. Arti Page No.4/18 the charge-sheet. Accused Arti was present in the court and correctly identified by the witness. IO stated that he could identify the case property, if shown to him.
At that stage, MHC(M) states that case property has been destroyed by the order of Asst. Commissioner Excise which is Ex.P1. MHC(M) also produced photographs and CD of the case property vide Ex.P2 (Colly). MHC(M) produced five sample bottles, same were shown to the witness and witness correctly identified the same i.e. vide Ex.P3(Colly).
In his Cross-examination he further deposed that he received the information at around 12:15 PM through DO. He left the PS within 5 minutes. Distance between spot and PS is around 10 minutes drive. It was correct that case property had already recovered from the accused before his arrival at spot. No CCTV camera were installed at the spot. Case property was sealed at the spot. No photography of sealing was done. It was correct that spot was residential area. IO requested neighbours/residents of locality to join the investigation. No written notice was served upon the public persons who refused tojoin investigation. Ct. Vinod took FIR No: 57/20 State v. Arti Page No.5/18 rukka to PS at around 01:30 PM and he returned back at around 02:30 PM. IO had prepared seal handing over memo at around 03:50 PM. IO received his seal back on the next day. Accused was medically examined through W/Ct. Kavita at around 03:00 PM. All the documents were prepared at the spot. It was wrong to suggest that nothing was recovered from the accused or that case property was planted upon the accused or that accused was falsely implicated or that he was deposing falsely.
6. PW-2 Ct. Vinod, No. 18498/DAP is complainant of this case and deposed that on 22.01.2020, he was posted at PS Ranhola as a Ct. On that day, he alongwith W/ct. Kavita were on patrolling duty and while patrolling they reached in Gali No. 10, Harphool Vihar, Delhi. On reaching there, they saw that one lady was standing in front of H.No. D-72 and she was having 3 plastic kattas and on seeing them in police uniform, she got nervous. They got suspicious and stopped the said lady and inquired about the contents of plactic katta but she could not give any satisfactory reply. They checked the plastic katta and found that same was FIR No: 57/20 State v. Arti Page No.6/18 containing quarter bottles of illicit liquor. They informed the said fact to DO. IO came at the spot and recorded his statement vide Ex.PW1/C. IO requested 3-4 public persons to join the investigation but none agreed and went away without disclosing their names and addresses. IO checked the first plastic katta and found the same was containing 133 quarter bottles of illicit liquor of the brand "Moto Orange spical Country Liquor" for sale in Haryana only. IO separated 2 quarter bottles and sealed them with the seal of "SD" and remaining quarter bottles were also sealed with the seal of "SD". IO checked second plastic katta and found same was containing 71 quarter bottles of illicit liquor of the brand "Episode Classic Whiskey" for sale in Haryana only and 33 quarter bottles of the brand "Impact Grain Whiskey" for sale in Haryana only. IO separated 1 quarter bottle from each brand and sealed them with seal of "SD", remaining quarter bottles were also sealed with seal of "SD". IO checked the third plastic katta and found same was containing 13 bottles of beer of brand "Kingfisher Super Strong Premium Beer" for sale in Haryana only. IO took one sample bottle and sealed it with seal of "SD", reamaining bottles were also sealed FIR No: 57/20 State v. Arti Page No.7/18 with seal of "SD". IO filled form M-29 vide Ex.PW1/A. IO seized the case property vide memo Ex.PW1/B. IO recorded his statement vide Ex.PW1/C IO prepared rukka vide Ex.PW1/D and handed over the same to him for registration of an FIR. He took same to PS and got FIR registered and came back at the spot alongwith a copy of FIR and original rukka and same was handed over to IO. IO prepared site plan at his instance vide Ex.PW1/E. IO arrested, personally searched (through W/Ct. Kavita) and recorded disclosure statement of accused vide memos Ex.PW1/F, PW1/G and PW1/H. Case property deposited in malkhana. Accused was produced before the court and she was released on bail by Hon'ble Court. Sample was sent to Excise Lab. Accused Arti was present in the Court and correctly identified by the witness. Case property was already exhibited in the testimony of PW-1.
In his Cross-examination he further deposed that he informed to the DO at around 12:30 PM. He took the rukka to PS at around 02:00-02:30 PM but he did not remember when he returned back. He did not request any public person to join the investigation. Seal after use was handed over to him but he did not remember the FIR No: 57/20 State v. Arti Page No.8/18 time. IO prepared memo in that regard but he did not remember where it was prepared. It was wrong to suggest that nothing was recovered from the accused or that case property was planted upon the accused or that he was deposing falsely.
7. After completion of prosecution evidence, all the incriminating evidence was put to accused U/s 313 Cr.P.C and her explanation was recorded, wherein she denied all the incriminating evidence against her and claimed to have been falsely implicated and case property planted upon her. Accused chose not to lead DE.
8. The accused admitted FIR 57/20 alongwith certificate u/s 65B of Indian Evidence Act, DD No. 31-B dated 22.01.2020, Chemical examiner report and Statement of Ct. Sumit vide Ex.A-1 to Ex.A-5 u/s 294 Cr.P.C respectively.
9. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
10. It is a settled proposition of criminal law that FIR No: 57/20 State v. Arti Page No.9/18 prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
11. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused Arti is entitled to be acquitted for the charge by reasons of reasonable doubts in the prosecution story.
12. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: "22.49 Matters to be entered in Register No.II - FIR No: 57/20 State v. Arti Page No.10/18 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 & Police Posts where Register No. II is maintained.
13. In the present case, the above said provision appears to have not been complied with by the prosecution. As per the prosecution version, at the time of the apprehension of the accused with illicit liquor from his possession, Ct. Vinod (PW2) had left the PS for patrolling duty alongwith W/Ct. Kavita but the said DD entries vide which they had left the PS for patrolling duty and to perform proceedings post seizure of illicit liquor have not been brought on record. In the opinion of this Court, the prosecution was under an obligation to bring on record and prove the above said DD entries FIR No: 57/20 State v. Arti Page No.11/18 vide which the above said police officials had left the PS, so as to prove the possibility of availability of said police officials PW2 and W/Ct. Kavita at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have brought on record and prove the DD entries by which the above said police officials had left the PS, so as to inspire the confidence regarding their availability and presence at the place of apprehension of the accused, since the said police officials were under bounden duty to enter their departure and arrival from/at the police station by making a D.D. entry in that respect as per the aforesaid mentioned Punjab Police Rules.
14. At this juncture, it is relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed 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 & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then FIR No: 57/20 State v. Arti Page No.12/18 it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record and prove the relevant DD entries as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the police officials.
15. As deposed in his testimony, PW-1 had asked 3-4 public persons to join the investigation, but all of them refused citing their personal reasons without disclosing their names and addresses. It is clear that no serious attempt was made by the concerned IO/PW1 to get independent public persons to join the police proceedings of seizure and apprehension of the accused with case property despite availability of such witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings for joining the investigation since after the apprehension of the accused person with case property, there was no possibility of accused person escaping their FIR No: 57/20 State v. Arti Page No.13/18 arrest or crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of apprehension by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under: " It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the FIR No: 57/20 State v. Arti Page No.14/18 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". In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: " I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of FIR No: 57/20 State v. Arti Page No.15/18 contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these FIR No: 57/20 State v. Arti Page No.16/18 facts taken together make the prosecution case highly doubtful".
16. Keeping in view the background of the case, defence of the accused, non-following the established procedure of law by the investigating agency, as discussed above, this Court is of the opinion that the accused is entitled to the benefit of doubt. In this regard, reliance can be placed on the case of State of Haryana v. Bhagirath, AIR 1999 SC 2005, the Hon'ble Supreme Court illustrated the doctrine of benefit of doubt in the words "The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the FIR No: 57/20 State v. Arti Page No.17/18 accused."
17. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, it is held that the prosecution has failed to prove the alleged offence under Section 33/38 Delhi Excise Act against the accused Arti beyond reasonable doubt. The accused Arti is hereby acquitted for the charged offence.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 11th day of April, 2022 11.04.2022
FIR No: 57/20 State v. Arti Page No.18/18