Delhi District Court
State vs . Kamlesh Devi on 18 July, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE 08, SOUTH WEST, NEW
DELHI
(Presided Over by SH. ANIMESH KUMAR)
Cr. Case/2965/2022
STATE VS. Kamlesh Devi
FIR NO: 439/2021
P. S Uttam Nagar
U/s 33 Delhi Excise Act
JUDGMENT
Date of its institution : 11.03.2022
Name of the complainant : Ct Kartara Ram,No.808/DW,
PS Uttam Nagar
Date of Commission of offence : 11.06.2021
Name of the accused : Kamlesh Devi
w/o late Sh. Dhanraj
R/o -B 16, JJ colony,
Hastsal, Uttam Nagar, ND.
Offence complained of : 33 Delhi Excise Act
Plea of accused : Not Guilty
Case reserved for orders : 11.07.2023
Final Order : Acquittal
Date of orders : 18.07.2023
FIR no. 439/2021 State Vs. Kamlesh Devi 1/11
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. This is the prosecution of the accused namely Kamlesh Devi upon a charge sheet filed by the police station Uttam Nagar under section 33 Delhi Excise Act.
2. Briefly stated, as per the case of prosecution, Ct. Kartara Ram was on patrolling duty on 11.06.2021 at beat no. 1. During the patrolling, when he reched in front of B-55, J J Colony, Hastsal, Uttam Nagar, he saw the accused carrying a white plastic bag on her shoulder. When the accused saw the police official, she tried to run away. However, Ct. Kartara Ram apprehended her and conducted her personal search wherein illicit liquor was found inside the plastic bag. Information was given to the PS regarding this recovery vide DD No. 96A dated 11.06.2021. Thereafter, IO ASI Arogyam along with W/Ct. Priyanka reached at the spot and completed the necessary codal formalities and investigation.
3. After completing the formalities, investigation was carried out by PS Uttam Nagar and a charge sheet was filed against the accused. The charge was framed against the accused u/s 33 Delhi Excise Act, to which she pleaded not guilty and claimed trial.
4. In order to substantiate its case, prosecution has examined three witnesses. PW1 ASI Arogyam deposed that on 11.06.2021, he had received the information about the present incident vide DD No. 96A. After receiving the information, he along with W/Ct Priyanka reached at the spot where he met Ct. Kartara Ram who had apprehended the accused. Ct. Kartara Ram handed over the custody of accused and the case property to him which was recovered from the possession of the accused. Thereafter, he recorded the statement of Ct. Kartara Ram which is Ex. PW1/A on the basis of which he had prepared the tehrir Ex. PW1/B and sent Ct. Kartara Ram to the PS FIR no. 439/2021 State Vs. Kamlesh Devi 2/11 for registration of FIR. After getting the FIR registered, Ct. Kartara Ram came back at the spot and handed over the copy of FIR to the PW1. After receiving the copy of FIR, PW1 started the investigation in the present case. He opened the said white plastic bag and found 105 quarter bottles of illicit liquor. He took out two bottles as sample and sealed both the sample and remaining case property with the seal of KC and handed over the seal of Ct. Kartara Ram after use. PW1 further deposed that he tried to join the public persons in the investigation, however, they all refused to join. He was duly cross-exmained by Ld. Counsel for the accused
5. Thereafter, PW1 seized the illicit liquor recovered from the possession of the accused vide seizure memo Ex. PW1/C, prepared site plan at the instance of Ct. Kartara Ram Ex. PW1/E and also filled Form 29. He had also bound down the accused after issuing notice u/s 41A Cr.P.C to him. PW1 correctly identified the accused and case property during the trial.
6. PW2 was the complainant of the present case. During his examination-in- chief, he had deposed on the similar lines as that of IO. He deposed that on 11.06.2021, he was on patrolling duty in beat no. 1. During patrolling when he reached in front of B-55, JJ Colony, Hastsal, Uttam Nagar, he saw the accused carrying a white plastic bag on her shoulder. After seeing him, she started to run away. However, PW1 chased and stopped her. When he opened her plastic bag, illicit liquor was found. Thereafter, information was given to the PS. After some time, IO PW1 and W/Ct. Priyanaka reached at the spot. He was duly cross-exmained by Ld. Counsel for the accused.
7. PW3 was the 2nd IO of the present case. He deposed that on 12.10.2021, the present case was handed over to him for further investigation. He got the chemical examination of the sample seized in the present case and prepared the charge-sheet.
FIR no. 439/2021 State Vs. Kamlesh Devi 3/11
8. Accused admitted the genuineness of factum of registration of FIR, certificate u/s 65B Indian Evidence Act, chemical examination report and DD No. 86A and 96A dated 11.06.2021 U/s 294 of the Criminal Procedure Code, 1973 (herein after referred as Cr.P.C).
9. Statement of the accused was recorded U/s 281 of Code wherein all the incriminating circumstances were put to her which she denied and pleaded her false implication and also false plantation of the case property. She, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
10. I have heard the Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached by the accused.
11. Per contra, Ld. Counsel for the accused submitted that no public witnesses were examined in the present case regarding recovery of illicit liquor, no photographs of recovered case property were produced on record by the prosecution and no CCTV footage of the recovery was filed. He further submitted that the accused has been falsely implicated in the present case and the case property has also been planted against the accused.
12. In order sustain conviction u/s 33 Delhi Excise Act, the prosecution is required to prove the following ingredients:
The accused was found in the possession of the illicit liquor; and He was possessing the same without any license/permit.
13. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution FIR no. 439/2021 State Vs. Kamlesh Devi 4/11 is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
14. However, sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the accused 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. Relevant extract of the said provision is reproduced below:
"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.
(2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence."
15. But this presumption is rebuttable and accused can rebut the same by either referring to the prosecution's evidence or by adducing defence evidence. Also, it should be noted that the words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution FIR no. 439/2021 State Vs. Kamlesh Devi 5/11 has proved the possession of the alleged articles by the accused that the accused can be called upon to account for the same.
16. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case. Hence, he deserves to be acquitted.
Non-examination of independent public witnesses
17. During the final arguments, Ld. Counsel for the accused submitted that the prosecution did not examine even a single public witness to prove the recovery of illicit liquor from the possession. Both the recovery witnesses were police officials.
18. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
19. From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi FIR no. 439/2021 State Vs. Kamlesh Devi 6/11 High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
20. In the instant case, as per the testimonies of PWs and also from the perusal of site place Ex. PW1/E, the alleged recovery was made from a market area i.e. Ashok Mare, JJ Colony which is also a dense residential at around 5:30 PM which is peak hour. Therefore, it cannot be said that no public person would have been available at the spot. Although prosecution witnesses have asserted that they implored some of the public witnesses to join the investigation but they refused to participate in the investigation. This explanation tendered by the prosecution witnesses does not seem to be tenable as neither the details of those public persons have been brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them.
21. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"It is repeatedly laid down by this Court that 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 evident that no such sincere efforts have been made, particularly when we find that shops FIR no. 439/2021 State Vs. Kamlesh Devi 7/11 were open and one or two shop keepers 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."
22. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of FIR no. 439/2021 State Vs. Kamlesh Devi 8/11 a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
23. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
24. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
25. As discussed in the preceding paragraphs of this judgment, IO did not even make any endeavor to join the public witnesses. Also, there are certain material contradictions in the testimonies of PWs which would make them unreliable. As per the FIR registered in the present case, the offence had occurred at 5:30 PM on 11.06.2021. Information about the incident was received at the PS at 6:52 PM on 11.06.2021. However, interestingly, the FIR no. 439/2021 State Vs. Kamlesh Devi 9/11 IO and W/Ct Priyanka had departed for the spot at around 6 PM vide DD No. 96A. It is very difficult to understand as to how these police officials could depart from the PS before the time of receipt of information. It would mean that either the information provided in DD No. 96A is incorrect or details mentioned in the FIR are incorrect. This would weaken the case of prosecution and would make the PWs unreliable.
26. Since all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that chances of false implication of accused under the provisions of Excise Act cannot be ruled out at the instance of the police.
Possibility of misuse of seal of the investigating officer
27. As per the testimonies of PWs, the sample of liquor and case property were sealed by the PW-1 IO ASI Arogyam with the seal of "AC" and after use the seal was handed over to Ct. Kartara Ram. It should be noted that handing over memo of the seal was not duly proved on record. Also, prosecution did not file any document on record to show that the said seal was eventually deposited by Ct. Kartara Ram in malkhana. It is further not clear as to whether the seal was directly handed over to the IO by Ct. Kartara Ram or was rather handed over to any independent public person. Similarly, the seal after use was directly handed over by the IO to Ct. Kartara Ram who himself was the police official and was not given to any independent person.
28. In the judgment titled Ramji Singh vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab & Haryana High Court while discussing the purpose of giving seal to independent person has held the following:
"The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is FIR no. 439/2021 State Vs. Kamlesh Devi 10/11 well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
29. Therefore, in view of the above, this creates further doubts in the case of prosecution as to whether the case property allegedly recovered from the accused has not been tampered with.
30. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution's case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. As such the accused deserves acquittal in the present case.
31. Therefore, in view of the above discussions and findings, the accused Kamlesh Devi is acquitted for the offence u/s 33 of Delhi Excise Act.
32. Let a copy of this judgment be given to the accused.
Announced in the open court (ANIMESH KUMAR)
on 18.07.2023 Metropolitan Magistrate-08,
South West, New Delhi
It is certified that this judgment contains 11 pages and each page bears my signatures.
(ANIMESH KUMAR)
Metropolitan Magistrate-08,
South West, New Delhi
18.07.2023
FIR no. 439/2021 State Vs. Kamlesh Devi 11/11