Delhi District Court
Hal +05'30' vs . on 28 November, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-06,
SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided over by- Sh. Ankur Panghal, DJS
Cr. Case No. -: 3526/2017
CNR No. -: DLSH020088642017
FIR No. -: 261/2017
Police Station -: MS Park
Section(s) -: 33 Delhi Excise Act & 174A IPC
In the matter of -
STATE
VS.
SONU @ AMIT
S/o Raj Kumar,
R/o B-16, Kardam Farm,
Joharipur,
Delhi.
.... Accused
1. Name of Complainant :- Ct. Jhabar Mal
2. Name of Accused :- Sonu @ Amit
3. Offence complained of or :- 33 Delhi Excise
proved
Act & 174A IPC
4. Plea of accused :- Not Guilty
5. Date of Commission of offence :- 11.08.2017 &
07.11.2022
6. Date of Filing of case :- 23.10.2017
7. Date of Reserving Order :- 28.11.2022
8. Date of Pronouncement :- 28.11.2022
9. Final Order :- Acquitted
Argued by -: Sh. Pramod Kumar , Ld. APP for
the State.
Ms. Neeti Sharma, Ld. LAC for ANKUR Digitally signed
by ANKUR
the accused. PANGH PANGHAL
Date: 2022.11.28
AL 21:31:18 +05'30'
Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 1 of 21
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX
1. Briefly stated, the case of the prosecution against the accused is that on 11.08.2017 Ct. Jhabar Mal was on patrolling duty. During patrolling, at about 9 PM he reached MCD Pump, Railway line Shahdara, Takya Gullu Shah, Shri Ram Nagar, Shahdara, Delhi, he saw a young boy heading towards MCD pump from Railway line Shahdara with one white plastic katta on his right shoulder. On seeing the complainant, he started turning around and the complainant got suspicious. Complainant apprehended the accused after taking 20-25 fast steps. On checking the katta 52 nips (180 ml each) each of illicit liquor of make ADS Haryana Excise ADS Spirits Pvt. Ltd. BHUTIYAN for sale in Haryana only on which Asli Santra Masaledar Desi Sharab was mentioned, were recovered from the possession of accused without any license or permit for the same. Accused was arrested. Site plan was prepared. Case property was deposited in the Malkhana and sample was deposited in Excise Lab. As such, it is alleged that the accused committed the offence under section 33 of the Delhi Excise Act, 2009 (hereinafter, "Excise Act"), for which FIR No. 261/2017 was registered at Police Station M.S.Park, Delhi.
INVESTIGAION AND APPEARANCE OF ACCUSED
2. After registration of FIR, the investigating officer ANKU (hereinafter 'IO') conducted investigation and on culmination of R Digitally signed by ANKUR PANGHAL the same, chargesheet against the present accused was filed. After PANG Date: 2022.11.28 21:31:42 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 2 of 21 HAL taking cognizance of the offence, the accused person was summoned to face trial. The accused appeared in court and he was supplied the copies of documents relied upon in the charge sheet in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC").
3. On a finding a prima facie case against the accused, a charge was framed for the offences punishable U/s 33 of Delhi Excise Act against the accused Sonu @ Amit. The accused pleaded not guilty and claimed trial. Further, on account of non- appearance of accused during the trial, warrants were issued against accused Sonu @ Amit. Pursuant thereto, he was declared as an absconder after issuing proclamation in terms of section 82 CrPC. After his apprehension, additional charge under section 174A IPC was framed against the accused Sonu @ Amit. He pleaded not guilty to the said charged and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 :- HC Mahesh Pal (MHCM) PW2 :- Ct. Shakeel Ahmed (Deposit witness of sample to Excise Office) PW3 :- ASI Dharambir (Investigating Officer) PW4 :- ASI Sheesh Pal (Duty Officer) PW5 :- HC Jhabar Mal (Complainant) PW6 :- HC Nizamuddin (Process Server) PW7 :- HC Amit (arrested accused) PW8 :- HC Anil (arrest witness) ANKUR Digitally signed by ANKUR PANGHAL PANGHAL Date: 2022.11.28 21:31:59 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 3 of 21 DOCUMENTARY EVIDENCE Ex. PW3/A :- Seizure Memo of illicit liquor Ex. PW3/B :- Statement of Complainant Ex. PW3/C :- Rukka Ex. PW3/D :- Site Plan Ex. PW3/E :- Arrest Memo of accused Ex. PW3/F :- Search Memo of accused Ex. PW3/G :- Form M-29 Ex. PW3/H :- Disclosure statement of accused Ex. P1 & P2 :- Photographs of case property (Colly) Mark A :- Order no. 7567-68 dated 28.12.2018 of destruction of confiscated and seized stock of liquor Mark B :- Certificate pertaining to Order no.
7567-68 dated 28.12.2018 of destruction of confiscated and seized stock of liquor Ex. PW4/A :- FIR no. 261/17 PS M.S.Park Ex. PW5/A :- Statement of complainant Ex. PW6/A :- Repot of process server Ex. PW6/B :- Statement of Mevawati (mother of accused) Ex. PW7/A :- Arrest memo of accused Ex. PW7/B :- Personal search memo of accused Ex. PW7/C :- Kalandra u/s 41(1)(c) CrPC ADMITTED DOCUMENTS (under S. 294 CrPC) Ex. A1 :- Result of analysis by chemical examiner< Ex. Control Lab
5. HC Mahesh Pal (PW-1) in his examination in chief stated on oath that on 12.09.2017, he was posted at PS MS Park as HC and on the said day, he handed over the sample bottles to Ct. Shakeel on the direction of IO/ASI Dharambir vide RC No. ANKUR Digitally signed by ANKUR PANGHA PANGHAL 35/21/17. He further deposed that till the time sample bottles L Date: 2022.11.28 21:32:18 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 4 of 21 were in his possession no kind of tampering was done with the same.
5.1. PW-1 was not cross-examined by the accused person despite giving an opportunity.
6. ASI Dharambir (PW-3) is the IO, who stated on oath that on 11.08.2017 he was posted at PS MS Park and after receipt of information, he went to the spot and met Ct. Jhabar Mal and the accused Sonu @ Amit along with illicit liquor. The case property i.e., one plastic katta was handed over to him by Ct. Jhabar Mal. On checking the same, 52 quarter bottles brand of Asli Desi Santra Masaledar Desi Sharab were there. Six (6) quarter bottles were removed as sample from the plastic katta having serial number S-1 to S-6. Remaining case property was put back into the same plastic katta Seal with the seal of DBS. Thereafter, he recorded statement of Ct. Jhabar Mal which is Ex. PW-3/B bearing his signature at point A. He seized the illicit liquor with the seal of DBS vide seizure memo Ex.PW-3/A bearing his signatures at point A. Rukka was prepared, which is Ex.PW-3/C, bearing his signature is at point A. He handed over the rukka to Ct. Jhabar Mal for registration of FIR. After registration of FIR, Ct. Jhabar Mal came back at the spot along with the copy of FIR and original rukka which was handed over to PW-3. Site plan was prepared at the instance of the complainant which is Ex.PW-3/D. Thereafter, accused was arrested and personally searched vide Memos. Ex.PW-3/E and Ex.PW-3/F respectively. Form M-29 was filled up at the spot which is Ex.PW-3/G. Disclosure statement of accused was recorded which is Ex.PW-3/H. The witness has identified the ANKUR Digitally signed by ANKUR case property i.e., quarter bottles of illicit liquor of Asli Santra PANGH PANGHAL Date: 2022.11.28 AL 21:32:36 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 5 of 21 Masaledar Desi Sharab in photographs Ex.P1 and Ex.P2 (colly) together with the order of confiscation no. 7567-68 dated 28.12.2018 passed by the competent authority Mark A together with certificate Mark B. 6.1. In cross-examination, ASI Dharambir (PW-
3) stated that he reached on the spot and about 9:30 PM on 11.08.2017 and rukka was prepared by him at about 11:10 PM. Ct. Jhabar Mal was sent with rukka to the PS at about 11:10 PM and he came back from the PS at about 11:40 PM. He denied the suggestion that he has not prepared any document. He further deposed that accused was arrested at about 11:50 PM and he does not remember as to whom information of arrest of accused was given. He further deposed that he left the spot at 11:55 PM. He further deposed that he has received his seal DBS after 4-5 days. He denied the suggestion that he has not done any writing work on the spot and accused was falsely implicated in the present matter he also denied the suggestion that all writing work was done in the police station and nothing was recovered from possession of accused.
7. HC Jhabarmal (PW5) is the complainant, who stated on oath that on 11.08.2017 he was posted as constable in PS MS Park and was deputed on beat patrolling duty. On that day, while patrolling at about 9 PM, he reached at MCD pump, near railway line Shahdara and saw that one person having a plastic bag (katta) was crossing railway line and coming towards MCD pump who tried to run away after seeing him. PW5 apprehended the accused Sonu @ Amit and accused was ANKUR Digitally signed by ANKUR correctly identified by the witness in the court. Accused Sonu @ PANG PANGHAL Date: 2022.11.28 HAL 21:32:53 +05'30' Amit was having a plastic katta in which 52 quarter bottles of Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 6 of 21 illicit liquor made of Santa Masaledar Desi Sharab for sale in Haryana only were found. He telephonically informed the police station and asked for sending an IO for investigation. After some time, ASI Dharambir came at the spot and he handed over the accused along with case property to ASI Dharambir. His statement was recorded by the IO which is Ex.PW5/A. IO prepared rukka and handed over the same to him. He went to police station for registration of FIR and handed over the copy of FIR and original rukka to the IO. Case property was sealed by IO with the seal of DBS. Site plan was prepared by IO and accused was arrested and was personally searched. Thereafter, disclosure statement of the accused was recorded. The witness has identified the case property from photographs which are already Ex.P1 & Ex.P2 (colly).
7.1. In cross-examination, HC Jhabarmal (PW-
5) submitted that he did not make any DD entry while going for patrolling duty. He admitted the fact that place of recovery is surrounded by jhuggies. He submitted that he conveyed the information to police station from his own mobile phone and IO handed over rukka to him at about 11 PM and he reached police station at about 11:20 PM and returned back at the spot alongwith FIR at about 11:45 PM. He further submitted that IO did not give any notice to any person nor recorded their names and addresses. He admitted the fact that there was no light at the place of incident and thereafter submitted that there was a high street light installed by railway at a distance of about 400-500 metres. He denied the suggestion that IO has already prepared the documents and has mentioned only FIR number on those documents. He further submitted that IO prepared all the ANKU Digitally signed by documents in his presence and outside the MCD pump which is R ANKUR PANGHAL Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 7 of 21 PANG Date:
2022.11.28 21:33:09 HAL +05'30' at about 10-20 metres away from the place of incident. He further deposed that no witness was called from MCD pump by the IO in his presence. He further deposed that he does not remember who was given information about the arrest of accused and he had returned the seal by which case property was sealed by the IO on reaching the police station. He further deposed that no memo was prepared for handing over the seal to IO. He denied the suggestion that accused has been falsely implicated in the present case and case property was falsely planted upon the accused or that he is deposing falsely.
8. HC Nizamuddin (PW 6) is the process server who served the process under section 82 CrPC. He stated on oath that he was entrusted with the process under section 82 CrPC and on 23.03.2022, he went to the house of accused and met his mother namely Mevawati, who told him that accused Sonu @ Amit is not residing with her and she does not know whereabouts of the accused. He recorded statement of mother of the accused. He thereafter affixed copy of process outside the house of accused and collected nearby persons and read over the contents of process in loud voice. He pasted copy of process on noticeboard of court premises and prepared report in this regard which is Ex. PW6/A bearing his signature at point A. Statement of Mevawati is Ex. PW6/B bearing his signature at point A. 8.1. In cross-examination, HC Nizamuddin (PW6) deposed that he does not remember the exact time when he reached the house of the accused, however he submitted that it was known time. He further deposed that he collected 10-15 persons and he does not remember the name of the persons. He ANKUR denied the suggestion that he is deposing falsely. PANGHAL Digitally signed by ANKUR PANGHAL Date: 2022.11.28 Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 8 of 21 21:33:24 +05'30'
9. Rest of the prosecution witnesses supported the case of the prosecution. They have proved the documents mentioned in the table above.
STATEMENT OF ACCUSED
10. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of accused was recorded without oath on 04.03.2022 under section 313 CrPC in which he stated that he has been falsely implicated in the present case and stated that he does not want to lead any defence evidence and matter was listed for final arguments on 05.03.2022.
10.1. On account of non-appearance of accused during the trial, warrants were issued against accused Sonu @ Amit. Pursuant thereto, he was declared as an absconder after issuing proclamation in terms of section 82 CrPC. After his apprehension, additional charge under section 174A IPC was framed against the accused Sonu @ Amit. With respect to the additional charge under section 174A IPC, the statement of accused was recorded without oath on 28.11.2022 under section 281 read with section 313 CrPC. He stated that he is innocent and has been falsely implicated in the present case. He stated that he does not want to lead any defence evidence. ARGUMENTS
11. I have heard the Ld. APP for the state and Ld. counsel for the accused at length. I have also given my thoughtful consideration of the material appearing on record.
ANKUR
12. It is argued by the Ld. APP for the state that all the PANGHAL Digitally signed by ingredients of the offence are fulfilled in the present case. The ANKUR PANGHAL Date: 2022.11.28 Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 9 of 21 21:33:41 +05'30' recovery of illicit liquor stands proved from the ocular as well as documentary evidence. He has argued that oral as well as documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that accused be punished for the said offence.
13. Per contra, Ld. counsel for the accused has argued that the state has failed to establish its case beyond reasonable doubt. Ld. counsel submits that the accused has been falsely implicated by the police and nothing was recovered from the possession of the accused. Ld. Counsel has further submitted that there are material deficiencies in the case of the prosecution and no independent witness has been joined in the present case. It is further submitted that accused has been falsely implicated in the present case and process was not served to the accused person. As such, it is prayed that accused be acquitted of the said offence.
APPRECIATION OF EVIDENCE
14. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to establish the offence under Section 33 of the Delhi Excise Act, the prosecution must fulfil all the essential ingredients of the offence. Section 33 of the Delhi Excise Act is reproduced for ready reference-
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) 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 works any manufactory or warehouse; (c) bottles any liquor for purposes of sale; (d) uses, keeps or has in his possession any ANKU Digitally signed by material, still, utensil, implement or apparatus, whatsoever, for R ANKUR PANGHAL the purpose of manufacturing any intoxicant other than toddy or PANG Date:
2022.11.28 21:34:01 Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 10 of 21 HAL +05'30' 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, 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"
15. I have carefully gone through all the records at hand and testimony of the witnesses. After perusal, this court is of the opinion that the point for determination in the present case are:
I. Whether on 11.08.2017 at about 9:00 PM at MCD Pump, near railway line Shahadara, Takya Gullu Shah, Shri Ram Nagaer, Shahdara, Delhi accused Sonu @ Amit was found in possession of one plastic katta containing 52 quarter bottles of illicit liquor as per seizure memo X in his possession at the relevant place and thereby committed an offence punishable U/s 33 of Delhi Excise Act.
II. Whether during the course of trial of present case accused Sonu @ Amit stopped appearing in the court, as a result of which he was declared absconder vide order dated 07.11.2022 which amounted to an offence punishable u/s 174A IPC.
16. In criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. On a bare perusal of the above offence, it can be culled out that the prosecution has ANKUR to prove that the accused was found in possession of illicit liquor, PANGHAL and the said possession of the accused was without any permit, Digitally signed by ANKUR PANGHAL licence or pass. Thus, it is essential to prove the recovery from Date: 2022.11.28 21:34:20 +05'30' the accused.
Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 11 of 2117. The Ld. APP has relied upon Section 52 of the Delhi Excise Act. As per ld. APP for the state, as soon as the accused is charged of commission of the offence punishable under Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act. The said argument does not find favour with this Court. Section 52 of the Delhi Excise Act reads as under:
"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".
18. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act stipulates that as a prerequisite 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 has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. 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 ANKUR presumption as provided for under Section 52 of the Delhi Excise PANGHAL Digitally signed by ANKUR PANGHAL Act can be raised against the accused in the present case. Date: 2022.11.28 21:34:40 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 12 of 21
19. In the present case the prosecution story rests entirely on the alleged recovery of case property i.e., illicit liquor, from the possession of accused by police official i.e., PW5 who was on patrolling duty at the relevant time and place of incident. At the outset, it is observed that no evidence of any arrival/departure entries of PW5 has been led by the state. PW5 in his cross examination has stated that he had not made any DD entry while going for patrolling duty. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
PW5 has not tendered any such entry into evidence to corroborate his stand.
20. In the present case, the prosecution has not led evidence of any public person. All the witness are police officials. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery. In fact, in the rukka it has been stated that police officials did ask certain public persons to join the proceedings however they ANKUR PANGHAL refused citing just reasons. Further, PW5 stated in his cross- Digitally signed by ANKUR PANGHAL Date: 2022.11.28 21:34:57 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 13 of 21 examination that place of recovery is surrounded by jhuggies and also submitted that IO did not give any notice to any passer-by nor recorded their names and addresses. Further, there is nothing on record to show that IO had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW3 and PW5 to join public witnesses in the proceedings. 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. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar vs. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt ANKU Digitally signed by in this direction appears to have been made and this, by itself, is R ANKUR PANGHAL a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
PANG Date:
2022.11.28 21:35:12 Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 14 of 21 HAL +05'30' In a case law reported as Anoop Joshi vs. State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. 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 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".
21. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another vs. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinabove and hereinafter, which raise suspicion over the prosecution version.
22. Further, as per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the PW3 with the seal of DBS. However, no handing over memo regarding the same was prepared. Further, the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been ANKUR tampered with cannot be ruled out. The seizure memo Ex.PW3/A PANGHAL Digitally signed by ANKUR PANGHAL was made on 11.08.2017 and PW2 has deposed that he has Date: 2022.11.28 21:35:29 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 15 of 21 deposited the samples in Excise Office, ITO on 12.09.2017, i.e., after a delay of around 30 days. There is no evidence to show when the property was deposited in the malkhana. No register no. 19 has been produced. As such, the prosecution has not been able to prove that there was no scope of tampering. Therefore, the evidence of the witnesses on this point does not inspire confidence.
23. Moving ahead, PW3 had deposed that seizure memo Ex. PW3/A was prepared before rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo Ex. PW3/ A. Accordingly, it follows that the number of the FIR would have come to the knowledge of the PW3 only after a copy of the FIR was brought to the spot by PW5. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW3/A bears the FIR number and case details. The same indicates that FIR number was mentioned on the said document while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of in Pawan Kumar vs. The Delhi Administration, 1989 Cri.L.J. 127 wherein it was observed in as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was affected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in ANKUR the recovery memo or the sketch plan which had come into PANGHAL Digitally signed by existence before the registration of the case. However, from the ANKUR PANGHAL Date: 2022.11.28 perusal of the recovery memo, I find that the FIR is mentioned 21:35:45 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 16 of 21 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 F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
24. Furthermore, in paragraph 4 of Mohd. Hashim vs. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub Inspector Narender Kumar Tyagi (PW7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex.PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
25. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo Ex. PW3/ A. The same leads to inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
ANKUR
26. The facts that no independent witness was cited or PANGHAL Digitally signed by examined, daily diary entry regarding departure of PW5 have ANKUR PANGHAL Date: 2022.11.28 21:36:02 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 17 of 21 been proved, possibility of misuse of seal cannot been ruled out, the appearance of FIR number and case particulars on the seizure memo has not been explained and contradictions in the testimony of prosecution witnesses, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out. Considering the discussion on the above issues, the inevitable conclusion is that the prosecution has failed to prove that illicit liquor was recovered from the possession of the accused.
SECTION 174A IPC
27. Apart from the main offence, accused Sonu @ Amit has been charged with the offence under section 174A IPC. The offence under section 174A IPC pertains to non-appearance in pursuance of a proclamation issued under section 82 CrPC. Failure to appear constitute the offence. Under section 82 CrPC, whenever the court comes to a conclusion that a person is absconded or concealed himself, despite issuance of warrants, a written proclamation issued to require him to appear before the court. In order to ensure that publication of proclamation, certain requirements, stipulated in the provision, are to be met. The proclamation is to be publicly read in some common species place of town, village, it has to be affixed at the house or homestead of the person and a copy of the same is to be affixed in the court house. A clear period of 30 days from the date of publication is to be given to the accused to appear before the court. ANKUR Digitally signed by ANKUR PANGHAL PANGHAL Date: 2022.11.28 21:36:23 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 18 of 21
28. In order to prove the offence under the said provision, the prosecution has examined three witnesses. The first important witness is PW6 HC Nizammudin. He entered the witness box to depose that he was entrusted with the process under section 82 CrPC and on 23.03.2022, he went to the house of accused and met his mother namely Mevawati, who told him that accused Sonu @ Amit is not residing with her and she does not know whereabouts of the accused. He recorded statement of mother of the accused. He thereafter affixed copy of process outside the house of accused and collected nearby persons and read over the contents of process in loud voice. He pasted copy of process on noticeboard of court premises and prepared report in this regard which is Ex. PW6/A bearing his signature at point A. Statement of Mevawati is Ex. PW6/B bearing his signature at point A.
29. Learned counsel for the accused has argued that mandatory requirements of the provision have not been complied with. Per contra, learned APP submits that the offence is cogently proved as against the accused.
30. In this regard, it is seen that during his cross examination, PW6 has deposed that he does not remember exact time when he reached at the house of accused person. However, he submitted that it was noon time. He further submitted that he collected 10-15 persons but he does not remember the names of persons. No arrival/departure entry were exhibited by the prosecution which would have been a substantial piece of evidence to corroborate the version of witness. Furthermore, witness has recorded statement of mother of accused only and ANKUR Digitally by ANKUR signed has not recorded the statement of any public person present on PANG Date:
PANGHAL 2022.11.28 HAL 21:36:42 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 19 of 21 the spot, in order to prove the execution of the process. Therefore, in such circumstances, the execution of process cannot be said to be proved beyond reasonable doubt. The testimony of other witnesses PW7 and PW8 is of no help to the prosecution, as they have only filed the kalandra after arresting the accused. Thus, the accused is entitled to benefit of doubt for commission of offence under section 174A IPC.
CONCLUSION
31. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 33 of the Excise Act & 174A IPC beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution. The recovery of the illicit liquor from the possession of the accused, which was the essential ingredient of the offence, is highly doubtful. The fact that independent witnesses were not joined, despite abundant availability, casts serious doubt on the version of the prosecution. Further, the accused has been able to raise doubts with respect to the possibility of tampering with the case property. For the offence under section 174A IPC, it is not proved beyond reasonable doubt that the process was ever executed beyond reasonable doubt. The other material on record does not inspire confidence and a conviction cannot be based on the said material.
32. Resultantly, the prosecution has failed to prove the offences beyond reasonable doubt and the accused is entitled to the benefit of doubt. As such, the accused SONU @AMIT is ANKUR Digitally signed by ANKUR PANGHAL PANGHAL Date: 2022.11.28 21:37:01 +05'30' Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 20 of 21 hereby found not guilty. He is ACQUITTED of the offences under Section 33 of Delhi Excise Act and 174A of the Indian Penal Code, 1860.
Announced in open court on 28.11.2022 in the presence of the accused. The judgment contains 21 pages and each page have been signed by the undersigned.
ANKUR Digitally signed by ANKUR PANGHAL (ANKUR PANGHAL) MM-06, Shahdara District, PANGHAL 21:37:19 +05'30' Karkardooma Courts, Delhi Date: 2022.11.28 28/11/2022 Cr. Case No. 3526/2017 State vs. Sonu @ Amit Page 21 of 21