Delhi District Court
State vs . Jaggu Ram on 31 August, 2021
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 731/16
U/s : 33/38 Delhi Excise Act
P.S. : Ranhola
State Vs. Jaggu Ram
JUDGMENT:
a)CNR No. : DLWT02-001983-2017
b) Sl. No. of the Case : 1045/17
c) Name & address of the : Rajbir Singh
complainant No. 1083/W
PS Ranhola, Delhi
d) Name & address of : Jaggu Ram
accused S/o Sh. Ratan Lal
R/o H. No. R3, A2/56, Mohan
Garden, Delhi
e) Date of Commission of : 02.10.2016
offence
f) Offence complained off : U/s 33/38 Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Acquitted
i) Date of such order : 31.08.2021
Date of Institution : 10.02.2017
Final arguments heard on : 31.08.2021
Judgment Pronounced on : 31.08.2021
FIR No: 731/16 State v. JagguRam Page No.1/12
AAKASH Digitally signed by
AAKASH SHARMA
SHARMA Date: 2021.08.31
15:04:03 +05'30'
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 02.10.2016 at about 05.15 PM at H. No. R3/A2/56, Mohan Garden, New Delhi accused was found in possession of 10 peties of illicit liquor out of which 3 peties were containing 48 quarter bottles of 'Party Special Delux Whiskey for sale in Haryana only', 4 peties were containing 48 quarter bottles of 'Besto Whiskey for sale in Haryana only', 2 peties were containing 48 quarter bottles of 'Impact Grain Whiskey for sale in Haryana only' and 1 peti was containing 50 quarter bottles of 'Murthal No. 1 Masaledar Desi Sharab for sale in Haryana only'without any license or permit.
2. After investigation, challan for offence U/s 33/38 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
FIR No: 731/16 State v. JagguRam Page No.2/12
AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:04:21 +05'30'
3. Charge for committing the offence punishable under Section 33/38 Delhi Excise Act was framed against accused on 25.10.2017, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as two witnesses.
5. PW1 Ct. Rajbir is the complainant who deposed that on 02.10.2016, he alongwith Ct. Deepak were patrolling the area of Beat No. 3, R-3, Mohan Garden and when he reached at Mohan Garden, one secret informer informed him that one person namely Jaggu is in possession of illicit liquor and if an immediate raid is conducted, he can be apprehended with illicit liquor at his above mentioned address. PW1 shared this information with Ct. Deepak and thereafter PW1 alongwith Ct. Deepak approached the house of the accused and they saw that accused Jaggu was carrying 1 gattapeti on his shoulder and was taking the same inside his house. PW1 checked the aforesaid gattapeti which was containing FIR No: 731/16 State v. JagguRam Page No.3/12 Digitally signed AAKASH by AAKASH SHARMA SHARMA Date: 2021.08.31 15:04:34 +05'30' illicit liquor and 9 gattapeties were also lying near the house of the accused. He informed about it to the Duty Officer and asked to send some IO on the spot. After some time ASI Sube Singh came to the spot to whom PW1 handed over the custody of accused alongwith illicit liquor. IO checked the above said 3 gattapeties which were found containing 48-48 quarter bottles of 'Party Special Delux Whiskey for sale in Haryana only', 4 peties containing 48-48 quarter bottles of 'Besto Whiskey for sale in Haryana only', 2 gattapeties containing 48-48 quarter bottles of 'Impact Grain Whiskey for sale in Haryana only' and 1 gattapeti containing 50 quarter bottles of 'Murthal No. 1 Masaledar Desi Sharab for sale in Haryana only'. IO asked 4-5 public persons to join the investigation but they refused to join the investigation and left the spot without disclosing their names and addresses. IO took out 2-2 sample bottles from each gattapeti and remaining quarter bottles were put in the same gattapeti and were sealed with the seal of 'SS'. Gatta FIR No: 731/16 State v. JagguRam Page No.4/12 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:04:47 +05'30' peties were given serial No. 1 to 10 and sample bottles were given No. P1 to P20. The mouths of the samples were properly sealed with the seal of 'SS'. Form M29 was prepared. IO recorded the statement of PW1 vide Ex.PW1/A and handed over the same to PW1 which he took to PS, got the case registered and came back with copy of FIR and original rukka. The seizure memo of the case property was Ex.PW1/B. Thereafter IO arrested and conducted his personal search vide Ex.PW1/C and PW1/D. IO also recorded disclosure statement of accused vide Ex.PW1/E. IO prepared the site plan of the spot vide Ex.PW1/F. Thereafter, case property and accused were brought to the PS. The sample bottles were marked as Ex.P-1 to Ex.P-4. Confiscation order dated 29.06.2017 with the order of destruction dated 16.07.2017 with the report and its certificate under the seal and signatures of the SHO PS Ranhola along with photographs containing images of recovered quarter bottle of illicit liquor and the white Katta in which the gattapeties FIR No: 731/16 State v. JagguRam Page No.5/12 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:05:02 +05'30' were packed were marked as Ex.P-5 (colly) and Ex.P-6 (colly).
6. PW2 ASI Sube Singh is the IO of the case. He deposed that on 02.10.2016, he received DD No. 36B. He reached at the spot and met complainant / PW1 Ct. Rajbir and Ct. Deepak who produced accused Jaggu Ram and case property i.e. 1 peti containing illicit liquor. IO recorded the statement of complainant / PW1 Ex.PW1/A. IO requested public persons to join the investigation of the present case but none agreed and refused to join the investigation citing their personal reasons. IO found 9 peti of liquor in front of R-3-A2/56, Mohan Garden which were counted and there were a total of 10 peties of different brands. 3 peties were found containing quarter bottles of 'Party Special Delux Whiskey for sale in Haryana only', 4 peties containing quarter bottles of 'Besto Whiskey for sale in Haryana only', 2 peties containing quarter bottles of 'Impact Grain Whiskey for sale in Haryana only' and 1 peti FIR No: 731/16 State v. JagguRam Page No.6/12 Digitally signed AAKASH by AAKASH SHARMA SHARMA Date: 2021.08.31 15:05:15 +05'30' containing quarter bottles of 'Murthal No. 1 Masaledar Country made liquor for sale in Haryana only' were seized. IO gave serial no. 1 to 10 to all the 10 peties and serial no. 1 to 3 was assigned to 'Party Special Delux Whiskey', 4 to 7 assigned to 'Besto Whiskey' 8 and 9 to Impact Grain Whiskey and 10 to 'Murthal No. 1 Masaledar Country made liquor'. Serial no. 1 to 9 peti contained 48 quarters and serial no. 10 peti contained 50 quarter bottles. 2-2 sample bottles from each of the 10 peties were taken out and were marked S. No. P1 to P20. The sample bottles were sealed on the mouth with white cloth and were sealed with the seal of 'SS' and thereafter seal was handed over to Ct. Rajbir. Thereafter PW2 / IO prepared seizure memo vide Ex.PW1/B and Form M-29 was filled vide Ex.PW2/A. IO recorded tehrir vide Ex.PW2/B and the same was handed over to PW1 Ct. Rajbir for getting FIR registered. IO prepared site plan at the instance of PW1 vide Ex.PW1/F. IO arrested accused Jaggu Ram vide Ex.PW1/C and he was personally searched vide Ex.PW1/D and his disclosure statement was recorded vide Ex.PW1/E. Thereafter, IO FIR No: 731/16 State v. JagguRam Page No.7/12 Digitally signed AAKASH by AAKASH SHARMA SHARMA Date: 2021.08.31 15:05:29 +05'30' submitted letter for disposal of case property to the Excise Department vide Ex.PW2/C. Accused was produced in court and his JC remand was taken vide Ex.PW2/D.
7. After completion of prosecution evidence, all the incriminating evidence was put to accused u/s 313 Cr.P.C and his explanation was recorded, wherein he denied all the incriminating evidence against him. Accused chose not to lead DE.
8. The accused admitted FIR alongwith certificate u/s 65B of Indian Evidence Act, DD entry No. 36B dated 02.10.2016, statement of photographer Sh. Vijay, statement of Ct. Deepak, chemical examination report vide Ex.A-1 to Ex.A-6 u/s 294 Cr.P.C respectively.
9. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
FIR No: 731/16 State v. JagguRam Page No.8/12 Digitally signed
AAKASH by AAKASH SHARMA SHARMA Date: 2021.08.31 15:05:43 +05'30'
10. It is a settled proposition of law that the burden of proof rests on the prosecution whereas the accused only needs to show reasonable doubt in his behalf. It is noticed that no independent material witness has deposed on behalf of prosecution. The testimonies available on record have been deposed by solely police witnesses. Therefore, the testimonies ought to be considered very carefully. It is stated by PW1 that PW2/IO asked 4-5 public persons to join the raid but none of them joined the search & seizure proceedings and they left without disclosing their names and addresses. That the IO did not note down the names of the public persons who refused to cooperate in the seizure. There is no mention of the fact why no notice was given by the IO to the public persons to join the investigation since as such public persons are bound to cooperate with the IO on the legitimate request thereof. No independent witness has thus deposed on behalf of prosecution. This is problematic for the case of the prosecution considering the fact that the raid was conducted FIR No: 731/16 State v. JagguRam Page No.9/12 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:05:57 +05'30' by PW1 based on tipoff from secret informer and PW2 has also deposed that public was present at the spot but refused to witness the seizure. It appears that the investigating agency had sufficient means and time to include independent public persons/respectable persons of the locality to witness the search and seizure. Although it is no doubt true that not in every case testimonies of police officials are to be looked upon with suspicion and as unworthy of reliance but the failure of the investigating agency to join witnesses especially when they are available or their presence can reasonably be secured with minimum efforts casts a doubt on the authenticity of the version put forth by the investigating agency. Reliance is placed on the Hon'ble Delhi High Court decision in Nanak Chand V. State of Delhi, 1991 JCC(1).
11. It is also settled proposition that failure on the part of investigating agency to initiate action against such public person who does not join the investigation upon being served a notice to do so casts a doubt and is not worthy of credence. FIR No: 731/16 State v. JagguRam Page No.10/12 Digitally signed
AAKASH by AAKASH SHARMA SHARMA Date: 2021.08.31 15:06:11 +05'30' Reliance is placed on the Hon'ble Punjab and Haryana High Court decision in Roop Chand V. State of Haryana, 1999(1) CLR69. Accordingly, an adverse inference is drawn u/s 114(g) of Indian Evidence Act that such evidence, if produced would have been unfavourable to the case of the investigating agency which is why no independent witness was made by the IO to the alleged seizure. It is a settled proposition of law that the burden on prosecution is to prove its case beyond reasonable doubt. Having considered the record of the case, it would be unsafe to convict the accused without corroboration from an independent witness. The investigation officer ought to have included an independent witness during the seizure to bring credibility to the seizure of case property especially when the raid was conducted upon tipoff from secret informer and public persons were present at the spot where seizure was effected. Another fact which creates doubt on the version of the prosecution is that PW2/IO has admitted in his cross-examination that the Tehrir Ex. PW2/B contains overwritings at a number of places and no FIR No: 731/16 State v. JagguRam Page No.11/12 AAKASH Digitally by AAKASH signed SHARM SHARMA Date: 2021.08.31 A 15:06:24 +05'30' reasons were explained for the same. It is no doubt true that minor irregularities may appear or creep in investigation proceedings and the prosecution case ought not be disbelieved per se based on them. However, it is also to be borne in mind that Court ought to be circumspect when no independent material witness is joined by the investigating agency in the search and seizure.
12. In view of my discussion herein above, it is held that prosecution has not been able to prove its case against the accused for the charged offences beyond reasonable doubt. As a result of this, accused Jaggu Ram is hereby acquitted of the charged offences u/s 33/38 Delhi Excise Act.
Digitally signed by AAKASH AAKASH SHARMA SHARMA Date: 2021.08.31 15:06:39 +05'30' Dictated & Announced (AAKASH SHARMA) in Open Court MM-08/West/Delhi On the 31st day of August, 2021 31.08.2021 FIR No: 731/16 State v. JagguRam Page No.12/12