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Delhi District Court

State vs . on 22 December, 2022

 IN THE COURT OF METROPOLITAN MAGISTRATE-07,
          SOUTH-WEST, DWARKA COURTS,
                      NEW DELHI
          Presided over by- Ms. Medha Arya, DJS

Cr. Case No.             -:   589/2021
Unique Case ID No.       -:   DLSW020026522021
FIR No.                  -:   144/2020
Police Station           -:   BHD Nagar
Section(s)               -:   33 Delhi Excise Act


 In the matter of -
 STATE
                                    VS.

 SUMAN
 W/o Rajveer
 R/o H. no. 84/1, Indra Market,
 Najafgarh, New Delhi.
                                                          .... Accused

1.

 Name of Complainant               : Ct. Suresh Kumar
2. Name of Accused                   : Suman
     Offence complained of or
3.                                   : 33 Delhi Excise Act
     proved
4. Plea of Accused                   : Not guilty
     Date of commission of
5.                                   : 23.02.2020
     offence
6. Date of Filing of case            : 11.01.2021
7. Date of Reserving Order           : 22.12.2022
8. Date of Pronouncement             : 22.12.2022
9. Final Order                       : Acquitted

Argued by -: Ld. Substitute APP for the State.

Ld. counsel for the accused.

BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX -

1. Pithily, it is the case of the prosecution that on 23.02.2020, at about 03 PM in front of house no. 84/1, Indra Market, Najafgarh, New Delhi, within the jurisdiction of PS BHD Nagar, accused was found in possession of illicit liquor i.e. 103 quarter bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only, without any license or permit for the same. As such, it is alleged that accused committed an offence punishable under Section 33 of the Delhi Excise Act, 2009 (hereinafter, "Excise Act").

INVESTIGATION AND APPEARANCE OF ACCUSED -

2. After registration of subject FIR, the investigating officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against accused was filed. After taking cognizance of the offence, accused was summoned to face trial for the abovesaid offence.

3. On her appearance, a copy of charge-sheet was supplied to her in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter,"CrPC"). On finding a prima facie case against the accused, charge under Section 33 Delhi Excise Act was framed against her. She pleaded not guilty to the charge and claimed trial.

PROSECUTION EVIDENCE -

4. The matter was then fixed for recording of PE. In support of its version, prosecution has examined a total of four witnesses-

 Witness       Name        Nature of testimony

PW-1          Ct Suresh He supported the case of the prosecution.
              Yadav/    He deposed that he was on patrolling

Recovery duty on 23.02.2020 with Ct Geeta, when witness / he reached the spot of incident and found complaina the accused in possession of illicit liquor.

nt He deposed that IO HC Jitender then reached the spot. He deposed that the illicit liquor was recovered from the possession of the accused by the IO, in his presence.He proved on record site plan Ex PW1/A, seizure memo of case property Ex. PW1/B, his statement Ex.

PW1/E, photocopy of Aadhar of accused Ex PW1/D. He also identified the sample case property, Ex P1, and relied upon the order of destruction of remaining case property bearing no 17411/2020/6133 dated 24.11.2020, Ex P2, as well as photograph of remaining case property Ex P3 . He was duly cross examined and discharged.

PW-2 Ct J.R He deposed that he was handed over the Meena case property on 17.03.2020, and he deposited the same in Excise Laboratory.

He deposed that during the time property was in his possession, no tampering was done with the same. He was cross examined by accused, and discharged.

She supported the case of prosecution.

PW3 She deposed that she was on patrolling HC Geeta duty with CT Suresh on 23.02.2020, and during the same, she found accused in possession of illicit liquor. Then IO HC Jitender came to spot, seized the case property, sealed the same with seal "JS", and arrested the accused. The witness correctly identified the accused. She was duly cross-examined and discharged.

ASI He supported the case of prosecution. He Jitender deposed about arrest of accused, and PW4 Singh/ seizure of case property, vide seizure Investigati memo Ex PW1/B. He deposed about on Officer codal formalities conducted by him. He identified the case property, Ex P1.

5. The remaining documents i.e. FIR no. 144/2020 PS BHD Nagar Ex. A1, certificate under Section 65B of Indian Evidence Act Ex. A2, DD Entries 35B and 37B Ex A3 and Ex A4, and Excise result dated 18.06.2020 Ex. A5 were put to the accused, and were admitted by her under Section 294 CrPC. Accordingly, the corresponding witnesses were dropped from the list of prosecution witnesses. PE was closed thereafter.

6. Thereafter, in order to accord an opportunity to the accused to personally explain the incriminating circumstances appearing in evidence against her, the statement of accused was recorded without oath under Section 313/281 CrPC. She submitted that she is innocent and has been falsely implicated in the present case. She stated that the recovery was planted on her. To a specific query, she stated that she does not wish to lead defence evidence in the affirmative.

7. The matter was then fixed for final arguments. Final arguments heard. Record perused. Considered.

8. In order to establish the offence under Section 33 of the Excise Act, the prosecution must fulfil all the essential ingredients of the offence. Section 33 of the Excise Act is Cr. Case No. 589/2021 State vs. Suman Page 4 of 13 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 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 lath rupees"

It has to be proved-

(i) accused was found in possession of case property.

(ii) The case property is illicit liquor of a description , the possession of which without any permit or license contravened the provision of law.

9. Record reveals that several gaps and loopholes have been pointed out by the accused in the case of prosecution, leading this Court to the conclusion that recovery of case property from the accused was not proved by it as per law.

10. It is the case of the prosecution that the alleged recovery of the case property was made from the accused near her house i.e. a residential area. The area of the alleged recovery, therefore, was presumably crowded. Despite this, no public witnesses were joined in the prosecution. The witnesses of the prosecution, PW1, PW3 and PW4 deposed on oath that despite availability of independent public witnesses, no such witnesses were joined in the investigation. PW1, PW3 and PW4 deposed that a request was made to public witnesses to join the investigation, but they refused, as a result of which no independent witnesses were joined in the investigation. Admittedly, however, IO did not serve any notice upon these witnesses consequent to this refusal.

11. Now, it is true that non-joining of independent witnesses cannot be a sole ground to discard the entire prosecution story, in view of the law laid down by the Hon'ble Supreme Court of India in Appabhai versus State of Gujarat AIR 1988 SC 696, evidence in each case has to be weighed in light of the peculiar factual matrix of the same. Non-joining of public witnesses, despite their easy availability, reflects lack of genuine efforts on the part of the prosecution, denting its case. The IO could have easily served notice in writing to the Cr. Case No. 589/2021 State vs. Suman Page 6 of 13 witnesses, to make them join the investigation. But not to be. Where the IO has failed to make genuine efforts to join public witnesses, veractity of the case of prosecution becomes doubtful. At this juncture, this court seeks guidance from the law laid down by the Hon'ble High Court of Delhi in Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC):-

"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 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".

12. Further, the present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by a police official namely Ct Suresh Yadav, who was on patrolling duty at the relevant time and place, as per the prosecution story. He deposed that he had made a departure entry before proceeding for his duty, but did not sign the register. This testimony doesn't support the case of prosecution. Police officials are under a statutory duty to mark Cr. Case No. 589/2021 State vs. Suman Page 7 of 13 their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be placed upon Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:

"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."

13. It is also evident from the record that prosecution has made no efforts whatsoever to dig out the source from which the illicit liquor was procured by the accused. Lack of any efforts on part of the police to interrogate the accused on these lines is also reflective of a shoddy investigation, benefit of which, must accrue to the accused.

14. The sample case property brought to the Court was sealed with the seal of "JS". However, the possibility of tampering with case property cannot be ruled out in view of the fact that the handing over of seal by the police officials which was used to deal the liquor bottles after taking samples therefrom, has not been proved by the prosecution. There is no evidence that the seal, after its use, was handed over to an independent person as per law. As such, a shadow of cloud looms over the prosecution case that recovery was planted upon the accused. Further, while PW2 stated that during the time he took the case property from the Malkhana and deposited the same with the lab, the same was not tampered with, the IO never deposed that at any time prior thereto, there was no tampering with the case property.

15. Further, the samples were sent for testing on 17.03.2020, despite the fact that the alleged recovery was made on 23.02.2020. The fact that the prosecution has failed to explain where the property was present during the intervening period of around 23 days also casts a shadow of doubt on the case of the prosecution. None of the witnesses examined by the prosecution have stated that the samples of illicit liquor taken for examination from the time they were taken and till the time the said samples were handed over to the Public Analyst, the samples were not tampered with. In this regard, Hon'ble Delhi High Court has held in Datu Ram v. State (Delhi) :1996(1) Crimes 604 : 1996(36) DRJ 527 : 1997(1) CCR 18as follows :

"In the State of Rajasthan v. Daulat Ram, 1980, Cr. Case No. 589/2021 State vs. Suman Page 9 of 13 C.C. Cases 83 (S.C), the Supreme Court observed that the prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the court could conclude that the seals remained intact throughout. Unfortunately, thiswarning seems to have fallen on deaf ears at least as far as this case is concerned.

3.Does the evidence as noticed above satisfy the requirement highlighted by the Supreme Court in Daulat Ram's case? The answer, to my mind, has necessarily to be in the negative.

4.The parcels were allegedly sealed at the spot by the Investigating Officer and if the Moharer Malkhana is to be believed the same were deposited with him by the said officer. However, the Investigating Officer no where says so. In any case, even if it be taken that the parcels were actually deposited by him, was it not for him to assure the Court that so long as they had remained in his possession they had not been tampered with? This, however, is not the end of the matter. The Investigating Officer nowhere says that he had filled the C.F.S.L. form nor is there anything, either in his statement or in the statement of the Moharer Malkhana or even in the entry made in the Register, that any such form was ever deposited. The Constable who took the sample parcel also no where speaks of his having deposited any such form with the C.F.S.L. There are judgments of this court in which it has been held that absence of such evidence would be fatal to the prosecution. Reference, in this connection may be made to Chameli Devi v. State, 1993 JCC 293, Mool Chand v. State, 1993 (2) Delhi Lawyer 14, Cr. Case No. 589/2021 State vs. Suman Page 10 of 13 Anoop Joshi v. State, 1992 (2) CC Cases 314, Jagdish Prasad v. State, 55(1994) DLT 315 and Munni Lal v. The State, 1994 IV AD (Delhi) 1099.

5.Last, but not the least, the report of the C.F.S.L. itself, the relevant portion of which has already been reproduced above, cannot be considered to be such as to inspire the confidence of the Court with regard to the seals on the sample parcel. As would be apparent though it does show that the parcel received was having " the seal impression as per specimen enclosed intact" we are not told as to what was the "specimen enclosed". This further takes away the sting from the prosecution version".

16. Similarly, in Chandra Wati v. State (Delhi) :

1991(44) DLT 31 : 1991 JCC 508 it was also held by Hon'ble Delhi High Court that the prosecution has to bring on record the link evidence to show that the sample of the recovery alleged to have been made by the police witness from the accused was analysed in the CFSL without it being tampered with by any one, failure of which is a ground in favour of the accused.

17. Ex P2 is the order of the Assistant Commissioner (Excise) dated 24.11.2020, whereby the case property of the present case has been ordered to be destructed. In Manjit Singh vs. State (2014) 214 DLT 646, the Hon'ble High Court of Delhi had observed that detailed panchnama containing the inventory should be prepared and photographs of the entire lot should be taken. It was further observed in Para No. 75 that the sample alongwith photographs and panchnama would be sufficient Cr. Case No. 589/2021 State vs. Suman Page 11 of 13 evidence during trial. In the present case, no panchnama was produced. Photographs of the entire lot of the case property were not produced, however, as is revealed by perusal of the document Ex P3. Even with respect to the photograph, PW4 admitted that the contents of the gunny bag are not visible in the photograph. The same only shows a bag, with no seal visible. PW-1 has conceded to this effect in their testimonies. In this regard, even though Section 60 of the Excise Act provides that non production of case property does not affect the conviction, however, at the same time, the provision also lays down that samples and photographs of the confiscated property are to be preserved to meet evidentiary requirements. Without any proper photographs, the standard cannot be said to be met beyond reasonable doubt.

18. The fact that seizure memo of the case property Ex PW1/B mentions the FIR number, even though the seizure was made prior in time as per the case of prosecution, further dents the case of prosecution. No cogent explanation was given by the IO/PW4 to explain this discrepancy.

19. The fact that the IO or any other recovery witness did not take any photographs of the case property at the time of recovery, despite easy availability of camera-phones, further casts a shadow of doubt on the case of prosecution.

20. When considered cumulatively, these factors show that a lot of gaps and crevices exist in its version, and the benefit of this accrues to the accused Suman W/o Sh. Rajveer, who Cr. Case No. 589/2021 State vs. Suman Page 12 of 13 thus stands acquitted of the offence punishable under section 33 Delhi Excise Act, 2009.

Pronounced in open court on 22.12.2022 in presence of accused person.

This judgment contains 13 pages and each page has been signed by the undersigned. Digitally signed by MEDHA MEDHA ARYA ARYA Date:

2022.12.23 16:36:07 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 22.12.2022 Cr. Case No. 589/2021 State vs. Suman Page 13 of 13