Delhi District Court
State vs . 1- Surjeet Singh on 4 July, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 666/16
U/s : 33/38/52 Delhi Excise Act
P.S. : Ranhola
State Vs. 1- Surjeet Singh
2- Sumit
JUDGMENT:
a) CNR No. : DLWT02-0079262017
b) Sl. No. of the Case : 5190/17
c) Name & address of the : HC Parveen Kumar, No. 207/W,
complainant. PS Ranhola, Delhi.
d) Name & address of : 1- Surjeet Singh S/o Sh. Harbhajan
accused Singh, R/o H.No. 136, Gali No. 15,
Gopal Nagar, Najafgarh, Delhi.
2- Sumit S/o Sh. Shyam Singh,
R/o 46/7, 7/29-B, Ganga Ram Park,
Ranhola Vihar, Delhi.
e) Date of Commission of : 09.09.2016
offence
f) Offence complained off : U/s 33/38/52(2) Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Acquitted
i) Date of such order : 04.07.2022
FIR No: 666/16 State v. Surjeet Singh Page No.1/23
Date of Institution : 11.08.2017
Final arguments heard on : 04.07.2022
Judgment Pronounced on : 04.07.2022
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 09.09.2016 at about 01:20 AM at main Ranhola Road near Murga Chowk, Vikas Nagar, New Delhi within the jurisdiction of PS Ranhola, accused Surjeet Singh was found in possession of 15 petties containing 50 quarter bottles in each of "Asli Santra Masaledar Deshi Sharab" for Sale in Haryana only, 2 plastic kattas containing 100 quarter bottles in each of "Asli Santra Masaledar Deshi Sharab"
for sale in Haryana only (quantity 180 ML each), 14 gatta petties containing 48 quarter bottles in each of "Impact Grain Whiskey" for sale in Haryana only (quantity 180 ML each), which was being carried in Honda City Car bearing registration No. DL-9CU-0018 and the aforesaid offending car was registered in the name of Sumit, without any license or permit and committed offences punishable U/s 33/38/52(2) Delhi Excise Act.
FIR No: 666/16 State v. Surjeet Singh Page No.2/23
2. After investigation, challan for offences U/s 33/38/52(2) Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33/38/52(2) Delhi Excise Act was framed against accused persons on 08.11.2017, to which they pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined three witnesses.
5. PW-1 HC Parveen Kumar, No. 207/W PS Ranhola is the complainant in the present case, who deposed that on 09.09.2016, he was posted at PS Ranhola as HC. On that day he alongwith Ct. Ashok were on patrolling duty in the area of Beat No. 1 & 2 at about 01:00 AM, when they reached main Ranhola Road, near Murga Chowk, Vikas Nagar, one secret informer met him and informed that one Honda City Car of black colour bearing FIR No: 666/16 State v. Surjeet Singh Page No.3/23 registration No. DL-9CU-0018 would come from the side of Ganda Nala and the same would be carrying illicit liquor and if an immediate raid is conducted, the driver of the said car would be apprehended red handed. Upon receipt of said information, he put up the barricading on the said road and started checking the vehicle. At about 01:20 AM, one car bearing registration No. DL-9CU-0018, which was of make Honda City Black Colour, came from the side of Ganda Nala, Ranhola. The said car was made to stop and the driver of the said car revealed his name as Surjeet (who was present in the court that day and correctly identified by the witness). The said car was checked and 15 gatta petties were found lying on the back seat of the said car alongwith two white kattas. The said gatta petties and kattas were found containing illicit liquor of "Asli Santra Masaledar Deshi Sharab" for sale in Haryana only. The dikki of the said car was found containing 14 petties containing illicit liquor of "Impact Grain Whiskey for sale in Haryana only. On inquiry the accused could not give any satisfactory answer. The above said 15 gatta petties which were lying on the back seat of the car were taken out and on counting FIR No: 666/16 State v. Surjeet Singh Page No.4/23 each gatta peti was found containing 50-50 quarter bottles each of "Asli Santra Masaledar Deshi Sharab" for sale in Haryana only and two kattas were also taken out which were found containing 100-100 quarter bottles each of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only. Thereafter, the 14 gatta petties which were found in dikky of the car were taken out and on counting each gatta peti was found containing 48-48 quarter bottle each of "Impact Grain Whiskey" for sale in Haryana only. Thereafter, 1-1 quarter bottles were taken as sample for recovered 15 gatta petties and the two kattas and the mouth of the samples were sealed with the seal of "PK" and remaining quarter bottles were put in the same gatta petties and katta and was sealed with the seal of "PK". The samples of the 15 gatta petties were given serial No. 1-A to 15-A and samples taken out from the katta were given 16-A and 17-A. The above said gatta petties were given serial no. 1 to 15 and the kattas were given serial no. 16 and 17.
Thereafter, 1-1 quarter bottles were taken as sample from recovered 14 gatta petties and the mouth of the samples were sealed with the seal of "PK" and remaining quarter bottles were put FIR No: 666/16 State v. Surjeet Singh Page No.5/23 in the same 14 gatta petties and were sealed with the seal of "PK".
The samples of the 14 gatta petties were given serial no. 18-A to 31-A. The abovesaid gatta petties were given serial no. 18 to 31. In the meantime, Ct. Harpawanjeet Singh also arrived at the spot who shared the information of accused with illicit with him. Thereafter, he prepared the seizure memo of illicit liquor vide Ex.PW1/A. Form M-29 was prepared by him vide Ex.PW1/B. He also seized the abovesaid car vide Ex.PW1/C. Thereafter,, seal was handed over by him to Ct. Ashok vide seal handing over memo Ex.PW1/D. Thereafter, he prepared the rukka Ex.PW1/E and handed over the same to ct. Ashok which he took the same to PS, got the case registered and came back alongwith IO HC Mahender. He produced to the IO the custody of the accused and the recovered illicit liquor alongwith the car and relevant documents of the present case. IO made inquiry from the accused and thereafter IO prepared the site plan of the spot at his instance vide Ex.PW1/F. Thereafter, he was relieved from the investigation of the present case.
At that stage, MHC(M) of PS Ranhola had produced one quarter bearing "Asli Santra Masaledar Deshi Sharab" for sale in FIR No: 666/16 State v. Surjeet Singh Page No.6/23 Haryana only and one quarter bottle of "Impact Grain Whiskey" for sale in Haryana only. The said quarter bottle bears the particulars of the present case FIR and the mouth of both the samples were properly sealed with the seal of "MS" and the same were then Ex.P1 and ExP2.
At that stage, MHC(M) had also produced order of confiscation dated 22.09.2017 with the order of destructions dated 09.11.2017 annexed with the report and its certificate under the seal and signature of SHO PS Ranhola. The said documents also contained photograph containing images of recovered quarter bottle of illicit liquor and the gatta petties. The same was shown to the witness and he correctly identified the case property and the same was then Ex.P2(Colly). The destruction order containing the particulars of the present case FIR as serial no. 05 whereby the recovered liquor of the present case was destroyed vide order dated 12.09.2017. The said documents were taken on record that day as Ex.P3(Colly, running into 5 pages).
The photographs of the abovesaid car bearing registration no. DL-9CU-0018 were shown to the witness, which FIR No: 666/16 State v. Surjeet Singh Page No.7/23 already from part of judicial file. On seeing the same witness correctly identified the car used by the accused on the date of incident and stated that the above said illicit liquor was recovered from the possession of the accused. Same were Ex.P-4(Colly) .
In his cross-examination, witness/complainant deposed that he left the PS at about 11:20 PM for patrolling on govt motorcycle. He did not remember his departure entry No. Ct. Ashok met him after 1 hour when he reached at his point. Secret informer remained with them till they apprehended the accused. It was correct that they did not put barricades and also did not check any vehicle prior to this information. He received secret information about 01:00 AM. The spot was not thickly residential area. No public persons were coming and going there at that time. He did not ask any public person to join the investigation at the time of recovery as there was no public person available due to odd time. Ct. Ashok went to PS for registration of case at bout 03:20 AM and came back at about 04:10 AM alongwith second IO. He prepared seizure memo of liquor, seizure memo of vehicle, Form M-29 before sending rukka. FIR No. was mentioned by the second IO as he handed over the FIR No: 666/16 State v. Surjeet Singh Page No.8/23 documents to him. Second IO prepared site plan at about 04:20 AM at his instance but he did not obtain his signature on the same. Seal was given back to him on next day at PS. He left the spot the spot at about 04:25 AM. He prepared the documents while sitting on patri under the pole which was situated at about 10 meter away from the spot. It was correct that quarter bottles of Asli Santara Masaledar Deshi Sharab was quarterly empty. It was wrong to suggest that nothing incriminating had been recovered from the accused or at his instance or that he was deposing falsely or that all the proceedings had been conducted while sitting at the PS or that the case property had been planted upon the accused. It was wrong to suggest that he was deposing falsely being official witness.
6. PW-2 HC Mohinder Singh, No. 917/OD, PS Outer District, who deposed that on 09.09.2016, he was posted at PS Ranhola as a HC. On that day, investigation of the present case was marked to me by the order of SHO. He alongwith Ct. Ashok went to the spot where he met HC Praveen who produced before him both the accused persons alongwith recovered case property and FIR No: 666/16 State v. Surjeet Singh Page No.9/23 relevant documents. He interrogated HC Praveen and prepared site plan at his instance which was already Ex.PW1/F. He interrogated the accused Surjeet and arrested him vide memo Ex.PW2/A. He conducted personal search of accused Surjeet vide memo Ex.PW2/B. He recorded disclosure statement of the accused vide memo Ex.PW2/C. Case property deposited in malkhana. Accused was produced before the court and was sent to JC. Sample was sent to Excise Lab and he obtained the result which was Ex.P1. He obtained the ownership of the offending vehicle from the authority and thereafter he arrested the owner of the vehicle namely Sumit vide memo Ex.PW2/D. He conducted his personal search vide memo Ex.PW2/E. He recorded the statement of witnesses and prepared the chargesheet. Both the accused persons were present in the court that day and correctly identified by the witness.
In his cross-examination, witness/IO deposed that he left the PS at about 04:15 AM on his private motorcycle. He did not remember whether Ashok had accompanied him on his motorcycle or not. He reached at the spot within 5 minutes. He received rukka from DO. He had not made any addition or alteration on the FIR No: 666/16 State v. Surjeet Singh Page No.10/23 documents which he received from IO. He had not obtained the signature of accused on site plan. He had not shown the street light in the site plan. First IO left the spot at about 04:25 AM. Accused Surjeet was arrested at about 05:00 AM. He conveyed the information of arrest to his relative through his mobile phone but none of his relative arrived at the spot. Case property was taken to the PS in the offending vehicle but he did not remember who drove the said vehicle to the PS. It was correct that he did not sit in the said vehicle while case property was taken to PS. Ct. Ashok also accompanied him to PS from the spot but he did not remember by what mode of vehicle he went to PS. He deposited the case property in malkhana. It was wrong to suggest that nothing was recovered from the accused persons or that he was deposing falsely or that all the proceedings were conducted while sitting at the PS.
7. PW-3 Ct. Ashok, No. 10141/DAP, Second Batallion, NPL, Kingsway Camp, Delhi, who deposed that on 09.09.2016, he was posted at PS Ranhola as Ct. On that day, he alongwith HC Praveen were on patrolling duty on govt motorcycle bearing no. FIR No: 666/16 State v. Surjeet Singh Page No.11/23 DL-1SZ-5101 in Division no. 1 and while patrolling at about 01:00 AM, they reached at Main Ranhola Road near Murga Chowk, Vikas Nagar, Delhi. On reaching there, they met secret informer who informed them that one car bearing no. DL-9CU-1108 black coloured make Honda City would come from the side of Ganda Nala and the said vehicle was having illicit liquor and if raid would be conducted, illicit liquor could be recovered. No public witness was joined due to the late hours. Thereafter, they put barricades on the Murga Chowk for checking the vehicles at about 01:20 AM. The aforesaid car came from the Ganda Nala and on the pointing out of secret informer, they apprehended the said car and checked the said car and found that the said car was containing 15 carton boxes and two white kattas of quarter bottles of illicit liquor of the brand "Asli Santra Masaledar Deshi Sharab" alongwith two white kattas. They checked the dikki of the said carr and found illicit liquor of the brand "Impact Grain Whiskey". The name of the driver of the said car was revealed as Surjeet, who was accused. He could identify the accused, if shown to him. Ld. Counsel for the accused did not dispute his identity. They checked the aforesaid 15 carton boxes FIR No: 666/16 State v. Surjeet Singh Page No.12/23 and found that each carton box was containing 50 quarter bottles of illicit liquor of Asli Santra Masaledar Deshi Sharab. They checked the aforesaid two kattas and found that each katta was containing 100 quarter bottles of Asli Santra Masaledar Deshi Sharab. They checked the aforesaid 14 carton boxes and found that each carton box was containing 48 quarter bottles of Impact Grain Whiskey. HC Praveen separated one quarter bottle as a sample from each carton box and katta and sealed them with the seal of "PK". IO/HC Praveen filled form M-29. HC Praveen sealed the remaining case property with the seal of "PK" and seized the same vide seizure memo already Ex.PW1/A. HC Praveen seized the aforesaid car vide seizure memo already Ex.PW1/C. Seal after use was handed over to him vide memo already Ex.PW1/D. In the meantime, Ct. Harpawanjeet Singh from Excise Department also came at the spot. HC Praveen prepared the rukka and same was handed over to him for registration of FIR from PS. Accordingly, he went to the PS and got his FIR registered and the same was handed over to HC Mohinder for investigation. He, alongwith IO/HC Mohinder reached at the spot and HC Praveen produced accused alongwith case property and FIR No: 666/16 State v. Surjeet Singh Page No.13/23 prepared relevant documents before the IO. IO interrogated HC Praveen and prepared site plan which was already Ex.PW1/F and thereafter, IO relieved HC Parveen from the spot. IO arrested, personally searched and recorded disclosure statement of the accused Surjeet vide memo already Ex.PW2/A, Ex.PW2/B and Ex.PW2/C respectively. Case property was deposited in Malkhana, IO recorded hi statement. He could identify the case property, if shown to him ( case property was already exhibited in the testimony of PW-1).
In his cross-examination, witness deposed that he left the PS for patrolling at about 12:15 AM on his private motorcycle. He did not remember the DD No. of his departure. The secret informer remained with them for about ten minutes. In the meanwhile, they checked 4-5 vehicles before apprehending the offending vehicle. He did not know from how much distance, secret informer pointed towards the offending vehicle. It was correct that spot was residential area. They put the barricades on the road and he was accompanied with HC Praveen. He left the spot alongwith the rukka at about 03:20 AM and returned back to the spot at about FIR No: 666/16 State v. Surjeet Singh Page No.14/23 04:15 AM alongwith IO on his motorcycle. Before preparing the rukka, IO prepared the seizure memo of liquor and offending vehicle only. He did not remember whether the seal was handed over to him before preparation of rukka or after its preparation. He deposited the seal on the same day in the malkhana in the evening. He did not remember at what time the site plan was prepared. He did not remember whether IO obtained the signatures of accused Surjeet on the site plan. It was correct that at the time of preparation, it was dark but street lights were present at the spot. He did not remember where IO sat at the spot while preparing the documents. HC Praveen was relieved from the spot by the IO and site plan was prepared in his absence by the IO. Arrest memo was prepared at about 05:00 AM. He did not remember at what time, he finally left the spot. IO took the case property i.e. liquor to PS but he did not remember by what mode of conveyance it was taken to PS. IO called some private person at the spot and he took offending vehicle to PS while driving the same alongwith IO. 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 FIR No: 666/16 State v. Surjeet Singh Page No.15/23 implicated or that he was deposing falsely.
8. The accused admitted FIR 666/16 dated 09.09.2016, alongwith certificate u/s 65B of Indian Evidence Act, DD No. 4-B & 72-B dated 09.09.2016 vide Ex.A1-A4. Statement of Ct. Ashok, Ct. Anil Ct. Ravinder/DHG vide Ex.A-5 to Ex.A-7. Report of Chemical examiner and photographer Vijay vide Ex.A8-Ex.A9. u/s 294 Cr.P.C respectively.
9. I have heard Ld. APP for the State, Ld. Counsel for accused persons and have carefully gone through the material on record.
10. It is a settled proposition of criminal law that 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 FIR No: 666/16 State v. Surjeet Singh Page No.16/23 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 persons Surjeet and Sumit are entitled to be acquitted for the charge by reasons of reasonable doubts in the prosecution story.
12. To infer the innocence of the accused, it is noticed that PW1 was tipped off by secret informer that illicit liquor can be apprehended from one Honda City car of black colour bearing registration No. DL-9CU-0018 and PW1 was also informed in advance about the place from where the accused can be arrested with illicit liquor. It is surprising that when police had advance information they could have joined an independent person in the search and seizure proceedings. Also, as deposed in testimony of FIR No: 666/16 State v. Surjeet Singh Page No.17/23 complainant/PW-1, he had not asked any public persons to join the investigation, as there was no public persons available due to odd time. It is clear that no serious attempt was made by the concerned PW1 even IO/PW-2 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. It has been stated by PW-3 in his cross examination that IO had called some private person at the spot and he took offending vehicle to PS while driving the same alongwith the IO. Thus, there is a material contradiction in the testimony of PW-2/IO and PW-3, as public person was available at the spot yet not joined in the search and seizure proceedings. 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 FIR No: 666/16 State v. Surjeet Singh Page No.18/23 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 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 FIR No: 666/16 State v. Surjeet Singh Page No.19/23 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 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 FIR No: 666/16 State v. Surjeet Singh Page No.20/23 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 facts taken together make the prosecution case highly doubtful".
13. Further, to infer the innocence of the accused persons it is noticed that the IO has not made constable Harpawanjeet Singh as a witness, who was also present at the spot and had come from the Excise Department that he had also secret information that illicit liquor can be recovered from the offendng vehicle. The name of the said Ct. Harpawanjeet Singh is not present even in the list of the witnesses and testimony of PW-1 qua the said Ct. Harpawanjeet Singh is hearsay in nature and cannot be relied upon.
14. It is noticed that PW-1 in his cross-examination had given the reason of not joining an independent witness as due to odd time no public person was available. Then how was a private person FIR No: 666/16 State v. Surjeet Singh Page No.21/23 available for driving the offending vehicle to the PS as deposed by PW-3 in his cross-examination.
15. 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 persons are 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 FIR No: 666/16 State v. Surjeet Singh Page No.22/23 conscientiously and reasonably entertains doubt regarding the guilt of the accused."
16. 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 Surjeet and under Section 52(2) Delhi Excise Act against the accused Sumit beyond reasonable doubt. The accused Surjeet is hereby acquitted for the charged offence u/S 33/38 Delhi Excise Act and accused Sumit is hereby acquitted for the charged offence u/S 52(2) Delhi Excise Act.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 04th day of July, 2022 04.07.2022
FIR No: 666/16 State v. Surjeet Singh Page No.23/23