Delhi District Court
State vs . Kranti on 8 June, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 631/18
U/s : 33/38 Delhi Excise Act
P.S. : Ranhola
State Vs. Kranti
JUDGMENT:
a) CNR No. : DLWT02-009781-2019
b) Sl. No. of the Case : 5031/19
c) Name & address of the : Ct. Anil, No. 1551/OD
complainant. PIS No. 28081000, PS Ranhola, Delhi.
d) Name & address of : Kranti D/o Late Sh. Kailash,
accused R/o H.No.-32, Gali No. 6, K-5 Block,
Vikrant Chowk, Mohan Garden,
New Delhi.
e) Date of Commission of : 02.12.2018
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 : 08.06.2022
Date of Institution : 25.06.2019
Final arguments heard on : 08.06.2022
Judgment Pronounced on : 08.06.2022
FIR No: 631/18 State v. Kranti Page No.1/16
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 02.12.2018 at about 01:30 AM at Gali No. 6, H.No. 32, K-5 Extension, Mohan Garden, Delhi, accused was found in possession of two plastic katta of illicit liquor containing 145 quarter bottles in katta serial no. 1 and 199 quarter bottles in katta serial no. 2 (180 ML each quarter bottle) of brand "Asli Santara 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.
3. Charge for committing the offence punishable under Section 33 Delhi Excise Act was framed against accused on 02.09.2019, to which she pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined two witnesses.
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5. PW-1 Ct. Anil Kumar, No. 1551/OD PS Ranhola, who deposed that on 02.12.2018, he was posted at PS Ranhola and was in patrolling duty in the area of beat no. 2 vide DD No. 11-B. At about 10:30 AM, when while patrolling, he reached near K-5 Block, H.No. 32, Gali No. 6, Vikrant Chowk, Mohan Garden, he saw that a lady was standing near H.No. 32 alongwith two plastic kattas. On seeing him she got scared and started to go inside the said house. He stopped her and checked the plastic kattas. The said kattas were duly filled with illicit liquor bottles. He gave the information in this regard to the duty officer of the PS by telephonic call and ASI Sunil Kumar came to the spot alongwith lady Ct. Suman. He handed over the custody of the lady and the two plastic kattas to ASI Sunil Kumar. The name of the lady was revealed as Kranti. The accused was produced in the court and correctly identified by the witness. ASI Sunil Kumar recorded his statement which was Ex.PW1/A. ASI Sunil Kumar opened the kattas and they were found to be containing ASLI Santra Masaledar country made liquor for sale in Haryana 180 ML quarter bottles. ASI Sunil Kumar requested 3-4 FIR No: 631/18 State v. Kranti Page No.3/16 persons to join the investigation after telling them about the purpose of the same. However, none joined the investigation and left the spot without revealing their names and addresses after making genuine excuse. In order to expedite the investigation, no notice could be served to the said persons. ASI Sunil numbered the kattas as serial no. 1 and serial no. 2. On checking katta bearing serial no. 1 was found to contain 145 quarter bottles of abovesaid country made liquor and katta bearing serial no. 2 was found to contain 199 quarter bottles of said country made liquor. Two quarter bottles each were taken out from the said kattas as sample and the kattas were tied with a white colour cloth they were sealed with the seal of "PK". Even the samples were duly sealed with the seal of "PK". Seal after use was handed over to W/Ct. Suman. The samples taken out from katta No. 1 were given numbers as serial No. 1-A and serial No. 1-B, while the samples taken out from katta No. 2 were given number as serial No. 2-A and serial No. 2-B. IO duly filled from M-29. IO prepared the tehrir and handed over the same to him for getting FIR registered. He went to the PS and got the FIR registered. He came back to the spot alongwith the copy of FIR and FIR No: 631/18 State v. Kranti Page No.4/16 original tehrir and handed over both them to ASI Sunil for necessary action. IO prepared the site plan at in his instance Ex.PW1/B. Accused was interrogated and on having incriminating evidence against her, she was arrested vide memo Ex.PW1/C. Personal search of the accused was conducted in his presence vide memo Ex.PW1/D. Nothing was recovered in the personal search of the accused. The case property was seized vide memo Ex.PW1/E. Accused made disclosure statement which was recorded vide memo Ex.PW1/F. Accused was got medically examined at SGM Hospital. Case property was deposited at the malkhana of PS. Accused was produced before the concerned court and her JC remand was taken. IO recorded his statement u/S 161 Cr.P.C. He could identify the case property if shown to him.
At that stage, copy of order of confiscation u/S 59 of Delhi Excise Act, 2009 dated 24.05.2019 was placed on record vide which case property was destroyed as per the concerned rules and one of the sample of the case property was preserved. The said order alongwith certificate u/S 65-B and CD alongwith photographs were then Ex.PW1/G (Colly).
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At that stage, one of the sample of the said case property duly sealed with seal of "NK" was shown to the witness and the witness correctly identified the same to be one of the sample of the illicit bottles recovered from the possession of the accused. The said case property was then Ex.P-1.
In his cross-examination, witness deposed that he left PS at about 08:15 Am on motorcycle. The spot was surrounded by residential area. It was correct that he had not asked any public persons to join the investigation at the time of recovery. IO reached at the spot within 10-15 minutes, when he made call to PS on a gypsy whose number he did not remember. IO prepared arrest memo, site plan, disclosure statement of accused, personal search memo before sending rukka. He went to PS at about 01:40 PM for registration of the case and came back at the spot at about 02:15 PM. The seal was handed over to lady Ct. Suman after registration of the case. IO informed to one relative of the accused. IO prepared all the documents while sitting on a two wheeler. They finally left the spot at about 02:30 PM. The case property was brought to the PS in gypsy. He was also in that gypsy. The site plan was prepared FIR No: 631/18 State v. Kranti Page No.6/16 at about 01:30 PM in his presence. It was correct that on the sample Ex.P1 no numbering was given nor there was any specific mark that it was the same quarter bottle which was recovered from the accused. It was wrong to suggest that he was deposing falsely and nothing was recovered from the accused.
6. PW2 ASI Sunil Kumar, No. 969/security is the IO in the present case, who deposed that on 02.12.2018, he was posted at PS Ranhola as ASI. On that day on receiving DD No. 21-B, he alongwith W/Ct. Suman reached at the spot. On reaching there they met Ct. Anil and he produced before him accused Kranti, who was accused and produced in the court that day. Accused was correctly identified by the witness alongwith case property recovered from the accused. He recorded statement of Ct Anil, which was already Ex.PW1/A. He checked the case property and found that same was containing 344 quarter bottles of illicit liquor. He separated four quarter bottles as sample and sealed them with the seal of "PK". Remaining case property was also sealed with the seal of "PK" and seized the same vide seizure memo already Ex.PW1/E. IO filled form FIR No: 631/18 State v. Kranti Page No.7/16 M-29 which was Ex.PW2/A. He prepared the rukka Ex.PW2/B and same was handed over to the Ct. Anil for registration of FIR from PS. Accordingly, he went to the PS and got the FIR registered and returned back to the spot alongwith copy of FIR and original rukka and same was handed over to him. He prepared site plan at the instance of Ct. Anil, which was already Ex.PW1/B. He arrested, personally searched (through W/Ct. Suman) and recorded disclosure statement of the accused vide memos Ex.PW1/C, Ex.PW1/D and Ex.PW1/F. Case property deposited in malkhana. Accused was medically examined and produced before the court and he was sent to JC. Sample was sent to Excise Lab and he obtained the result. He recorded the statement of witness and prepared the charge-sheet.
He could identify case property, if shown to him (case property was already exhibited in the testimony of PW-1).
In his cross-examination, witness deposed that he reached at the spot at about 11:30 AM on his motorcycle. He did not mention in DD No. 21-B that he was going on his private motorcycle at the spot. The distance between the spot and PS was FIR No: 631/18 State v. Kranti Page No.8/16 about 1 KM. First of all, he recorded statement of Ct. Anil. It was correct that spot was a residential area and public persons were passing through the spot. No written notice was served upon the public persons who refused to join the investigation. He received his seal back after two days from malkhana. It was correct that no memo was prepared in that regard. He recorded statement of Ct. Anil only before sending the rukka to PS. All the proceedings were done while standing at the PS. Ct. Anil left the spot with the rukka for registration of FIR at about 01:40 PM and he returned back at the spot at about 02:20 PM. In between, when the Ct. Anil had gone for property was taken to PS on a government vehicle i.e. ERV Gypsy. However, he cannot told the name of said driver of the vehicle as well as registration no of the same. They finally left the spot at about 04:15 PM. It was wrong to suggest that case property was planted on the accused or that nothing incriminating was recovered from the accused or that accused was falsely implicated or that all the proceedings were conducted while sitting at the PS or that he was deposing falsely.
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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 she denied all the incriminating evidence against him and claimed to have been falsely implicated and case property planted upon her. Accused chose not to lead DE.
8. The accused admitted FIR No. 631/18 dated 02.12.2018 alongwith certificate u/s 65-B of Indian Evidence Act, DD No. 21-B dt 02.12.2018, Chemical examination report and statement of HC Keshram and W/Ct. Suman, vide Ex.A-1 to Ex.A-5 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.
10. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove FIR No: 631/18 State v. Kranti Page No.10/16 its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
11. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused Kranti is entitled to be acquitted for the charge by reasons of reasonable doubts in the prosecution story.
12. As deposed in the testimony of PW-1 duly corroborated by the testimony of PW-2, PW-2 had asked 3-4 public persons to join the investigation, but all of them refused citing their personal reasons. It is clear that no serious attempt was made by the concerned IO/PW2 to get independent public persons to join the FIR No: 631/18 State v. Kranti Page No.11/16 police proceedings of seizure and apprehension of the accused with case property despite availability of such witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings for joining the investigation since after the apprehension of the accused person with case property, there was no possibility of accused person escaping their arrest or crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of apprehension by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi FIR No: 631/18 State v. Kranti Page No.12/16 Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under: " It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the 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". In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: " I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the FIR No: 631/18 State v. Kranti Page No.13/16 prosecution witnesses that some witnesses form 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. 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 admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in 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 ask anybody to join the investigation and on FIR No: 631/18 State v. Kranti Page No.14/16 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 Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
13. Keeping in view the background of the case, defence of the accused, non-following the established procedure of law by the investigating agency, as discussed above, this Court is of the opinion that the accused is entitled to the benefit of doubt. In this regard, reliance can be placed on the case of State of Haryana v. Bhagirath, AIR 1999 SC 2005, the Hon'ble Supreme Court illustrated the doctrine of benefit of doubt in the words "The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the FIR No: 631/18 State v. Kranti Page No.15/16 reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
14. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, it is held that the prosecution has failed to prove the alleged offence under Section 33 Delhi Excise Act against the accused Kranti beyond reasonable doubt. The accused Kranti is hereby acquitted for the charged offence.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 8th day of June, 2022 08.06.2022
FIR No: 631/18 State v. Kranti Page No.16/16