Delhi District Court
State vs . Dinesh Kumar on 19 May, 2023
IN THE COURT OF SH. JITENDER: METROPOITAN
MAGISTRATE01 : NORTH : ROHINI COURTS : DELHI.
STATE VS. DINESH KUMAR
FIR Number : 10/2014.
Under Section : 33 Delhi Excise Act.
Police Station : Bh. Dairy
JUDGMENT
a) Registration no. of case : 5286014/2016
b) Name & address of the : HC Bijender
complainant No. 841/NW
PS Bh Dairy, Delhi
c) Name & address of : Dinesh Kumar
accused S/o Sh. Om Prakash
R/o VPO Bhandari, PS
Malloda, Distt. Panipat,
Haryana
d) Date of Commission of : 04.01.2014
offence
e) Offence complained of : 33 DEA
f) Plea of the accused : Pleaded not guilty.
FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 1 of 16
g) Final Order : ACQUITTED
Date of Institution : 06.05.2014
Judgment Pronounced on : 19.05.2023
JUDGMENT
Brief facts:
1. The case of the prosecution is that on 04/01/2014 at about 03:35 PM at Pusta Road, gali no. 04 Nukkar, Swaroop Nagar Extention, Delhi, (hereinafter the "spot" or "place of incident") the accused was found in possession of illicit liquor in a Tata Sumo no. HR 31B 4704, i.e. 32 petties of illicit liquor, each petti containing 12 bottles (750 ml each) of Raseela Santra Desi Masaledar Sharab for sale in Haryana only an 10 petties of Angreji Sharab, each petti containing 48 quarter bottles (180 ml each) of Besto Whiskey for sale in Chandigarh only without any permit or licence in contravention of Delhi Excise Act. The present FIR no. 10/2014 was registered u/s. 33 of Delhi Excise Act.
2. On the basis of investigation carried out by the police the chargesheet under section 173 Cr.P.C. was filed in the court on 06/05/2014 and the copy of chargesheet and other relevant documents were supplied to the accused in compliance of section 207 of the Cr.P.C.
FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 2 of 163. On the basis of charge sheet, charge for committing of offence punishable under section 33 of Delhi Excise Act was framed upon the accused on 07/10/2014 to which he pleaded not guilty and claimed trial.
Prosecution Evidence
4. The prosecution has examined as many as 05 witnesses to prove its case. PW3 HC Bijender was the Complainant/ 1st IO in the case. All the witnesses have been duly examined and cross examined.
5. Prosecution evidence was closed on 15/11/2022 and matter was fixed for recording of statement of accused U/S 313 Cr.P.C and same was recorded on 17/03/2023.
Statement of accused
6. All the incriminating evidence and facts were put before the accused wherein he denied all such evidence against him and pleaded that I am innocent and falsely implicated in the present case. All witnesses are interested witnesses and he further alleged that the case property was planted upon him but chose not to lead any defense evidence paving the way for final argument.
FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 3 of 16Issue to be decided
7. Before proceeding further, as per mandate laid down under section 354 (1)(b) Cr.P.C. the point of determination which is necessary to consider in order to arrive at a conclusion whether the accused has committed the offence for having in her possession illicit liquor without a permit or license in contravention of section 33 Delhi Excise Act?
Court's observation
8. Let us peruse the provision of section 33 Delhi Excise act, which is as under:
Section 33: penalty for unlawful import, export, transfer, manufacture, possession, sale, etc. Whoever, in contravention of the provisions 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, import, export, transport or remove any intoxicant
(b) constructs or work any manufactory or warehouse
(c) bottles and liquor for 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 todi or tari
(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, collect, possesses or buys any intoxicant beyond the prescribed quantity, FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 4 of 16 shall be punishable with imprisonment for a term which shall not be less than 6 months but which may extend to 3 years and with fine which shall not be less than ₹ 50,000 but which may extend to one lakh rupees.
FINDINGS
9. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
(i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution.
Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
Absence of Public Witnesses
10. The case of the prosecution is that on 04/01/2014 at about 03:35 PM at Pusta Road, gali no. 04 Nukkar, Swaroop Nagar Extention, Delhi, the accused was found in possession of illicit liquor FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 5 of 16 in a Tata Sumo no. HR 31B 4704, i.e. 32 petties of illicit liquor, each petti containing 12 bottles (750 ml each) of Raseela Santra Desi Masaledar Sharab for sale in Haryana only an 10 petties of Angreji Sharab, each petti containing 48 quarter bottles (180 ml each) of Besto Whiskey for sale in Chandigarh only without any permit or licence in contravention of Delhi Excise Act. The spot of the recovery and apprehension of the accused are thus clearly located in an area where in all likelihood, public persons would be easily available/present or at least would be passing by. Despite so, no public person has been cited as a witness in the list of witnesses nor examined by the prosecution in support of its case. It is not the case of the prosecution that no public person was present at the spot at the time of arrest or recovery. In fact, the witnesses have clearly deposed that public persons were present at the time and place in question and that the place was a densely populated area.
11. In his evidence, PW3 stated that, "I requested 45 public persons to join the investigation but none of them agreed and left away by telling their personal problem". PW3 further deposed in his cross examination that, "I did not serve notice upon the person who refused to join the investigation. This fact was also affirmed by the PW1 and PW5. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 6 of 16 police. Section 100 (4) of the CrPC 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 lapse on the part of prosecution casts serious doubt as to whether any sincere efforts were made by the prosecution to join public witnesses in the proceedings. It has been held by the Hon'ble Delhi High Court in case titled as "Anoop Joshi Vs. State"1992(2)C.C.Cases314(HC), that:
"18. 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 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".
Further in "Roop Chand Vs. The State of Haryana"
1999(1) C.L.R.69,the Punjab & Haryana High Court held as under:
"3. 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 from the FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 7 of 16 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 so on the ground that their joining will result into enmity between them and the petitioner".
"4. 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 investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining 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".
Similarly, in "Nanak Chand Vs. State of Delhi"
reported as DHC 1992 CRI LJ 55 , it is observed as under:
that the recovery is proved by three police officials who FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 8 of 16 have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court of India held as under :
"It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
12. Although, there is no impediment in believing the version FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 9 of 16 of prosecution which is based solely on the testimony of the police officials, but for that the prosecution is first required to lay a very strong foundation to rule out the possibility of "conflict of interest". Present is the case where no sincere efforts were taken by the police officials to join any public person/ independent witness in the case. No plausible explanation has been advanced by the prosecution for nonjoining such witnesses which creates doubt over the story of the prosecution.
Site Plan and Faulty Investigation
13. The site plan is a vital part of the investigation and that it should give a clear description of the spot to which it belongs. Site plan is not a mere formality, but, it is an essential feature in order to reach the firm conclusion by the court in order to ascertain whether the offence has been committed by the accused or not. The site plan must disclose the relevant thing and it must corelate/corroborate with other evidence and the testimonies of the witnesses. In the present case PW3 IO/ASI Bijender stated that, "IO prepared the site plan at my instance". Perusal of the site plan unveil that this vital piece of evidence was not signed by the PW3 HC Bijender at whose instance same was prepared or by any other public persons. As a general principle, it can be stated that error, illegality or defect in investigation cannot have any impact unless miscarriage of justice FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 10 of 16 is brought about or serious prejudice is caused to the accused. (Union of India vs. Prakash P. Hinduja AIR 2003 SC 2612). If the prosecution case is established by the evidence adduced, any failure or omission on the part of the I.O cannot render the case of the prosecution doubtful. (Amar Singh vs. Balwinder Singh, AIR 2003 SC 1164, Sambu Das vs. State of Assam AIR 2010 SC 3300). If direct evidence is credible, failure, defect or negligence in investigation cannot adversely affect the prosecution case, though the court should be circumspect in evaluating the evidence (Ram Bihari Yadav vs. State of Bihar AIR 1998 SC 1850, Paras Yadav vs. State of Bihar AIR 1999 SC 644, Dhanraj Singh vs. State of Punjab AIR 2004 SC 1920, Ram Bali vs. State of U.P. AIR 2004 SC 2329).
14. As far as the defective and illegal investigation is concerned, Apex Court held that If investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of the impact of the faulty investigation; otherwise criminal trial will descend to the I.O ruling the roost. Yet if the court is convinced that the evidence of eyewitnesses is true, it is free to act upon such evidence though the role of the I.O in the case is suspicious. (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 11 of 16 the hands of the I.O whose investigation was defective by design. (Dhanaj Singh vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial. (Paramjit Singh vs. State of Punjab AIR 2008 SC 441).
The fact that the site plan was not signed by any witness is lapse on the part of the investigating agency. However, not bearing the sign of the witness cast a shadow of doubt that upon the manner in which the investigation was carried by the police and also, whether the site plan was actually prepared by the IO at the time of incident or it was made later on only for the purpose to fill the lacuna in the case of prosecution. This court concurred with the above cited judgment and arrived at the conclusion that benefit of lapses in the investigation cannot caste any doubt upon the case of the prosecution unless it cause the miscarriage of justice. Form the above reasoning, this court finds that, the site plan is a very important piece of evidence and it must bear the sign of the witness, especially when the IO had admitted that it was made on the instance of the complainant. In the absence of signature of witness, credibility of site plan cannot be substantiated.
Departure entry
15. Another material thing which is required to be discussed about the case of prosecution is the departure and arrival entry FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 12 of 16 maintain by the police officer. As per the Punjab Police Rule, it is mandatory for every police officer to make his departure and arrival entry in DD register of the PS. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that 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 shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, complete departure or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on "Rattan Lal Vs. State 1987 (2) Crimes 29".
Handing over memo of seal
16. It has come into the testimony of PW1 that, "seal was handed over to me". However, non preparing of handing over cast a shadow of doubt upon the manner in which the investigation carried out by the investigating agency. Reliance is placed on "Ramji Singh V/s State of Haryana" 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that:
"7. The very purpose of giving seal to an independent FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 13 of 16 person is to avoid tampering of the case property. It is 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".
24. Similarly, Hon'ble Delhi High Court in "Safiullah v. State", 1993 (1) RCR (Criminal) 622, held that "10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
17. All the lapses in investigation create doubt on the very recovery of case property from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the recovery of the case property from the possession of the accused beyond reasonable doubt.
Circumstantial evidence
18. Circumstantial evidence is the most important aspect to decide the liability of the accused in any criminal trial. Circumstantial evidence is indirect evidence that does not, on its face, prove a fact in issue but gives rise to a logical inference that the FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 14 of 16 fact exists. Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim. When no other conclusive evidence is present to establish the liability of the accused, the prosecution shall rely upon the circumstantial evidence corroborating with other evidence. However, the circumstantial evidence must be of conclusive tendency and must create a chain of event or evidence which only pointed towards the guilt of the accused and left no other probability in favor of accused.
In Sharad Birdhi chand Sarda v. State of Maharashtra (1984) 4 SCC 116 153, the Apex court has observed about the circumstantial evidence that:
"(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be established':
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty:
(iii)The circumstances should be of a conclusive nature and tendency:
(iv)They should exclude every possible hypothesis except the one to be proved and;
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probably the act must have been done by the accused".FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 15 of 16
CONCLUSION
19. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. For the reasons stated in aforesaid paragraphs, there are various loopholes in the case of the prosecution and the circumstantial evidence in this case is not of conclusive in nature and tendency which shows the guilt of the accused and create a complete chain towards the guilt of the accused, for which benefit of doubt ought to be granted to the accused. Accordingly, accused Dinesh is hereby acquitted for the offence punishable under Section 33 of the Delhi Excise Act. Case property be confiscated to State as per rules.
Dictated & Announced in Open Court.
(Jitender) MM01/North/Rohini/Delhi 19.05.2023 FIR No. 10/2014 PS Bh. Dairy State Vs. Dinesh Kumar Page 16 of 16