Delhi District Court
State vs . Sandeep Sharma @ Golu And Anr. on 29 October, 2022
IN THE COURT OF ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, SHAHDARA DISTRICT, DELHI
Presided by: Miss Aakanksha Vyas
State Vs. Sandeep Sharma @ Golu and Anr.
FIR No.: 440/2018
PS: Anand Vihar
JUDGMENT
A Case Identification Number 926/2019 B Name of the accused & his (1) Sandeep Sharma @ Golu S/o Sh. Soni parentage and address Lal, R/o H. No. C-77, G. No. 10, Amar Colony, Kamruddin Nager, Nangloi Delhi.
(2) Vimal Kumar S/o Sh. Chander Pal, R/o RZF 123 Nihal Vihar Phase-II, Nilothi Ext.
Nangloi Delhi.
C Date of commission of the 24.12.2018 offence D Date of Institution of the 02.03.2019 case E Offence Charged Offence u/s 33 Delhi Excise Act 2009 F Plea of accused persons Pleaded not guilty G Order Reserved on 29.10.2022 H Date of Pronouncement of 29.10.2022 judgment I Final Order Both accused are acquitted J State represented by Sh. Shreyas Pragyanan, Ld. APP K Accused persons Sh. Mahesh Kumar represented by FIR No. 440/2018 State Vs. Sandeep Sharma @ Golu and anr. Page No. 1 of 8 BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Vide this order, I shall dispose off the present case in which the accused persons herein namely Sandeep Kumar @ Golu and Vimal Kumar have faced trial for the commission of offence under section 33 of the Delhi Excise Act, 2009. Briefly put, the case of the prosecution is that on 24.12.2018 at about 11 AM at Cross River Mall Picket, Anand Vihar, accused Sandeep Sharma was found driving a Santro Car bearing no. DL 3 CAA 9620 containing 33 cartons of illicit liquor i.e. 24 carton boxes containing 48 quarter bottles each of "Impact Green Whiskey for sale in Haryana only", and 9 carton boxes containing 50 quarter bottles each of "Asli Santra Masale Desi Sharab" without valid permit or license. Further, the registered owner of the said car was accused Vimal Kumar. The said liquor was seized from the accused Sandeep Kumar @ Golu and consequently, present FIR no. 440/18 dated 24.12.2018, PS Anand Vihar, was registered. After completion of investigation, chargesheet was filed against both the accused persons for the commission of the above mentioned offence. Both the accused were summoned and charged with the commission of the above mentioned offence to which they pleaded not guilty and claimed trial.
2. Vide separate statement, both accused persons admitted the registration of the present FIR Ex. D1 as well as the report of the Chemical Examiner qua the seized liquor Ex. A1.
3. To prove its case, the prosecution examined four witnesses. PW1 is HC Dheeraj, who had initially apprehended the accused Sandeep with the illicit liquor on 24.12.2018 along with PW2 Ct. Akhilesh. PW1 deposed that he was on picket duty at Cross River Mall on 24.12.2018 with PW2 and secret informer told them that one silver colour santro car bearing no. DL 3CA 9620 would come towards Karkardooma Court with illicit liquor. Further, at around 11 AM, the said car came towards Karkardooma Court and PW1 and PW2 stopped the said car and upon cheking, it was found to contain 33 cartons of illlicit liquor as FIR No. 440/2018 State Vs. Sandeep Sharma @ Golu and anr. Page No. 2 of 8 described in Para 1. Thereupon, the accused Sandeep was apprehended. Further, public persons were asked to join investigiation but in vain. PW1 further deposed that he took one sample from 24 cartons and one sample from the remaining 9 cartons and the remaining quarter bottles were marked, put in the plastic katta and sealed with the seal with the DS while the sample bottles were marked and sealed in a white cloth with the seal of DS. PW1 further deposed that thereafter he filled Form 29, seized the liquor vide Memo Ex. PW1/A, the abovementioned vehicle vide Memo Ex. PW1/B and prepared Rukka Ex. PW1/C. PW1 also deposed that Excise Staff Ct. Tajender and Ct. Sunil had also reached the spot and informed him that they had also received information regarding the said liquor. PW1 further deposed that PW2 took the Rukka to the PS for registration of FIR and thereafter, further investigation was marked to PW4/IO HC Yashpal who prepared site plan Ex. PW1/D at the instance of PW1. PW1 also handed over the accused Sandeep and illicit liquor as well as the above mentioned car to the IO. PW1 identified the accused as well as the case property in the court.
PW2 is Ct. Akhilesh and he reiterated the testimony of PW1. Further, he is a witness to the seizure memos Ex. PW1/A and Ex. PW1/B. He also identified the accused in the court.
PW4 is IO ASI Yash Pal, who deposed that on 24.12.2018, after the registration of the present FIR, he had reached the spot along with PW3 and PW2 and met PW1 who produced the accused and handed over the above mentioned vehicle as well as the liquor seized from accused Sandeep. PW4 further deposed that he prepared site plan Ex. PW1/D at the instance of PW1, arrested and personally searched the accused Sandeep vide Memo Ex. PW1/A and Ex. PW1/B and recorded his disclosure statement Ex. PW4/B. PW4 further deposed that on 29.01.2019, accused Vimal had come to the PS and PW4 arrested him vide Memo Ex. PW4/A and recorded his disclosure statement Ex. PW4/C. PW4 also deposed that he recorded the statements of the FIR No. 440/2018 State Vs. Sandeep Sharma @ Golu and anr. Page No. 3 of 8 witnesses and sent the sample bottles of the illicit liquor to Excise Department for analysis and filed the supplementary charge-sheet qua the result of the Laboratory Analysis. PW4 also identifed the accused in the court.
PW3 is Ct. Pramod who had joined the investigation with PW4 on 24.12.2018 and he reiterated the testimony of PW4. Further he is a witness to the arrest of accused Sandeep and identified him in the court.
4. The testimony of PWs shall be discussed during appreciation of evidence. After completion of the prosecution evidence, the statement of the accused persons was recorded under section 313 Cr.PC in which they denied the case of the prosecution and alleged that they have been falsely implicated.
However, the accused did not lead defence evidence. Thereafter final arguments were heard.
5. The accused have been charged with the commission of offence under section 33 of the Delhi Excise Act, which provides as follows :
"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, transport or remove 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 material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy 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, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprionment for a term which shall not FIR No. 440/2018 State Vs. Sandeep Sharma @ Golu and anr. Page No. 4 of 8 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."
6. I have carefully perused the file and examined the testimonies of the witnesses and I find that various facts have come on record which cast a strong doubt upon the case of the prosecution. To begin with, in the present case, the place of recovery is in front of Cross River Mall and the alleged liquor has been seized from accused Sandeep in broad day light i.e. about 11 AM. Yet, no public witness was joined in the recovery or arrest proceedings. PW1 has deposed in his testimony that he had asked some public persons to join the investigation but none agreed and left the spot. However, PW1 has also deposed during cross- examination that no notice was given to the public persons to join the investigation. Similarly, PW3 Ct. Pramod has also deposed during cross- examination that no public person was asked to join the investigation after recovery of the liquor from accused Sandeep while PW4 has deposed during his cross-examination that passers by were present but no notice was served upon the public persons to join the investigation. Thus, the testimony of the above- mentioned PWs does not reflect that sincere efforts were made to join the public witnesses during the investigation in as much as they have deposed that no notice was given by PW1 or PW4 to public persons to join investigation. The names of the public persons who were asked to join investigation is also not on record. Section 100 (4) Cr.PC casts statutory duty upon the officials conducting search to join two respectable persons of the society, which has not been done in the present case. The police officers are also entrusted with ample power under the provisions of Cr.P.C. to initiate proceedings u/s 187 IPC if any person does not cooperate with them despite giving notice. The non joining of independent witness casts a serious doubt over the fairness of the investigation by police. In this regard, reliance is placed upon the judgment in the case titled Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi , wherein it has been held as under:
FIR No. 440/2018 State Vs. Sandeep Sharma @ Golu and anr. Page No. 5 of 8 "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 have 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 case of a 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 IO 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."
Reliance is also placed upon the judgment of the Delhi High Court in case titled Anoop Joshi Vs. State 1992(2) C.C. Cases 314 in which it was observed as under:
"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 rigors 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".
Similar observations have been made in cases titled Narsi v. State of Haryana 1998 (4) Crimes 105 (SC) and State of Rajasthan v. Teja Singh 2001 (II) AD (SC) 125.
7. Next, the arrival and departure entries of the police officials namely PW1 & PW2 who were allegedly present at the spot and initially apprehended the accused Sandeep with the liquor is a vital piece of evidence, but the same have FIR No. 440/2018 State Vs. Sandeep Sharma @ Golu and anr. Page No. 6 of 8 not been brought on record. PW1 and PW2 specifically deposed that they did not remember the DD Entry pertaining to their Picket Duty at the spot i.e. Cross River Mall. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per the PPR rules. It is apposite at this juncture to reproduce Chapter 22 Rule 49 of Punjab Police Rules, 1934, which provides 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 personality by signature or seal. Note:-The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
In the absence of the arrival and departure entries of PW1 & PW2, their very presence on the spot is doubtful. In the present case, admittedly, no public witness has joined the investigation and thus it was more important and incumbent in the present case that the arrival and departure entries be proved to corroborate the factum of presence of the police personnel on the spot.
8. In view of the preceding discussion, the recovery of the liquor from accused Sandeep has not been established by the prosecution beyond all reasonable doubt. Accused Vimal has been charged for the offence in question on the ground that he is the owner of the Santro Car No. DL 3CAA 9620 from which the liquor was seized. However, as the said seizure itself is doubtful, the offence in question is not established beyond all reasonable doubt even against accused Vimal.
9. It is settled law that in a criminal case, the prosecution is under the obligation to prove the case against the accused beyond all reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable FIR No. 440/2018 State Vs. Sandeep Sharma @ Golu and anr. Page No. 7 of 8 doubt on the basis of cogent, convincing and reliable evidence. Accused cannot be convicted on the basis of suspicion or assumptions and suspicion howsoever grave cannot take place of proof. In light of the preceding discussion, the case of the prosecution is not proved beyond all reasonable doubt. Hence, both accused persons stand acquitted of the offence charged.
Announced in the Open (AAKANKSHA VYAS)
Court on dated 29.10.2022 ACMM/SHAHDARA DISTRICT/
KARKARDOOMA COURTS/
DELHI/29.10.2022
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