Delhi District Court
State vs Narender Singh on 17 September, 2024
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IN THE COURT OF SH. SAURABH GOYAL,
JUDICIAL MAGISTRATE FIRST CLASS01, DWARKA COURTS, DELHI
State Vs. : Narender Singh
FIR No : 165/2019
U/s : 33 Delhi Excise Act
P.S. : PALAM VILLAGE
1. Criminal Case No. : 1547/2020
2. Date of commission of offence : 09.04.2019
3. Date of institution of the case : 26.02.2020
4. Name of the complainant : State
5. Name of accused & parentage : Narender Singh
S/o Sh. Avtar Singh
6. Offence complained or proved : Section 33 Delhi Excise
Act
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 17.09.2024
9. Final order : Acquitted
10. Date of final order : 17.09.2024
Present : Sh. Sudhanshu Saini Ld. APP for state.
Accused in person with Ld. LADC Ms. Priyanka Kanyal.
Digitally signed by
SAURABH SAURABH GOYAL
GOYAL Date: 2024.09.17
16:23:40 +0530
FIR No. 165/2019 St. Vs. Narender
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JUDGMENT
1. The accused Narender Singh is facing trial for offence U/S 33 Delhi Excise Act with the allegations that on 09.04.2019 at about 7:15 PM in front of H. No. E 586, Near CGHC Dispensary, Sect 7 Dwarka, within jurisdiction of PS Palam Village, the accused was found in possession of total 25 cartons of illicit liquor having label Impact Grain Whiskey for sale in Haryana Only, each cartons having 48 quarters bottles (total 1200 quarter bottles of 180 Ml each) in one SX4 car bearing No. DL 8CQ 1424 driven by the accused, which is beyond the prescribed quantity as per the notification issued by Delhi Administration without any permit or license. The criminal law was set into motion by registration of FIR against the accused and investigation into the case began. After completion of the investigation, the present chargesheet was filed for conducting trial of the accused for the alleged offence.
2. After taking cognizance of the offence, the copies of chargesheet was supplied to the accused in compliance of section 207 Cr.P.C. The arguments on charges were heard and charge for offence U/S 33 Delhi Excise Act was framed against accused Narender Singh on 10.04.2024. The accused pleaded not guilty and claimed trial. Thereafter, prosecution evidence was led.
3. In order to prove allegations against accused, prosecution has examined six prosecution witnesses.
4. The proceedings U/S 294 Cr.P.C. were conducted wherein accused admitted the factum of registration of FIR no. 165/2019 along with certificate FIR No. 165/2019 St. Vs. Narender Digitally signed by SAURABH SAURABH GOYAL GOYAL Date: 2024.09.17 16:23:48 +0530 3 U/s 65 B of IEA as Ex. A1 (Colly), DD NO. 67 B dated 09.04.2019 as Ex. A2, Excise Report dated 24.06.2019 as Ex. A3, pursuant to the admission made by accused of these documents, witnesses at Sr. No. 4, 5 & 8 were dropped from the list of witnesses.
5. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence U/S 33 of Delhi Excise Act has been proved beyond doubt.
6. Per contra, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused and that the accused has been falsely implicated by the police officials and even recovery of illicit liquor has not been proved from the possession of accused as no public witnesses were joined by the police officials during investigation and recovery proceedings. It is further argued that due to the lacunae and incoherency in the story of the prosecution, the accused be given the benefit of doubt and are therefore, entitled to be acquitted.
7. Prior to delving into the contentions raised by the prosecution and defence, let us discuss the testimonies of the material prosecution witnesses in brief.
8. PW1 ASI Manohar Singh deposed that on 09.04.2019, he alongwith Ct.Vikram were on beat patrolling duty at beat NO.6 Ramphal Chowk Palam, and during patrolling one secret informer met them and told that one SX 4 Car which will come from the direction of DADA Dev Mela Ground was carrying FIR No. 165/2019 St. Vs. Narender Digitally signed by SAURABH SAURABH GOYAL GOYAL Date: 2024.09.17 16:23:58 +0530 4 illicit liquor and can be apprehended red handed, if raided. He further stated that thereafter, he requested 45 public persons who were present there to join the investigation but all of them left from there without telling their names and address. He stated that thereafter, at around 7:15 Pm, they along with Secret informer reached near CGHS Dispensary, E Block Sector 7, Dwarka, and started waiting for arrival of said car and after some time one SX 4 car was seen coming from direction of DADA Dev Mela Ground and on pointing out by secret informer,they stopped the said car but the driver of the said car ran away after leaving the car in front of H.No. E586, Sector 7 Dwarka, New Delhi. He stated that thereafter, they searched the said car No. DL 8CQ 1424 which was found containing cartons of illicit liquor on the back seat and dicky and on counting total 25 cartons were found and opening the same, it was found containing 48 quarter bottles of Impact Grain Whisky for sale in Haryana, in each carton. Total 1200 Quarter bottles were recovered. He stated that one quarter bottle from each carton was taken out as sample bottles thus, total 25 quarter bottles were taken out as sample and mouth of sample bottles were tied with white cloth and sealed with the seal of MS and given marking from Sr. NO. 1 to 25. The remaining quarter bottles were kept in their respective cartons and the said carton were kept in 12 white kattas containing 2 cartons in each and in one white katta only one carton was kept. The mouth of the said white kattas were tied with white cloth and sealed with the seal of MS and were given Sr. NO. A1 to A13. Form M29 was parepared Ex. PW1/A and seal after use was handed over to Ct. Vikram. All the seized case property was seized vide seizure memo Ex. PW1/B and offending car was also seized vide Ex. PW1/C and thereafter, he prepared rukka/ tehrir vide Ex. PW1/D and handed over the FIR No. 165/2019 St. Vs. Narender Digitally signed by SAURABH SAURABH GOYAL GOYAL Date: 2024.09.17 16:24:04 +0530 5 same to Ct. Vikram who got the present case FIR registered and returned back to the spot with Ct. Hari Mohan and HC Ramesh Kumar as further investigation is marked to HC Ramesh Kumar. He stated that he handed over the recovered seized / sealed case property to HC Ramesh Kumar along with other documents and HC Ramesh prepared site plan at his instance Ex. PW1/E and thereafter, he left the spot. He correctly identified the accused in the court.
9. PW2 HC Vikram Singh deposed on the same lines as that of PW1 ASI Manohar Singh being accompanying him at the time of alleged recovery from the accused. He additionally deposed that after preparation of Rukka, ASI Manohar handed over the rukka to him and he got the present case FIR registered and after registration of the present case FIR he along with Ct. Hari Mohan and HC Ramesh Kumar as further investigation was marked to HC Ramesh Kumar.
10. PW3 HC Arun deposed that on 03.06.2019, he collected the samples exhibits from MHCR PS Palam Villages Vide RC NO. 91/21/19 and deposited the same to Excise Lab ITO and obtained it's receiving upon the said RC which he deposited back with MHCR concerned. He further stated that the IO recorded his statement U/s 161 Cr.P.C.
11. PW4 Sh. Bhupender Kumar, who has been examined being the owner of the offending vehicle, deposed that on 10.05.2019, IO served notice U/s 91 and 160 Cr.p.C upon him to which he gave reply i.e. Ex. PW4/A. He further stated that on 24.05.2019, he produced the accused Narender Singh stating that accused was driving his car at the time of alleged incident before the IO and FIR No. 165/2019 St. Vs. Narender Digitally signed SAURABH by SAURABH GOYAL GOYAL Date: 2024.09.17 16:24:13 +0530 6 IO arrested him vide Ex. PW4/B and conducted his personal search Ex. PW4/C and also admitted his signatures upon the memos at point A. He correctly identified the accused in the court today.
12. PW5 HC Ramesh Kumar deposed that on 09.04.2019, further investigation of the present case was marked to him and he along with Ct. Vikram went to the spot where ASI Manohar handed over him the recovered case property along with the offending vehicle. He further stated that Ct. Vikram handed over him the copy of FIR and original Rukka/tehrir and thereafter, he prepared site plan Ex. PW5/A and served notice U/s 91/166 Cr.P.c upon the owner of the offending vehicle Ex. PW5/B. He further deposed that he arrested the accused Narender Singh vide memo Ex. PW4/B and conducted his personal search Ex. PW4/C and also recorded disclosure statement of accused Ex. PW5/C and also prepared pointing out memo at the instances of accused i.e. Ex. PW5/D. He further stated that he also moved an application for conducting TIP of accused, but accused refused to participate in TIP Proceedings. He further stated that on 03.06.2019, he sent the sample exhibits through Ct. Arun to Excise Lab ITO and obtained it's result and after completion of investigation, he filed the chargesheet before the court. He correctly identified the accused in the court.
13. PW6 HC Hari Mohan, deposed that on 24.05.2019 he joined further investigation of the present case with HC Ramesh and HC Ramesh arrested the accused Narender Singh vide Ex. PW4/B and conducted his personal search Ex. PW4/C and recorded his disclosure statement Ex. PW5/C and also prepared pointing out memo Ex. PW5/D. He further submitted that during investigation, FIR No. 165/2019 St. Vs. Narender Digitally signed by SAURABH SAURABH GOYAL GOYAL Date: 2024.09.17 16:24:20 +0530 7 his statement U/s 161 Cr. P. C was recorded by IO. He correctly identified the accused in the court. Thereafter, after conclusion of prosecution evidence, the matter was listed for recording of statement of accused.
STATEMENT OF ACCUSED U/S 281/313 Cr.P.C.:
14. Statement of the accused Narender Singh under Section 281/313 Cr.P.C. was recorded separately on 12.08.2024 in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case. Accused further opted not to lead evidence in his defence.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
15. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. In the present case, the Accused has been indicted for the offence U/S 33 of Delhi Excise Act. In order to prove the liability of accused under Section 33 of the Delhi Excise Act, the prosecution must establish the fulfilment of all the essential ingredients of the offence. The contents of Section 33 of the Delhi Excise Act are reproduced as follows:
"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;
FIR No. 165/2019 St. Vs. Narender Digitally signed SAURABH by SAURABH GOYAL GOYAL Date: 2024.09.17 16:24:27 +0530 8
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 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."
ii). The nonjoining of any independent / public witness.
16. It is evident from the record that no public witness to the recovery of the liquor has been either cited in the list of prosecution witnesses or has been examined by the prosecution. Apparently, PW1 and PW2 had even asked public persons to join the investigation, however, they refused to join the investigation. As apparent from record, no notice was served to such public persons upon their refusal to join investigation in the case. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi v State 1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
"...18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence FIR No. 165/2019 St. Vs. Narender Digitally signed by SAURABH SAURABH GOYAL GOYAL Date: 2024.09.17 16:24:33 +0530 9 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..."
17. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"...The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner..."
18. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also as stated by PWs, admittedly the independent witnesses were available at the time of recovery but they did not join the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to FIR No. 165/2019 St. Vs. Narender Digitally signed SAURABH by SAURABH GOYAL GOYAL Date: 2024.09.17 16:24:39 +0530 10 ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the IO must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an afterthought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful.
19. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or more independent and respectable inhabitants of the locality are required to be made witnesses to such search, and the search is to be made in their presence. Under Section 100(8) Cr.P.C, refusal to be a witness can render such non willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the present case. Therefore, noncompliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity, makes the prosecution version highly doubtful.
20. This Court is conscious of the legal position that nonjoining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be shifted through in light of the varied facts and circumstances of each individual case. As discussed above and hereinafter, the testimony of the police witnesses in the FIR No. 165/2019 St. Vs. Narender Digitally signed by SAURABH SAURABH GOYAL GOYAL Date: 2024.09.17 16:24:46 +0530 11 present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the muchneeded corroborative value, to the otherwise uncompelling case of the prosecution.
iii). Possibility of misuse of seal of the investigating officer.
21. As per the prosecution story, after preparing seizure of the case property and the samples of illicit liquor with seal of 'MS', the aforesaid seal was handed over to PW2 HC Vikram. This fact cannot be ignored that PW2 HC Vikram was a recovery witness and had apprehended the accused and was subsequently, a part of the investigation in the present case. Thus, the seal was not handed over to any independent witness. There is nothing on record to suggest that PW 1 ASI Manohar Singh had made efforts to handover the seal to any independent witness. Further, no taking over memo is on record to show the genuineness of fact of actual taking over of seal by PW2 HC Vikram back to PW1 ASI Manohar Singh who during his cross examination stated that his seal was returned back to him on the next day. In such a factual backdrop, since the seal was given to PW2 HC Vikram Singh, the seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property.
22. In this regard, judgment in case titled as Ramji Singh v State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"...The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the FIR No. 165/2019 St. Vs. Narender Digitally signed by SAURABH SAURABH GOYAL GOYAL Date: 2024.09.17 16:24:54 +0530 12 case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out. In the present case, the seal of Investigating OfficerHoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out..."
23. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."
24. It is nowhere the case of the prosecution that the seal after use was handed over to any of the independent witness. In view of discussion made above, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore, the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out. Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
FIR No. 165/2019 St. Vs. Narender Digitally signed by SAURABH SAURABH GOYAL GOYAL Date: 2024.09.17 16:25:00 +0530 13
iv). Other infirmities in the prosecution case.
25. In the present case, all the witnesses are police official and no efforts what so ever have been made for associating public persons during the recovery proceedings. Further, no efforts have been made to join any public witness during formation of raiding party though, it was not a chance recovery and the place of recovery was also near CGHS Dispensary DADA Dev Mela Ground, thus, the witnesses must have been easily available and no explanation has been given as to why no efforts were made for joining public witnesses during formation of raiding party.
26. It is also settled law that complainant and IO cannot be same however, in the present case, this principle has not been followed and primarily this investigation was conducted by PW1 ASI Manohar Singh who is complainant in the present case and IO/HC Ramesh has only prepared site plan, arrest memo, personal search memo and disclosure memo and no explanation has been given by prosecution regarding this fact, which further creates doubts in the story of prosecution.
27. In view of the discussion made above, it is clear that the prosecution has miserably failed to prove the allegations levelled against the accused Narender Singh, more specifically, the recovery of the alleged illicit liquor is not proved beyound reasonable doubt. Therefore, this Court hereby accords the benefit of doubt to the accused Narender Singh not guilty of commission of the offence in question. Accused Narender Singh is thus, acquitted of the offence U/S 33 of Delhi Excise Act.
Digitally signed by SAURABH SAURABH GOYAL
GOYAL Date: 2024.09.17
16:25:11 +0530
FIR No. 165/2019 St. Vs. Narender
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28. The bail bonds, if any furnished by the accused at the time of commencement of trail stands cancelled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands cancelled. Case property if any, shall be disposed of after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.
Digitally signed by
SAURABH SAURABH GOYAL
GOYAL Date: 2024.09.17
16:25:16 +0530
Announced in the open court on (Saurabh Goyal)
this day i.e. 17th September, 2024 JMFC-01 South West District, Dwarka,
New Delhi
It is certified that this judgment contains 14 pages and each page bears my signatures.
Digitally signedSAURABH by SAURABH GOYAL GOYAL Date: 2024.09.17 16:25:19 +0530 (Saurabh Goyal) JMFC-01 South West District, Dwarka, New Delhi FIR No. 165/2019 St. Vs. Narender