Delhi District Court
State vs . Rajesh Fir No. 67/2018 on 4 December, 2019
State vs. Rajesh FIR No. 67/2018
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURT, DELHI
State vs. Rajesh
FIR No. 67/2018
U/sec. 33/38 Delhi Excise Act
PS: Mundka
Date of institution of the case: 28.06.2018
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 04.12.2019
Unique I. D. No. 4513/2018
JUDGMENT
a) Date of commission of the offence : 10.02.2018
b) Name of the complainant : Head Constable Devender Singh
c) Name of the accused and his parentage : Rajesh,
S/o Sh. Rattan Singh,
R/o. C-4/4, Block No. 4, Swarn
Park, Mundka, Delhi.
d) Offence complained of or proved : Sec. 33/38 Delhi Excise Act
e) Plea of the accused : Pleaded not guilty
f) Final order : Acquitted
g) Date of such order : 04.12.2019
h) Brief reasons for the just decision of the case:
Page No.1 of 16State vs. Rajesh FIR No. 67/2018 Succinctly stated, the facts of the prosecution case are that on 10.02.2018, Head Constable Devender along with Head Constable Kulvir was patrolling in government vehicle LP-9, which was being driven by a private driver namely Nishu. While they were going towards Neelwal village, one Santro car having tinted glasses crossed their LP-9. On suspicion, they chased the Santro car. The said Santro car turned towards a gali and thereafter, its driver fled away from there leaving behind the car. On checking, illicit liquor was found loaded in the said car. Head Constable Devender informed the Police Control Room about the same and the information was recorded at police station vide DD Entry No. 3-A. The said DD Entry was assigned to Head Constable Virender Singh for necessary action. Accordingly, he along with Constable Devender went to the spot. On search of the car, 38 gatta patties containing quarter bottles of two different brands were recovered from the car. The case property was seized and converted into pullanda after taking sample of one quarter from each box. On the basis of the aforesaid recovery, the present case FIR was registered against unknown person and investigation was conducted.
On the basis of the registration number of the Santro car, IO obtained the ownership details from the transport Authority. Thereafter, he served a notice under section 91 of the Code of Criminal Procedure, 1973 upon the owner namely Rajesh whereby he was asked to produce the Registration Certificate of the said car. However, the owner neither replied nor appeared before the IO. Therefore, IO conducted raid at the house of the owner of the said Santro car, but he was not found there. Later on, he was apprehended from Mangal Bazar and was arrested in the present case.
After completion of the investigation, charge-sheet under sections 33/38 of the Delhi Excise Act (herein after referred to as the Act) was filed before the court.
Page No.2 of 16State vs. Rajesh FIR No. 67/2018 Consequently, the accused was summoned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused as per norms.
Thereafter, charge under section 33/38 of the Act was framed against the accused to which he pleaded not guilty and claimed trial.
With a view to connect the accused with the crime, the prosecution has examined as many as six witnesses.
PW1/Head Constable Devender was the complainant. He testified that 10.02.2018, he alongwith Head Constable Kulbir was patrolling in the area. At about 2:00 a.m., while they were going towards Neelwal village, one Santro car DL-1CP-9384 crossed their vehicle. On suspicion, they chased that car, however, the driver flew away leaving behind the car. The car was checked and it was found containing carton boxes of liquor. He stated that they informed the PCR and Head Constable Virender along with Constable Ravinder came at the spot. They handed over the car to him. IO asked 3-4 public persons to join the proceedings but none agreed. Car was checked and 38 carton boxes were found loaded. One quarter bottle was taken out as sample bottles from each box. Form -29 was fill in at the spot. All the carton boxes and sample bottles were sealed with the seal of VS. Seal after use was handed over to Constable Ravinder. Car and boxes were taken into possession vide Ex.PW1/A and Ex.PW1/B. IO recorded his statement Ex.PW1/C and prepared the rukka and over the same to Constable Ravinder for registration of FIR. Accordingly, he went to the police station and got the FIR registered. Thereafter, he came at the spot and handed over the same to IO.
He stated that the can identify the case property, if shown to him.
Page No.3 of 16State vs. Rajesh FIR No. 67/2018 Therefore, MHC (M) had produced two quarter bottles sealed with the seal of "PK". MHC (M) had also placed on record a copy of the order dated 15.05.2018 passed by Sh. Praveen Mishra, Deputy Commissioner (Excise) whereby the case properties i.e. Car and 1470 Nips of Asli Santra Masaledar Desi Sarab and 376 Nips of Episode Whisky for sale in Haryana have been directed to be disposed off/Mark A. PW2/Head Constable Harish Kumar was the Duty Officer. He proved the DD Entry DD No. 4-A and the registration of the FIR/Ex. PW2/A. PW/Constable Ravidner had accompanied the IO during investigation.
PW4/Head Constable Kulbir alongwith PW1 was patrolling in the area.
PW4/Head Constable Sanjay had deposited the sample bottles at Excise Laboratory, ITO.
PW5/Head Constable Praveen Kumar was the then MHC (M). He testified that on 11.02.2018, Head Constable Virender had handed over to him 30 patties each containing 50 quarter bottles of Asli santra and 8 patties each containing 48 quarter bottles of Episode Whisky sealed with the seal of VS. He further stated that IO had also deposited 30 quarter bottles of Asli Santra and 8 quarter bottles of episode Whisky. He made entry in Register No. 19 at Serial No. 1311/Ex.PW5/A. He further stated that on 03.04.2018, the bottles were sent to Excise Laboratory through Constable Sanjay. On 25.05.2018, he received the result from Excise Laboratory and handed over the same to Head Constable Virender.
PW6/Head Constable Virender Singh was the IO of the case.
Thereafter, PE was closed and statement of accused Rajesh under section 313 of the Code was recorded to afford him an opportunity to explain the incriminating Page No.4 of 16 State vs. Rajesh FIR No. 67/2018 circumstances appearing against him in evidence. He denied the allegations and pleaded false implication.
I have heard the rival submissions of the learned APP for State and learned defence counsel and perused the material on record very carefully.
Arguments It was argued on behalf of the State that prosecution has proved that 38 cartons having illicit liquor was recovered from the car of accused. He submitted that in view of section 52 of the Act, onus lies on the accused to rebut the presumption but he failed to rebut the presumption. He therefore, prayed that the accused may be convicted of the charge leveled against him.
Per contra, it was argued on behalf of the accused that a false case has been foisted against the accused and nothing was recovered from his car. He submitted that as per the version of the prosecution, the complainant, who is a Head Constable, along with another Head Constable was patrolling in the area when they apprehended the car with illicit liquor, however, the departure entry regarding the patrolling duty was not proved by the prosecution.
He further submitted that all the prosecution witnesses are interested witnesses and there is no independent corroboration to their statements.
In view of the above, he prayed that accused may be acquitted of the charge leveled against him.
Decision and brief reasons for the same Accused Rajesh is charged for the offence punishable under section 33/38 of the Act. Section 33 of the Act provides punishment for unlawful import, export, transport, possession, sale etc of any intoxicant. It reads as under:-
Page No.5 of 16State vs. Rajesh FIR No. 67/2018 Section 33 - Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act-
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or work; any manufactory or warehouse;
(c) bottles any liquor or purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than today or tan;
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees.
It was argued on behalf of the State that since the car of the accused was found in loaded with illicit liquor, the burden rests on him to dispel the statutory presumption raised under section 52 of the Act.
Per contra, it was argued on behalf of the accused that "presumption" can be invoked against the accused only if the prosecution successfully proves the "recovery" beyond reasonable doubt.
Page No.6 of 16State vs. Rajesh FIR No. 67/2018 Section 52 of the Act provides for presumption as to commission of offence in certain cases. It reads as under:-
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.
From a bare reading of section 52 of the Act, it is evident that presumption under section 52 could be drawn only if the factum of recovery is proved beyond reasonable doubt.
Now let us see whether the recovery of illicit liquor is proved by the prosecution beyond a reasonable doubt and whether the presumption of offence alleged to have been committed by the accused would arise in this case.
Non examination of the driver of the car Foremost contention of the learned counsel for the accused was that that as per prosecution, both the Head Constable were patrolling in a government vehicle which was there and then driven by one private driver namely Nishu; however, the said driver was not examined as a prosecution witness. Thus, according to the learned defence counsel, prejudice has been caused to the accused by non- examination of the driver of the government vehicle.
In criminal proceedings, it is the obligation of the prosecution to establish a case beyond reasonable doubt against the accused. Where the "narrative" of a given criminal act is not adequately set forth, elements of the offence might not be properly proven, and the prosecution risks losing its case.
Page No.7 of 16State vs. Rajesh FIR No. 67/2018 I am of the considered view that "essential to the . . . narrative" does not mean that all the persons who had witnessed the incident have to be called by the prosecution to prove its case.
In the case in hand, the testimony of the complainant was essential to the unfolding of the narrative and he has been examined by the prosecution as PW1. The driver of the government vehicle was not cites as a witness and thus he was not called as a prosecution witness. I am of the considered view that a witness who is not called at trial does not offer any evidence against an accused. Driver of the car was not the "accuser" in this case. The main witness (the accuser) was the complainant, who has been examined as PW1. The accused had an adequate opportunity to cross-examine him and the other prosecution witnesses. Thus, no prejudice was caused to the accused by non-examination of driver of the government vehicle.
In view of the above discussion, I find no merit in the submission of the learned defence counsel and thus, the same is rejected.
Departure Entry regarding patrolling in the area not proved As per prosecution, police officials were patrolling in the area when they apprehended the accused with illicit liquor.
At this stage, it would be advantageous to refer to clause (c) of Rule 22.49 Chapter 22 Punjab Police Rules, as applicable to NCT of Delhi, which reads as under:-
(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.Page No.8 of 16
State vs. Rajesh FIR No. 67/2018 From the reading of the above mentioned rule, it is evident that all the police officials irrespective of their rank are bound to record their arrival and departure entry at the time of leaving their office.
The Hon'ble Delhi High Court while dealing with a similar situation in the case of Rattan Lal vs. State 32 (1987) DLT 1=1987 (2) Crimes 29 observed as under:
"If the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach, their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive."
In the present case, though both the recovery witnesses have testified that they were patrolling in the area when they apprehended the accused with illicit liquor. However, no such DD entry is proved by the prosecution to establish that PW1/Head Constable Devender and PW4/Head Constable Kulvir were actually present in the area at the relevant time in connection with patrolling of the area.
In view of the above, I am of the considered view that the failure by the prosecution to bring on record the DD entries concerning the departure of the police official for patrolling duty casts a shadow of doubt on the genuineness of prosecution version regarding recovery of illicit liquor from the possession of the accused.
Log-book of LP-9 not produced during trial The prosecution witnesses have claimed to have been patrolling in LP-9. However, the log-book of the said Government vehicle was not produced during the course of trial.
Page No.9 of 16State vs. Rajesh FIR No. 67/2018 The Hon'ble High Court of Delhi in the case of Eze Val Okeke @ Val Eze Vs. Nar- cotic Control Bureau 116 (2005) DLT 399 observed that the absence of entries in the log book of the official vehicle used by the raiding party also cast a shadow of doubt on the prosecution case inasmuch as the log books are meant for recording of the movement of the vehicles and if no entries are found there, it becomes doubtful as to whether the vehicle was actually used or not as represented by the prosecution.
No independent witness was examined despite availability Further, no independent witness was examined by the prosecution despite availability.
It is settled proposition of law that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency then unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public person was not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in absence of the independent public witnesses.
In Ritesh Chakarvati vs. State 2006(4) RCR (Criminal) 480(SC), no effort was made to join an independent witness despite availability. The names of the persons from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held by the Hon'ble Supreme Court of India that the case of the prosecution was doubtful and ultimately, the accused was acquitted.
The principle of law, laid down in Ritesh Chakarvarti's case (supra) is fully applicable to the instant case.
Page No.10 of 16State vs. Rajesh FIR No. 67/2018 PW1/Head Constable Devender testified that he asked 3-4 public persons to join the proceedings but they refused.
Similarly, IO/PW6 also stated that "I requested public persons, who had gathered there, to join the proceedings, however, they refused to join the proceedings....". When IO was questioned if any written notice was served upon those public persons, he answered in negative.
As per prosecution, public persons were available at the alleged spot of recovery. Yet no witness from the public was associated with the recovery. Thus, failure to join witnesses from the public especially when they are available casts shadow of doubt on the prosecution case regarding recovery of illicit liqour from the possession of accused.
Inconsistencies/contradictions It is stated by the learned defence counsel that as per the prosecution version, seizure memos of the liquor and vehicle were prepared at the spot prior to registration of the FIR. However, these document bear number of the FIR. Prosecution has not offered any explanation under what circumstances number of the FIR has appeared on the top of these documents. Reliance may be placed on a judgment passed by the Hon'ble High Court of Delhi in the case of Pawan Kumar vs. the Delhi Administration 1989 Crl. L.J 127 wherein it was held as under:
"In the normal circumstances, the FIR number should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the FIR number which had already come into existence before the registration of the case. These are few of the Page No.11 of 16 State vs. Rajesh FIR No. 67/2018 circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
In rebuttal, it is stated by the learned APP for the State that IO during his examination-in-chief has stated that he mentioned the FIR number after registration of the FIR. He also drew the attention of court towards the testimony of IO/PW6.
Though, PW6/IO testified during his examination-in-chief that after registration of the FIR, he mentioned the number of FIR on the fard. However, during his cross- examination by the learned defence counsel he denied having made any alterations or additions in the documents which were prepared before sending the rukka. This makes him an unreliable witness. Reference may be made to a judgment passed by the Hon'ble Supreme Court of India in the case of Suraj Mal versus the State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it observed as under:-
"Where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
Case property not connected It was contended by the learned defence counsel that the case property i.e. the liquor bottles and the vehicle were never produced before the court for the purpose of identification.
He, therefore, prayed that an adverse inference should be drawn from the failure to produce the case property which was allegedly recovered from the possession of the accused.
Page No.12 of 16State vs. Rajesh FIR No. 67/2018 In reply, it is submitted by the learned APP for the State that entire case property could not be produced as the same has already been destroyed vide order Mark "X". He submitted that as directed by the Hon'ble Superior courts, samples bottles were produced during the course of trial and the said sample bottles were duly identified by the witnesses.
He also drew the attention of the court towards Mark "X" wherein it is stated that case property has been destroyed as per Rule 132(2) of Chapter -IX of Delhi Excise Rules, 2010. Relevant part reads as under:
"......be disposed off as per Rule 132(2) of Chapter -IX of Delhi Excise Rules, 2010. However, the photo of confiscated vehicle and samples of confiscated liquor are required to be preserved by the Investigating Officer and the SHO of the police station to meet the evidentiary requirements as provided under section 60 of the Delhi Excise Act, 2009..."
Section 60 of the Act provides for destruction of the intoxicants. It reads as under:-
60. Order of confiscation and destruction not to interfere with other punishment (1) The order of confiscation under section 58 shall not prevent imposition of any other punishment to which a person is liable under this Act.
(2) Notwithstanding anything contained in any other law for the time being in force, the disposal of confiscated goods in the manner, thereby non-production of case property before the trial court, shall not affect the conviction for an offence under this Act:
PROVIDED that the samples of the intoxicants and the photographs of the confiscated property may be preserved to meet the evidentiary requirements.
The Hon'ble High Court of Delhi in the case of Manjeet Singh vs. State while dealing with liquor and narcotic drugs, held as under Page No.13 of 16
State vs. Rajesh FIR No. 67/2018 "74. Prompt action should be taken in disposal of the liquor bottles/pouches and narcotic drugs after preparing a detailed panchnama containing an inventory; retaining a sample thereof; taking photographs of the entire lot of seized bottles/pouches/narcotic drugs and security bond. The sample shall be kept properly after sending it to the chemical analyst, if required.
75. The sample along with the photographs of the case property and the panchnama would be sufficient evidence at the stage of trial."
In the case in hand, neither the photographs of the entire lot of seized bottles nor the inventory as directed by the Hon'ble High Court of Delhi in the case of Manjeet Singh (supra) is placed on record. Though the MHC (M) had produced one photograph Mark "Y" along with the order Mark "X" during evidence, however, nothing can be deciphered from the photograph, which is of some kattas'.
Further, as per prosecution the car had tinted glasses. Tinted glass refers to any glass that has been treated with a material such as film or coating. However, the car, which is shown the photograph Ex.P-3, has window sunshades. The prosecution has not explained this contradiction which goes to the heart of the matter.
As per prosecution witnesses, 38 carton box were recovered from the vehicle. The said carton boxes were kept in 19 plastic kattas after taking out the samples. Those sample bottles and the kattas were sealed with the seal of "VS". However, the sample bottles which were produced during evidence in the court were found sealed with the seal of "PK".
How and when the seal got changed is a mystery shrouded with doubts which has not been explained by the prosecution.
Page No.14 of 16State vs. Rajesh FIR No. 67/2018 Discrepancy regarding quantity of bottles allegedly recovered from the possession of accused As per prosecution, 38 gatta patties were recovered from the car. Out of which, 30 patties (each) were found containing 50 quarter bottles make "Asli Santra" while each 8 gatta petti was found containing 48 quarter bottles of make "Episode Whisky". From each gatta petti, one bottle was taken out as "sample bottle".
Thus, as per prosecution 1500 quarter bottles of "Asli Santra" and 384 quarter bottles of "Episode whisky" were found loaded in the vehicle which belonged to the accused. Thus, total number of bottles recovered from the car were 1884, out of which, 38 bottles were separated as "sample bottles". As per PW5/Head Constable Praveen, "sample bottles" were sent to Excise Control Laboratory for examination on 03.04.2018. This fact finds corroboration from the report of Excise Laboratory wherein it is stated as under:-
"..Thirty Eight (38 sealed samples in one sealed plastic bag .................received in this office on 03.04.201".
Per contra, as per Mark "A", 1470 Nips of "Asli Santra" and 376 Nips of "Episode Whisky" were confiscated by the Deputy Commissioner (Excise) vide order dated 15.05.2018.
Thus, out of total recovered bottles which were 1884, 1846 bottles were directed to be disposed of vide order Mark "A", 38 bottles were consumed by the Excise Control Laboratory while two quarter bottles, make Asli Santra and Episode whisky, were produced before the court during evidence. If we add all these bottles, then the total comes to 1886 (1470+376+38+2) whereas recovered bottles were 1884. This gives rise to presumption that the two (2) samples bottles produced during evidence in the court were not the part of the bottles which were allegedly Page No.15 of 16 State vs. Rajesh FIR No. 67/2018 recovered from the possession of accused, which creates doubts about the veracity of the State's case.
All these facts taken together create doubt on the entire warp and woof of the prosecution story regarding recovery of illicit liquor from the possession of accused.
Result On overall appreciation of the oral and documentary evidence on record, I am of the view that the recovery of alleged liquor from the car is not proved beyond reasonable doubt; therefore, there is no presumption under section 52 of the Act.
Consequently, accused RAJESH is ACQUITTED of the crime charged.
File be consigned to record room after due compliance.
Announced in open Court on 4th day of December, 2019 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/04.12.2019 This judgment contains 16 pages and each page bears my signature.
Digitally signed by BABITABABITA PUNIYA Date: PUNIYA 2019.12.05 17:32:10 +0530 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/04.12.2019 Page No.16 of 16