Delhi District Court
State vs Jameel @ Jamir on 14 October, 2023
IN THE COURT OF SH. ANIMESH BHASKAR MANI TRIPATHI,
MM02, NEW DELHI DISTRICT, PATIALA HOUSE COURTS
STATE Vs. Jameel @ Jamir
FIR No. 205/2014
PS: Chanakyapuri
U/S: 33 Delhi Excise Act
CNR No. : DLND02-009828-2015
Date of commission of offence : 13.09.2014
Date of institution of the case : 25.07.2015
Name of the complainant : Ct. Ved Prakash
Name of accused and address : Jameel @ Jamir
S/o Sh. Hasim Mohd.
R/o Jhuggi No. 461/4, Sanjay Camp,
Chanakyapuri, New Delhi.
Offence complained of or proved : U/s 33 Delhi Excise Act
State Representation : Asst. Public Prosecutor Sh. Prashant
Chaudhary
Plea of Accused : Plead not guilty
Final order : Acquitted
Date of judgment : 14.10.2023
State Vs. Jameel @ Jamir
FIR No. 205/2014,
PS Chanakaya Puri Page No.1/19
JUDGMENT
1. IO SI Virender Singh has presented this charge-sheet against above named accused for initiation of trial U/s 33 Delhi Excise Act, 2009. The case of the prosecution in brief is that on 13.09.2014 at about 01:30 PM, near Majar, Sanjay Camp, Chanakaya Puri, New Delhi within the jurisdiction of Chanakaya Puri, accused was found in possession of six petties containing 48 quarter bottles each in every petty of M.V. Group Besto Whiskey for sale in Arunachal Pradesh only 180 ML as mentioned in seizure memo mark A, without any permit / licence or valid license or permit and in contravention of Notification issued by Delhi Administration. Accused was arrested. Site plan was prepared. Case property was deposited in the Malkhana and sample was deposited in Excise Lab. After completion of the entire investigation final report was presented for trial.
2. After presentation of charge-sheet, accused was summoned. Copies of the charge-sheet was supplied to the accused U/s 207 of Code of Criminal Procedure, 1973 (for short "CrPC"). Prima facie case U/s 33 Delhi Excise Act was found to be made out against the accused. Accordingly, charge was framed against the accused, to which she pleaded not guilty and claimed trial.
3. The prosecution examined 10 witnesses in support of its case, which are as follows:-
(3.1) HC Satish Kumar was examined as PW-1. He deposed that on 13.09.2014, he was posted at P.S. Chanakaya Puri, as duty officer. His working hours were from 4.00 p.m. to 12.00 midnight. At around 4.50 p.m, he received one rukka/tehrir through Ct. Tasveer who had been sent by H.C. Brij Prakash. He registered the FIR and handed over the copy of same alongwith original rukka and certificated u/s 65B Evidence Act to constable Tasveer so that he can handover the same to head constable Brij Prakash. Copy of FIR is Ex. PW1/A. Endorsement on rukka is Ex. PW1/B. Certificate u/s 65B is Ex. PW 1/C. State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.2/19 During his cross examination, he stated that he had not seen the incident because he was not eye witness.
(3.2) Ct. Ved Prakash was examined as PW-2. He deposed that on 13.09.2014, he was posted at P.S. Chanakaya Puri, as constable. At round 1:30 p.m. he was working as Beat Constable at Sanjay Camp Chankaya Puri, New Delhi. When he reached near Mazzar and the Jhuggi of accused Jameel, he saw accused Jameel had one cartoon box in his hand and he was taking the same in his jhuggi. Full few cartoon box were also kept outside the jhuggi. Thereafter, he moved towards the accused and after seeing him, accused had left the cartoon box at the same place and had ran over from the spot. He found six cartoon box which consisted of illicit liquior (quarter). At outside the cartoon hox N.V. Group was written. At the quarters, N.V. Group besto whisky for sell in Arunachal Pradesh was written. Thereafter, he informed about the incident in the PS. Thereafter Police staff (head constable/L.O. Brij Prakash and constable Tasveer) had come at the spot. I.O. Took his complaint/statement Ex. PW 2/A. He showed the spot to the IO. He had also handed over the case property. MHC(M) produced the case property i.e. sample of two illicit liquior (quarter) at which N.V. Group besto whisky for sell in Arunachal Pradesh are written. Ct. Ved Prakash correctly identified the case property. MHC (M) has also given the record of disposal of the case property except the samples. Record of the disposal of the case property etc. is EX. P-2 (Colly). Thereafter, he had joined investigation with the IO. Each cartoon box consisting 48 quarters of illicit liquor. IO had taken out 02 quarters from each cartoon box as sample. IO had also kept the 03 cartoon box each into different plastic Kattas (Bags). The kattas had been sealed with the seal of B.P. IO had also sealed the cap/mouth of the samples with the seal of B.P. Thereafter, IO had filled the form no. M-29 and seized the case property. Seizer memo is exhibit PW 2/B. After using the seal the seal had been handed over to constable Tasveer. Thereafter, IO Prepared the tahrir and handed over the same to constable Tasveer for registration of FIR. IO prepared the site plan at his instance. Meanwhile constable Anil had also come on the spot and he had told them that he had also the secret information regarding abovesaid incident. On 14.09.2014, he alongwith head constable Brij Prakash and constable Tasveer was working as beat constable at Sanjay Camp, Chanakaya State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.3/19 Puri, ND. When they reached near Korea Embassy and they found accused Jamil was passing for there. Thereafter, IO had apprehended him. After interrogating him, IO had arrested him and made his personal search. IO had also recorded his confessional statement. The above said memo's are exhibit PW 2/ C, D and E respectively.
In his cross-examination, he deposed that Jhuggi of accused is 461/4. In front of his jhuggi, there is one mazzar. He called at the P.S at around 01:40 p.m. Police staff had come at the spot at around 2 pm. IO had requested to few public persons to join the investigation but no one had joined the investigation. The cartoon boxes of illicit liquior were kept just outside the jhuggi of the accused. At around 2:30 p.m, Ct. Tasveer had taken the rukka for registration of FIR. He again stated that at around 4:30 pm, Constable Tasveer had returned back at the spot at about 6:00 pm. IO had arranged the kattas/plastic bags from the near by shops. IO had prepared the site plan at around 3 pm. IO had recorded his complaint/statement at the spot. He did not remember that whether the IO had recorded the statement of any other person in his presence at the spot. Finally, he left the spot at around 8 pm. After reaching in the PS, IO had deposited the case property in the Malkhana of PS at around 8:30 pm. On next day, they reached at the Sanjay Camp at around 9:30 am. The accused was arrested by the I.O. at around 9:00 pm. He did not know whether IO had made any public person as witness at the time of arresting the accused. He could not say to whom the IO had informed about the arrest of the accused. He personally searched the accused but at that time IO and Ct. Tasveer were also present. He did not get anything in personal search. He denied that accused has been falsely implicated in this present case. He denied that all the investigation was done while sitting in the PS itself. He denied that IO has not done the legal and proper investigation. He denied that IO had taken the signatures of the accused on the blank papers. He denied that he is deposing falsely at the instance of IO.
(3.3) HC Brij Prakash was examined as PW-3. He deposed that on 13.09.2014, he was posted at P.S. Chanakaya Puri, as HC. After receiving the information, he alongwith constable Tasveer went to the i.e. near Mazzar, Sanjay Camp Chankaya Puri, New Delhi. When he reached the spot, he met Ct. Ved Prakash. Constable Ved Prakash had handed over him the State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.4/19 case property i.e. six cartoons boxes of illicit liquior. Thereafter, recorded his statement/complaint Ex. PW 2/A. He requested few public persons to join the investigation but no one had joined the same and left the spot after telling their reasons for the same. Thereafter, he opened the cartoon boxes and found N.V. Group besto whisky for sell in Arunachal Pradesh were written on the quarters. Each cartoon box consisting 48 quarters of illicit liquor. He had taken out 02 quarters from each cartoon box as sample. He had also kept the 03 cartoon box each into two different plastic Kattas (Bags). The kattas had been sealed with the seal of B.P. He had also sealed the cap/mouth of the samples with the seal of B.P. Thereafter, he had filled the form No. M-29 Ex. PW3/B and seized the case property. Seizer memo Ex. PW 2/B. After using the seal, the seal had been handed over to constable Tasveer. Thereafter, he prepared the tahrir Ex. PW1/B and handed over the same to constable Tasveer for registration of FIR. He prepared the site plan at the instance of constable Ved Prakash site plan Ex. PW 3/A. Thereafter, he inquired from the neighbours about the accused and he also searched him. After getting the FIR registered, constable Tasveer had came back at the spot and handed over him copy of FIR, original tahrir and certificate u/s 656 Evidence Act. After visiting the P.S., he deposited the case property in the Malkhanna of the P.S. He recorded the statement of both the above said constable u/s 161 CrPC. On 14.09.2014, he alongwith constable Ved Prakash and constable Tasveer was working as beat constable at Sanjay Camp, Chanakaya Puri, ND. When they reached near Korea Embassy, they found accused Jamil was passing from there. Thereafter, he had apprehended him. After interrogating him, he had arrested the accused and made his personal search. He had also recorded his confessional statement. The said memo's are Ex. PW 2/ C, D and E respectively. Thereafter, they visited the PS. After putting the accused behind bar, he recorded the statement of witness u/s 161 CrPC. On 01.10.2014, he sent the samples to FSL, Excise Department ITO New Delhi. Thereafter the case file had been handed over to MHC(R).
In his cross-examination, he stated that he received the information at about 01:40 pm. He reached at the spot on his personal bike and constable Tasveer had joined him as well when he was on the way to the spot. He reached at the spot at around 2:15 pm. Jhuggi State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.5/19 number of accused is 461/4. In front of his jhuggi there is one mazzar. He did not remember the number of neighbouring jhuggies as the numbers of the same are not in sequence. He parked the bike near the spot. Constable Tasveer had taken the rukka at about 4:30 pm for registration of FIR. He came back at the spot at about 5:30 p.m. Meanwhile, he prepared the site plan. The samples had been sent to FSL through Constable Tasveer. He sent the same through road certificate. On 13.09.2014, finally he left the spot at about 8:00 pm. He did not remember the exact time when he deposited the case property in the Malkhana. He did not remember that on 14.09.2014 he requested any public person to join the investigation at the time of arrest of the accused. On 14.9.2014, he alongwith other beat staff reached at Sanjay Camp Chanakya Puri in the morning. He arrested the accused at about 9:05 p.m. He informed the wife of the accused regarding his arrest. He did not remember the mode of communication. He denied that accused has falsely implicated in this present case. He denied that all the investigation has been done while sitting in the PS itself. He denied that he had not done the legal and proper investigation.
He denied that he had taken the signatures of the accused on the blank papers.
(3.4) HC Anil Kumar was examined as PW-4. He deposed that on 13.09.2014, he was posted as a constable in Excise Department, ITO Delhi. One secret informer informed him regarding the liquor, which was to be brought by someone at the Jhuggi of Jameel near Sanjay Camp. Thereafter, he alone visited at the jhuggi of Jameel where he met HC Brij Prakash, Ct. Ved Prakash and Ct. Tasvir who were already present at the spot. He also found that in two katta, 6 peti of wine with the seal of "BP" were kept. In each katta containing 3 peti of wine. All wine was having the label of N.V. Group Besto Whiskey for sale of Arunachal Pradesh only. IO also found that 12 quarter bottle were kept as sample. On 13.05.2013, IO recorded his statement.
During his cross-examination, he stated that he received information at about 11:30 AM. After informing the senior, he left for jhuggi of Jameel near Sanjay Camp. He reached at the spot at about 3:30 PM by motorcycle. He did not remember the number of jhuggi but it was near Mazar. He did not visit inside the jhuggi of Zameel. He remained at the spot at about 15- 20 State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.6/19 minutes. All proceedings regarding the seizure of the recovered liquor were already completed by the IO. He denied that he was deposing falsely. He denied that he did not visit at the spot or gave his evidence at the instance of IO.
(3.5) HC Brijender Singh was examined as PW-5. He deposed that on 01.10.2014, he was posted at Excise Control Laboratory, Vikas Bhawan, Delhi as Deputy Chemical Examiner. On 01.10.2014, 12 sealed samples seal with the seal of B.P. along with duly filled form M-29 in connection with FIR No. 205/2014 were received at the Excise Control Laboratory. The samples were handed over to Sh. Ramesh Bedi for chemical analysis. The said samples were analyzed by Sh.Ramesh Bedi, who was assistant chemical examiner at that time. The said samples were analyzed under his supervision. The analysis report was prepared under his supervision. According to the analysis, the samples were found to be whisky. The report is Ex. PW-5/A. During his cross-examination, he stated that he did not know who received the samples in question at the laboratory. There is no chance of mixing up of samples nor there is any chance of tampering with the samples. He could not say how much time was spent on analyzing the samples in question. The analysis was done in his supervision. He denied that the analysis was not conducted under his supervision. He denied that he is deposing at the instance of the IO. It is not possible to tell the name of the chemical with the help of which the analysis were conducted as the samples were 12 in number and there are several chemicals as BIS Specification which are used to analysis the samples.
(3.6) Sh. Ramesh Bedi was examined as PW-6. He deposed that on 01.10.2014, he was posted at Excise Control Laboratory, Vikas Bhawan, Delhi as Asst. Chemical Examiner. On 01.10.2014, 12 sealed samples seal with the seal of B.P. alongwith duly filled form M-29 in connection with FIR No. 205/2014 were received at the Excise Control Laboratory. The samples were handed over to him for chemical analysis. The said samples were analyzed by him. The said samples were analyzed under the supervision Sh. Brijender Singh. The analysis State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.7/19 report was prepared under his supervision. According to the analysis, the samples were found to be whisky. The report is Ex.PW-5/A. During his cross-examination, he stated that he did not remember who received the samples in question at the laboratory. There is no chance of mixing up of samples nor there is any chance of tampering with the samples. A period of approx. two days was taken to analyze the samples in question. He denied that the analysis was not conducted under the supervision of Sh. Brijender Singh. He denied that he was deposing at the instance of the IO. He stated that it is not possible to tell the name of the chemical with the help of which the analysis were conducted as the samples were 12 in number and there are several chemicals as BIS Specification which are used to analysis the samples.
(3.7) Retd. SI Dhurav Narayan was examined as PW-7. He deposed that on 13.09.2014, he was posted at PS Chanakya Puri as Duty Officer from 8am to 8pm. On that day, at around 1:40 PM, he received a call from Ct. Ved Prakash No.739/N.D., who informed him that if an IO is sent, then illicit liquor and the person selling the same may be apprehended. He recorded the same information in Register No.2 (the station daily dairy). The same information is contained in DD no.18A Ex.A4. He handed over the same to IO Brij Prakash No.711/N.D. He also informed Ct. Tasveer No.2423/N.D. to join HC Brij Prakash.
(3.8) Ct. Tasveer was examined as PW-8. He deposed that on 13.09.2014, he was posted at PS Chanakya Puri as Ct. On that day upon receiving the information from DO, he alongwith HC Brij Prakash reached the spot ie. Sanjay Camp. On reaching there, Ct. Ved Prakash handed over six gatta pettis of illicit liquor to IO Brij Prakash. Ct. Ved Prakash further informed that these gatta pettis of illicit liquor has been recovered from one person namely Jameel @ Jameer who has allegedly escaped after seeing him and leaving the gatta pettis there. On the spot, the statement of Ct. Ved Prakash was recorded and 3-4 public persons were asked to join the investigation. Thereafter, the HC Brij Prakash opened the said gatta peties and found 48 quarter bottles in each of the six gatta peties. The said quarter bottles were labled with "NV State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.8/19 Group Besto Whisky for sale in Anuranchal Pradesh only, 180 ml". The every quarter bottles was duly capped with a seal. On the cap of quarter bottles the following words were written i.e. "NV Group NV Distilleries Badholi Haryana. Thereafter, two quarter bottles each were removed from each of the six gatta peties by way of samples and thereafter the remaining quarter bottles in the said six gatta peties were put in two different Kattas and each katta was filled with three gatta peties and each of the katta was sealed with the seal of "BP". Thereafter, a form M-29 was prepared. The samples were also sealed with the seal of "BP". The recovered liquor was seized vide seizure memo already Ex.PW2/B. The HC Brij Prakash prepared a tehrir on the basis of statement of Ct. Ved Prakash. The same was handed over to him for the registration of FIR. He took the same to the PS Chanakya Puri, got the FIR registered and came back to the spot. Upon reaching the spot, he handed over the original tehrir and copy of FIR to HC Brij Prakash. During the course of investigation, on the next day of the FIR the accused was arrested from near the Korean Embassy. The arrest memo Ex.PW8/F. The confessional statement of the accused was recorded vide memo Ex.PW2/E. The personal search of the accused was conducted. The personal search memo is Ex.PW2/D. On the date of arrest, he took the accused to the hospital for medical examination and got his medication examination done. During the course of investigation, on 01.10.2014, he took the 12 quarter bottles of illicit liquors that was seized by the IO by way of samples to L Block, Vikas Bhawan, ITO and deposited the same in the excise office ITO. On 10.03.2015, he received the result of the said samples and the said result was handed over to the IO. MHC (M) PS Chankya Puri has produced an order of confiscation u/s 59 of Delhi Excise Act, 2009 and the report regarding the destruction of the case property pertaining to the case FIR No. 205/14 dated 13.09.2014, PS Chankya Puri Ex.PW8/G. MHC(M) brought two quarter bottles in a polythene having particulars of the present case. One quarter bottle is empty and the second having 40 ml of liquor, although, both quarter bottles are sealed pack but without any seal. Witness submits that these two quarter bottles are sample bottles preserved before destroying the case property vide order Ex.PW8/G. During his cross-examination, he stated that the spot was a public place. IO gave State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.9/19 oral notice to public persons to join the investigation but they had refused to join the investigation on one pretext or other. IO did not write down the name of public persons who refused to join the investigation. DO noted their arrival and departure entry but he did not know the number of the said entry. IO handed over the seal (BP) to him after sealing the case property. IO prepared the seal handing over memo. He deposited the seal in PS Malkhana alongwith the case property. IO handed over him the rukka for registration of FIR. Before handing over the rukka, IO recorded the statement of the complainant i.c. Ct. Ved Prakash and seized the case property and prepared seizure memo. He came back at the spot after registration of FIR at about 05.30-06.00 pm. He did not remember what all documents were prepared by the IO when he came back at the spot alongwith original rukka and FIR. He again stated that IO prepared the site plan. He denied that there was no liquor found from the possession of the accused and that is why the case property was destroyed deliberately and that is why the legal procedure was not adopted at the time of destroying of case property. The case property was tampered, as the seal was not procured safely a the time of seizure as well as destruction of the case property. The Form M- 29 was filled by the IO before handing over him the rukka. No specimen impression of the seal was taken by IO. No addition or alteration was done by the IO on the seizure memo or on any other document was registration of FIR. He joined the investigation on the next day of the incident. Accused was arrested from Chandragupta Marg, near Nigerian Embassy. He did not remember whether the accused was inquired about the source of illicit liquor. He had signed on 13.09.2014 on seizure memo and his statement. He had also signed the medical of the accused and the site plan. He had signed the arrest memo and personal search memo on 14.09.2014. He denied that accused has been falsely implicated in the present case at the instance of the IO. He denied that he had not joined the investigation and all the documents were prepared sitting at the PS. He denied that he is deposing falsely.
(3.9) HC Gajender was examined as PW-9. He deposed that the investigation of the present case was marked to him my the SHO, however, he did not remember the date. He inspected the file where he found that the FSL report is awaited. He got collected the FSL State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.10/19 result. He prepared the challan and submitted the same in the court.
In this cross-examination, he has stated that he did not remember the date when the investigation of the present case was marked to him.
(3.10) HC Upendra Maan was examined as PW-10. He deposed that on 13.09.2014, he was posted as Ct. at PS Chanakya Puri. On that day, after briefing the ravangi of staff in the beat area was recorded. He made DD No.23B in the roznamcha in which departure of various beat officer in the beat officer was mentioned by him and in the same DD, he also mentioned the departure of Ct. Ved Prakash No.739/ND Sanjay Camp, Chanakya Puri. On perusal of the judicial file DD No.23B dated 13.09.2014 is found on record Ex.PW9/A. In his cross-examination, he stated that DD entry was registered by him at about 9.35 am. No log book entry was made by him regarding the departure of staff in the beat area. He denied that he did not make any DD entry.
4. Vide order dated 24.04.2023, statement of accused U/s 313 r/w section 281 of Cr.P.C. was recorded, in which all the incriminating evidence were put to the accused. Accused stated that on 13.09.2014, he was residing at Sanjay Camp. Nothing was found in his possession. He was never arrested in the present case and he had been falsely implicated in the present case.
5. Learned Assistant Public Prosecutor for the State while summing up prosecution case, submitted that the accused as well as the case property have been correctly identified by the witnesses. He stated that link evidence is also available. He urged that the case has been proved beyond doubt against the accused and prayed for conviction of the accused.
6. On the other hand, learned counsel for the accused argued that the accused has been falsely implicated by the police and nothing was recovered from her possession. He submitted that accused was not arrested from the crime scene and the absence of public witnesses to the State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.11/19 alleged recovery is fatal to the case of the prosecution. He further pointed out contradictions in the testimony of prosecution witnesses to argue that the prosecution has failed to prove its case beyond reasonable shadow of doubts. He prayed for acquittal of the accused.
7. 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 is whether on 13.09.2014 at about 01:30 pm at Majar, Sanjay Camp, Chankaya Puri, accused Jameel was found in possession of one petti containing 48 quarter bottles of illicit liquor at the relevant place and thereby committed an offence punishable U/s 33(1) of Delhi Excise Act.
8. As per the prosecution on the fateful day the accused was found in possession of illicit liquor without any permit or license. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
9. 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.
State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.12/19 (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".
10. 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 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 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 presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case.
11. At this stage, it is pertinent to point out that, there is not a single public witness to the recovery of the liquor in the list of witnesses. The recovery is alleged to have been effected at Majar, Sanjay Camp, Chankaya Puri, New Delhi. The spot of recovery as per the site plan Ex.PW3/A. The place of recovery is, therefore, clearly located in an area where public persons would be readily available. Thus, at the place and time of the alleged recovery of illicit liquor, public persons would in all likelihood have been present and available or have at least passed by the spot.
12. It is also important to point out that, accused was not arrested at the crime scene. It is pertinent that accused was identified by the complainant Ct. Ved Prakash as Jameel upon secret State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.13/19 information. Interestingly, no eye witness forms the part of prosecution witness qua arrest. Furthermore, accused Jameel, was not arrested after recovery of liquor at the crime scene.
13. 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 Ex. PW-1/B it has been stated that police officials did ask certain public persons to join the proceedings however they refused citing just reasons. Further, both PW-2, PW-3 and PW-8 stated during cross-examination, that the spot was a residential area and no one was called from nearby shops and houses to join the investigation. Further, there is nothing on record to show that PW-2, PW-3 and PW-8 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 any police witnesses who were involved in investigation 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 v. 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 State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.14/19 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 in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
In a case law reported as Anoop Joshi V/s 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 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''.
14. 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 v. 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 hereinafter, which raise suspicion over the prosecution version.
15. The present case rests entirely on the alleged recovery of case property, i.e., illicit liquor, from the possession of the accused by police official i.e., PW-2 who was on patrolling duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.15/19 duty to mark his 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."
16. Since public persons were not joined in the investigation, the departure entry of the aforesaid police official i.e., PW-2, PW-3 and PW-8 and when apprehended the accused with case property, becomes a vital piece of evidence. However, no such daily diary entry regarding departure is present on record.
17. Further, as per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the PW-3 HC Brij Prakash with the seal of BP. However, no handing over memo regarding the same was prepared. PW-8 has not deposed anything regarding the taking of seal BP from the PW-3. 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 tampered with cannot be ruled out.
18. Moving ahead, PW-3 had deposed that seizure memo Ex. PW2/B was prepared before rukka PW-1/B was sent to the police station for registration of the FIR. The FIR was, therefore, State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.16/19 admittedly registered after the preparation of seizure memo Ex. PW2/B. Accordingly, it follows that the number of the FIR would have come to the knowledge of the PW-3 only after a copy of the FIR was brought to the spot by PW-8. 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. PW-2/B bear 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 v. 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 effected 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 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 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."
19. Furthermore, in paragraph 4 of Mohd. Hashim v. 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 (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.17/19 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."
20. 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. PW-2/B. 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.
21. The facts that no independent witness was cited or examined, daily diary entry regarding departure of PW-2 and PW-8 have 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.
22. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.18/19 criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
23. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against her in the present case. The accused Jameel is hereby acquitted of the offence punishable under Section 33(1) of the Delhi Excise Act.
24. Case property be confiscated to the State and disposed off as per law if not already done.
Note: This judgment contains 19 pages and each page bears the initials of undersigned and the ANIMESH Digitally signed last page bears the complete sign of undersigned. by ANIMESH BHASKAR BHASKAR MANI TRIPATHI MANI Date: 2023.10.14 Announced in the open Court, TRIPATHI 16:51:45 +0530 On 14th October, 2023. (Animesh Bhaskar Mani Tripathi) MM02/ PHC/ New Delhi State Vs. Jameel @ Jamir FIR No. 205/2014, PS Chanakaya Puri Page No.19/19