Delhi District Court
State vs . Shiv Kumar @ Ravi on 31 January, 2020
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MAGISTRATE-02 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.88/17
PS Timarpur
State Vs. Shiv Kumar @ Ravi
U/s 33 Delhi Excise Act
CIS No.6129/18
CNR No. DLCT-02-015454/18
JUDGMENT
(a) Sr. No. of the Case 6129/18
(b) Date of offence 24.02.2017
(c) Complainant HC Satender, No. 2750/N, PS Timarpur,
Delhi.
(d) Accused Shiv Kumar @ Ravi S/o. Sh. Bishan Singh,
R/o. Jhuggi No. N-64/331, Indira Basti,
Timarpur, Delhi.
(e) Offence 33 Delhi Excise Act
(f) Plea of accused Pleaded Not guilty
(g) Date of Institution 28.04.2018
(h) Final Order Acquitted
(i) Date when judgment was 31.01.2020
reserved
(j) Date of judgment 31.01.2020
1. The present FIR was registered at PS Timarpur against the accused namely Shiv Kumar @ Ravi for the offence U/s 33 Delhi Excise Act.
2. The allegations against the accused that on 24.02.2017, at about 1:30 pm, at N- 64/331, Indira Basti, Timarpur, Delhi, accused was found carrying illicit liquor in two FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.1 of 18 white colour sacks containing four petties, two gatta petties, one petti beer containing n12 bottles and one bag of light yellow colour having green strips containing 56 quarter bottles of illicit liquor and he was caught on the spot with the aforementioned liquor, without any licence, permit or pass and in contravention of the notification issued by Delhi Administration. According to prosecution, the accused thereby committed offence punishable under Section 33 Delhi Excise Act, 2009.
COURT PROCEEDINGS
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused Shiv Kumar @ Ravi in compliance of Section 207 Cr.P.C.
CHARGE
4. Thereafter, charge under Section 33 of Delhi Excise Act was framed against the accused Pradeep Thakur vide order dated 28.01.2019 passed by Ld. Predecessor to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
5. Vide order dated 28.01.2020, in compliance with the provisions of Section 294 Cr.P.C the accused admitted genuineness of documents regarding FIR Ex. PA-1, DD No. 25- B Ex. PA-2, RC No. 120/21/17 Ex. PA-3 and report of chemical examiner Ex. PA-4. In view of admissions made, the evidence of DO/HC Dinesh, Brijender Singh (Deputy Chemical Examiner) and Ram Singh (Asst. Chemical Examiner) were dispensed with.
PROSECUTION EVIDENCE FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.2 of 18
6. In order to prove its case, prosecution has examined 03 witnesses.
7. PW-1 is Ct. Harpal, who deposed that on 24.02.2017, he was posted at PS Timapur as Ct. On that day, he was on patrolling duty from 9:00 am to 5:00 pm along with HC Satender, that at about 1:30 pm, while patrolling, when they reached in the jhuggis of Indra Basti, one secret informer met them and informed that one person is standing with illicit liquor and pointed towards that person, that on seeing them that person started running, that on the identification of the secret informer, he with the help of accompanied staff apprehended that person and asked him about the contents of two plastic sack bags to which he did not give any satisfactory reply, that after interrogation, the name of that person was revealed as Ravi, that they opened the bags and checked them, that on checking the same, they found one of the plastic sack bag containing two cardboard boxes, that one of the cardboard box was containing 30 quarter bottles of 180 ml of illicit liquor bearing the label of "Impact Grain Whiskey for sale in Haryana only" and the other cardboard box was containing 30 quarter bottles of 180 ml of illicit liquor bearing the label of "Officer's Choice Blue Whiskey for sale in Haryana only", that the 2nd plastic sack bag was containing two cardboard boxes and each of the boxes were containing 48 quarter bottles each of 180 ml of illicit liquor bearing the label of "Impact Grain Whiskey for sale in Haryana only", that at the instance of Ravi, one bag of yellow colour with green strips were recovered, that on checking the bag it was found containing 56 quarter bottles of 180 ml of illicit liquor bearing the label of "Rangeela Santra Masledar Desi Sharab for sale in Haryana only"
and one cardboard box containing 12 full bottles bearing the label of "Kingfisher Super Strong for sale in Delhi" was also recovered at the instance of accused Ravi, that in the meantime, SI Shashank along with other staff from Excise Department also reached at the spot and disclosed same information, that at about 1:50 pm, he gave the information to the PS and IO/ASI Johry came at the spot, that he and HC Surender handed over the accused and the recovered case property to the IO, that IO requested 3-4 public persons to join the investigation, however, none of them agreed and left the FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.3 of 18 place without disclosing their name and addresses, that IO separated one bottle of each brand as sample from each of the cardboard boxes/bag and the remaining bottles were put in the same boxes/bag, that the cardboard boxes were given as S.No. 1 to 8 and the samples were given as S.No.1-A to 8-A, that the cap of the samples were sealed with the seal of "JS" and each of the bags were also sealed separately with the seal of 'JS', that case property was seized vide seizure memo Ex.PW1/A, that IO filled the form no.M-29, that the seal after use was handed over to him, that he prepared rukka and handed over the same to Ct. Rajdeep with direction to take the same to PS for getting the FIR registered, that he along with Ct. Rajdeep took the same to PS and handed over the same to DO for registration of FIR, that after registration of FIR, DO handed over the copy of FIR and original rukka to Ct. Rajdeep to hand over the same to ASI Johri Singh for further investigation, that they return to the spot and Ct. Rajdeep hand over the same to IO/ASI Johri Singh, that IO arrested the accused vide arrest memo Ex. PW-1/B, that he along with the IO, accused and other staff and case property return to the PS, that case property was deposited in the malkhana and the accused was lodged in the lock-up after his medical examination, that IO recorded his statement in this regard. Thereafter, MHC(M) PS Timarpur appeared and apprised the Court that the case property has been confiscated vide order dated 02.05.2019 of Asst. Commissioner Excise and produced the order regarding confiscation of the case property recovered in the present matter, that she also produced the order dated 02.05.2019 vide which the case property was destroyed and also the the photographs of the same, that the order of confiscation is Ex. PW-1/C and order of destruction is Ex. PW-1/D and the relevant entry is at point X to X-1. MHC(M) also submitted that samples quarter liquor bottle were not taken out from the case property at the time of destruction of the case property. She was shown the photographs of the same, witness correctly identified the same belonging to the liquor seized from the accused and also identified the bag in the photograph, that two photographs are Ex.PW1/E (colly), that the bag is Ex. P-1 and the bottles are Ex. P-2 (colly).
8. In the cross examination, PW-1 deposed that his statement was recorded by the IO at FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.4 of 18 the PS on 24.02.2017, however, he do not remember the time, that in his presence the statement of HC Satender was recorded in the PS, that he do not remember as to how many times statement of HC Satender was recorded. He denied that he know the accused prior to the incident. He further deposed that the jhuggi No. 64-331 belongs to accused Shiv Kumar, that the distance from the jhuggi no. 64/331 and the spot is about 5-10 steps. He admitted that there are other jhuggis near jhuggi no. 64/331. He further deposed that public persons have left the spot, that IO has ask the public persons to join the investigation, however, they left the place without disclosing their name and addresses, that he remained at the spot for 4 to 5 hours, that he do not remember which document was prepared by the IO at first. He denied that no writing work was done at the spot. He further deposed that he do not remember at what time rukka was taken by the Ct. Rajdeep but he return back with the rukka at around 6:00 pm, on 24.02.2017, that he also accompanied the Ct. Rajdeep when he took the rukka to the PS for registration of the FIR, that he return back to the spot, however, he do not remember the time when he again reached at the spot.
9. He further deposed that he cannot the tell the weight of case property. He admitted that accused cannot run along with case property as it was heavy. He further deposed that IO had prepared the arrest memo and personal search memo of accused in his presence, however, he do not remember the time of the same, that he do not remember whether IO gave the information of arrest of accused to his family, that IO has prepared the site plan in his presence, however, he do not remember the exact time, that he do not remember whether IO took the sign of accused or any public person on the site plan in his presence, that he do not remember where the seizure memo Ex. PW-1/A was prepared, that he also do not remember where IO took his signature as a witness in Ex. PW-1/A, that he do not remember whether disclosure statement of accused was recorded in his presence or not by the IO, that he do not remember the time when he left the spot finally, that the case property was sealed at the spot with the seal of 'JS' by the IO in his presence, that he do not remember when he handed over the seal to IO, that he joined the PS Timarpur in the year 2016 and got FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.5 of 18 transferred from there August, 2018, that the distance between PS and Jhuggi No. 64/331 is about half kilometer. He admitted that he had given the evidence in other case in which Shiv Kumar is accused. He further deposed that he do not know whether the same is disposed of or not, that he do not know the particulars of the said case. He denied that he is deposing falsely at the instance of IO, that he has not joined the investigation of the present case along with the IO, that no writing work was done at the spot, that nothing was recovered from the possession of the accused, that all the investigation was conducted while sitting in the PS, that he is deposing falsely.
10. PW-2 is HC Satender, who deposed that on 24.02.2017, he was posted at PS Timapur as HC on that day, he was on patrolling duty from 9:00 am to 5:00 pm along with Ct. Harpal, at about 1:30 pm, while patrolling, when they reached in the jhuggis of Indra Basti, one secret informer met them and informed that one person is standing with illicit liquor and pointed towards that person, that secret informer was discharged from the spot, that on seeing them that person started running, that on the identification of the secret informer, he with the help of accompanied staff apprehended that person and asked him about the contents of two plastic sack bags to which he did not give any satisfactory reply, that after interrogation, the name of that person was revealed as Ravi, that they opened the bags and checked them, that on checking the same, they found one of the plastic sack bag containing two cardboard boxes, that one of the cardboard box was containing 30 quarter bottles of 180 ml of illicit liquor bearing the label of "Impact Grain Whiskey for sale in Haryana only" and the other cardboard box was containing 30 quarter bottles of 180 ml of illicit liquor bearing the label of "Officer's Choice Blue Whiskey for sale in Haryana only", that the 2 nd plastic sack bag was containing two cardboard boxes and each of the boxes were containing 48 quarter bottles each of 180 ml of illicit liquor bearing the label of "Impact Grain Whiskey for sale in Haryana only", that at the instance of Ravi, one bag of yellow colour with green strips were recovered, that on checking the bag it was found containing 56 quarter bottles of 180 ml of illicit liquor bearing the label of "Rangeela Santra Masledar Desi Sharab for sale in Haryana only" and one cardboard box containing 12 full bottles FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.6 of 18 bearing the label of "Kingfisher Super Strong for sale in Delhi" was also recovered at the instance of accused Ravi, that in the meantime, SI Shashank along with other staff from Excise Department also reached at the spot and disclosed same information, that at about 1:50 pm, they gave the information to the PS and IO/ASI Johry and Ct. Rajdeep came at the spot, that they handed over the accused and the recovered case property to the IO, that IO requested 3-4 public persons to join the investigation, however, none of them agreed and left the place without disclosing their name and addresses, that IO separated one bottle of each brand as sample from each of the cardboard boxes/bag and the remaining bottles were put in the same boxes/bag, that the cardboard boxes were given as S.No. 1 to 8 and the samples were given as S.No.1-A to 8-A, that the cap of the samples were sealed with the seal of "JS" and each of the bags were also sealed separately with the seal of 'JS', that case property was seized vide seizure memo Ex.PW1/A, that IO filled the form No. M-29, that the seal after use was handed over to him, that IO prepared rukka and handed over the same to Ct. Rajdeep with direction to take the same to PS for getting the FIR registered, that he along with Ct. Harpal took the same to PS and handed over the same to DO for registration of FIR, that after registration of FIR, DO handed over the copy of FIR and original rukka to Ct. Rajdeep to hand over the same to ASI Johri Singh for further investigation, that they return to the spot and Ct. Rajdeep hand over the same to IO/ASI Johri Singh, that IO arrested the accused vide arrest memo Ex. PW-1/B, that he along with the IO, accused and other staff and case property return to the PS, that case property was deposited in the malkhana and the accused was lodged in the lock-up after his medical examination, that IO recorded his statement in this regard, that the order of confiscation is Ex. PW-1/C and order of destruction is Ex. PW- 1/D and the relevant entry is at point X to X-1 in the statement of PW-1, that witness was shown the photographs, that witness correctly identified the same belonging to the liquor seized from the accused and also identified the bag in the photograph, that two photographs are Ex.PW1/E (colly), that the bag is Ex. P-1 and the bottles are Ex. P-2 (colly).
FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.7 of 18
11. In the cross examination, PW-2 deposed that he left PS for patrolling duty at about 9:00 am, that he made DD entry for his departure for patrolling duty, however, he do not remember the same, that he reached along with HC Harpal at the Jhuggi No. N- 64/331 at about 1:30 pm. He admitted that the area of Jhuggi No. N-64/331 are total jhuggi area and residential area. He further deposed that he joined the PS Timarpur since November, 2015 and got transferred in the year 2018, however, he do not remember the date and month of his transfer. He admitted that he knew accused prior to the incident, that he had given his deposition in other cases also which are pending against the accused Shiv Kumar @ Ravi. He further deposed that he cannot tell about those cases in which he has deposed against accused Ravi, whether they are pending or disposed off.
12. He further deposed that first of all, they reached near the accused, said accused was standing near the katta. He admitted that the accused was trying to run away from the spot along with both kattas. He further deposed that he cannot tell the weight of both the kattas. He denied that accused was not standing with both the kattas and it is not possible for the accused to run with both the kattas due to its heavy weight. He further deposed that he remained at the spot for about one and half hour, that he do not remember when he left the spot. He admitted that all the writing work done was at the spot. He deposed that he cannot tell which documents were firstly prepared in his presence by the IO. He denied that he do not know the same as he has not joined the investigation along with the IO. He further deposed that the rukka was prepared by the IO in his presence and it was also written in the handwriting of the IO, that he do not know the time when the rukka was prepared by the IO, that except this rukka, IO recorded his statement under Section 161 Cr.P.C, that he do not remember the place and time when and where IO recorded his statement under Section 161 Cr.P.C, that he read over his statement under Section 161 Cr.P.C and signed it, that site plan was prepared at his instance but he do not remember whether IO obtained his signatures on the site plan or not, that he cannot tell the time of preparing of site plan by the IO, that he do not know whether IO prepared the seizure memo of case property, that at FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.8 of 18 the time of proceedings, 5-10 public persons were gathered at the spot, that IO did not serve any notice to the public persons and IO also did not record the name and addresses of those public persons in his presence, that he do not remember whether IO prepared the arrest memo and search memo preparing the rukka or after preparing the rukka, that he do not remember who took the rukka to PS for registration of FIR, that he also do not remember who came back at the spot after registration of the FIR, that he do not know whether IO gave the information to the relative of accused regarding the arrest of accused, that he do not know whether IO recorded the disclosure statement of accused, that he do not know whether anything recovered from the personal search of the accused, that the case property was sealed with the seal of 'JS', however, he do not remember to whom IO handed over the said seal. He admitted that Jhuggi No. N-64/331 is concerned to the accused. He voluntarily deposed that he do not know whether the said Jhuggi is concerned to the accused. He further deposed that he do not remember the time when after completion of all the proceedings at the spot, they reached at the PS. He denied that he is deposing falsely at the instance of IO/SHO, that he was not present at the spot, that nothing has been recovered from the possession of the accused, that all the proceedings were done by the at the PS by the IO, that accused was lifted from his jhuggi and after that falsely implicated in the present case.
13. PW-3/ASI Johri Singh, who deposed that on 24.02.2017, he was posted at PS Timapur as ASI On that day, he was on patrolling duty along with Ct. Rajdeep, that at about 1:30 pm, while patrolling, when they reached in the jhuggis of Indra Basti, they saw that HC Satender and Ct. Harpal apprehended one accused along with illicit liquor, that after interrogation, the name of that person was revealed as Ravi, that they opened the bags and checked them, that on checking the same, they found one of the plastic sack bag containing two cardboard boxes, that one of the cardboard box was containing 30 quarter bottles of 180 ml of illicit liquor bearing the label of "Impact Grain Whiskey for sale in Haryana only" and the other cardboard box was containing 30 quarter bottles of 180 ml of illicit liquor bearing the label of "Officer's Choice Blue Whiskey for sale in FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.9 of 18 Haryana only", that 2nd plastic sack bag was containing two cardboard boxes and each of the boxes were containing 48 quarter bottles each of 180 ml of illicit liquor bearing the label of "Impact Grain Whiskey for sale in Haryana only", that at the instance of Ravi, one bag of yellow colour with green strips was recovered, that on checking the bag it was found containing 56 quarter bottles of 180 ml of illicit liquor bearing the label of "Rangeela Santra Masledar Desi Sharab for sale in Haryana only" and one cardboard box containing 12 full bottles bearing the label of "Kingfisher Super Strong for sale in Delhi" was also recovered at the instance of accused Ravi, that in the meantime, SI Shashank along with other staff from Excise Department also reached at the spot and disclosed same information, that he requested 3-4 public persons to join the investigation, however, none of them agreed and left the place without disclosing their name and addresses, that he separated one bottle of each brand as sample from each of the cardboard boxes/bag and the remaining bottles were put in the same boxes/bag, that the cardboard boxes were given no. as S.No. 1 to 8 and the samples were given as S.No.1-A to 8-A, that the cap of the samples was sealed with the seal of "JS" and each of the bags were also sealed separately with the seal of 'JS', that case property was seized vide seizure memo Ex.PW1/A, that he filled the form no. M-29 which is Ex. PW-3/A, that the seal after use was handed over to him, that IO prepared rukka which is Ex. PW-3/B and handed over the same to Ct. Rajdeep with direction to take the same to PS for getting the FIR registered, that Ct. Rajdeep took the same to PS for registration of FIR, that FIR got registered and Ct. Rajdeep return to the spot and Ct. Rajdeep hand over the same to him for further investigation, IO arrested the accused vide arrest memo Ex. PW-1/B, that he also conducted the personal search of the accused vide seizure memo Ex. PW-1/C, that he prepared site plan which is Ex. PW-3/C, that medical examination of the accused was conducted at the hospital and thereafter, they came back to the PS and deposited the seal of 'JS' in the malkhana and the accused was put in the lockup, that he recorded the statements of witnesses, that the order of confiscation is Ex. PW-1/C and order of destruction is Ex. PW-1/D and the relevant entry is at point X to X-1 in the statement of PW-1, that witness was shown the photographs, that witness correctly identified the same belonging to the FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.10 of 18 liquor seized from the accused and also identified the bag in the photograph, that two photographs Ex.PW1/E (colly), that the bag is Ex. P-1 and the bottles are Ex. P-2 (colly).
14. In the cross examination, PW-3 deposed that he received the information regarding the present case at about 1:30-2:00 pm on 24.02.2017, that he made a DD entry No. 25-B at about 1:30-2:00 pm regarding the said information, that he reached at the spot by foot along with Ct. Rajdeep when they were on patrolling duty, that they had received the information by some public person regarding the incident, that he cannot tell the name of person who gave the information regarding the incident. He admitted that jhuggi no. N-64/331 is in the name of accused Shiv Kumar @ Ravi, that the family members of the accused are residing in the said jhuggi, that the distance between the jhuddi and spot is about 8-10 feet, that he remained at the spot for about 3-4 hours, that firstly, FIR was registered. He admitted that there are so many jhuggies situated near the jhuggi no. N-64/331, Indra Basti, Timarpur, Delhi and spot. He further deposed that at the time of apprehension of accused, 5-10 public persons were present at the spot, that he had not served any notice to the public persons to join the investigation of the present case. He admitted that accused is known to him prior to the incident of the present case. He further deposed that he do not remember which document prepared by him firstly, that he handed over the seal after use to Ct. Harpal, that Ct. Harpal handed over seal of 'JS' to him at the spot only, that he do not remember the time when he recorded the statement of witnesses under Section 161 Cr.P.C. He denied that he is deposing falsely at the instance of senior officers of PS Timarpur, that nothing has been recovered from the possession of the accused, that all the proceedings were done by him at the PS, that the accused was lifted from his jhuggi and after that falsely implicated in the present case, that all the proceedings were conducted while sitting in the PS, that he is deposing falsely.
15. It is pertinent to mention here that vide separate statements of Ld. APP for the State dated 28.01.2020 and 30.01.2020 witnesses namely SI Shashank and Ct. Rajdeep FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.11 of 18 were dropped from the list of witnesses as other witnesses have already been examined on the same lines.
16. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
17. Statement of the accused Shiv Kumar under Section 313 Cr.PC was recorded vide order dated 31.01.2020 by putting entire incriminating evidence to the accused. He denied the allegations against him and stated that he has been falsely implicated in the present case. Accused chose not to lead DE, accordingly, Defence evidence was closed and matter was fixed for final arguments.
18. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
19. In the case in hand the accused Shiv Kumar @ Ravi is charge for the offence u/s 33 Delhi Excise Act.
20. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant/ state in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed as follows:-
FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.12 of 18
21. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. Perusal of the record shows that the place of apprehension of accused alongwith illicit liquor was a residential place and many jhuggies were situated there despite that no efforts made by the IO to join the public/independent witness in the case in hand. It is apparent from the testimony of PWs that all the proceedings regarding seizure and sealing of case property was done by police officials who were posted in the same police station and not by any independent witness which makes it highly probable that the entire proceeding were conducted at the police station, that the case property was tampered with and that the alleged recovery was planted upon the accused at the police station.
22. PWs have categorically deposed about presence of independent public witnesses as there were many jhuggis along with the jhuggi of accused Shiv Kumar however, no sincere efforts have been made to join them in investigation.
23. Furthermore, PW-3 categorically deposed that family members of the accused were residing in the Jhuggi, however, none of them joined in the investigation or at the time of recovery for the reasons best known to the investigating agency.
24. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining independent witnesses.
25. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.13 of 18
26. 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 place was residential area and one or two persons from the locality could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the public persons had declined to join the raiding party, the police could have later on taken legal action against such persons 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".
27. In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
28. Considering the aforesaid observations made by the Higher Courts, the omissions /failure on the part of investigating agency to join independent public witnesses creates reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
29. Furthermore, the testimony of PWs shows that seizure memo was prepared before FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.14 of 18 sending the rukka. However, perusal of the said document clearly shows that the FIR number and other particulars of the present case are mentioned on the said document. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those document which were prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
30. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.15 of 18 accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
31. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
32. It is pertinent to mention here that investigation of the IO is silent regarding the source of liquor and IO had not inquired from the accused about the source of liquor recovered from the accused for the reasons best known to him.
33. It is also pertinent to note here that case property was confiscated and destroyed vide order dated 02.05.2019, however, samples of aforesaid quarter bottles were not taken out from the case property which shows bad investigation on the party of investigating agency and accordingly, same is not proved in accordance with law.
34. PW-1 and PW-2 categorically deposed in their examination in chief that after seeing them accused tried to ran away from the spot, however, in the cross examination PW-1 categorically deposed that accused cannot run along with the case property as it was heavy but PW-2 denied the suggestion that accused cannot run with case property as FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.16 of 18 it was heavy, thereby contradicting testimony of each other.
35. PW-1 categorically deposed in his examination in chief that he gave the information in the police station regarding the arrest of accused Shiv Kumar @ Ravi along with case property and thereafter, ASI Johri Singh came at the spot. However, as per the testimony of PW-3/ASI Johri Singh, he received the information regarding the present incident from some public person, thereby, contradicting testimony of each other regarding information of apprehension of accused along with illicit liquor and also raising doubt about the genunity of the case of prosecution.
36. Furthermore, as per the testimony of PW-2 after registration of the FIR, Ct. Rajdeep came at the spot and handed over the copy of FIR and original rukka to ASI Johri, whereas as per the testimony of PW-3/ASI Johri Singh, he came at the spot along with the Ct. Rajdeep, thereby raising doubt about the prosecution story.
37. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
38. Perusal of record reveals that information about the illicit liquor was given by some secret informer and said secret informer played an important role in initiating the proceedings and for nabbing the accused. However, no plausible explanation has been given for not citing and examining said secret informer as witness in order to prove the case of prosecution for the reasons best known to the investigating agency.
39. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, non joining and examination of independent public witnesses, bad investigation, FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.17 of 18 contradiction in the testimony of PWs, the prosecution has failed to establish its case against the accused beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Shiv Kumar @ Ravi stands acquitted of the offence u/s 33 Delhi Excise Act accordingly.
40. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
Digitally
41. File be consigned to the record room after due compliance. signed by SHILPI JAIN SHILPI Date:
Announced and Signed in the Open Court on 31.01.2020 JAIN (Shilpi Jain) 2020.01.31 17:49:31 MM-02 (Central)/THC/Delhi +0530 31.01.2020 FIR No. 88/17 PS Timarpour State Vs. Shiv Kumar @ Ravi Page no.18 of 18