Delhi District Court
State vs Mahesh Anr on 30 September, 2024
IN THE COURT OF SH. AVIRAL SHUKLA, JUDICIAL MAGISTRATE
FIRST CLASS-05, SOUTH DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
CNR No. DLST02-000251-2014
IN THE MATTER OF:
STATE Vs. MAHESH ANR.
FIR no. 475/2013
PS MEHRAULI
U/s 33 Delhi Excise Act
JUDGMENT
A) Sl. No. of the case : CR No. 2031581/2016
B) The date of commission of : 14.07.2013
offence
C) The name of the complainant : Sh. Sanjay Ram, S/o Sh. Data Ram, H.
No. 228, Rajpur Colony, New Delhi.
D) The name and address of accused : 1) Mahesh, S/o Sh. Gopal Singh, R/o H. No. E-529, Gali no. 25, Khajoori Khas, New Delhi, 2) Lokesh, S/o Sh. Dharam Pal, R/o Vill. Anangpur, Dist. Faridabad, Haryana (Proclaimed Offender) and 3) Yogesh, S/o Sh. Hem Chand, R/o H. No. 126, Chhattarpur Village, New Delhi.
E) Offence complained of : 33/58 of the Delhi Excise Act, 2009.
F) The plea of accused : Not Guilty G) Final Order : Acquittal H) The date of such Order : 30.09.2024 FIR No.475/2013 PS Mehrauli Page No.1 of 19 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.30 16:54:07 +0530 DATE OF INSTITUTION : 16.01.2014 DATE OF FINAL ARGUMENTS : 27.09.2024 DATE OF JUDGMENT : 30.09.2024 BRIEF FACTS
1. The present case has originated from the charge-sheet filed by the State under Section 33 of the Delhi Excise Act, 2009, against accused persons namely 1) Mahesh, S/o Sh. Gopal Singh, 2) Lokesh, S/o Sh. Dharampal (Proclaimed Offender) and 3) Yogesh, S/o Sh. Hem Chand. As per the charge-sheet, on 14.07.2013 at around 03.27 AM near H. No. A-22, Rajpur near Laxmi Narayan Mandir, New Delhi-74 i.e. within the jurisdiction of PS Mehrauli, accused Mahesh along with co-accused Lokesh (since PO) in furtherance of his common intention were found in possession of 5 plastic kattas containing illlcit liquor which are mentioned in the seizure memo Mark A, without having any license / permit to possess the same and thereby committed an offence punishable under Section 33 of the Delhi Excise Act.
2. It is alleged against the accused Yogesh that he, being the registered owner of motorcycle bearing no. DL3SAG2217 allowed to carry / transport illicit liquor on 14.07.2013 to accused Mahesh Kumar on the aforesaid motorcycle and thereby committed an offence punishable u/s 33/58 of Delhi Excise Act.
3. On the basis of the charge-sheet, the Court took cognizance of the offence on 25.03.2014 and was supplied with copy of chargesheet and documents in compliance of Section 207 Cr.P.C on 24.05.2014. Court framed the charges against the accused persons for offence punishable under Section 33/58 of Delhi Excise FIR No.475/2013 PS Mehrauli Page No.2 of 19 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.30 16:54:15 +0530 Act. Charges were read over and explained to them to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, the prosecution has examined the following witnesses:
(i) PW1 was HC Navneet;
(ii) PW2 was Sh. Yogesh Kumar;
(iii) PW3 was HC Jitender Kumar;
(iv) PW4 was ASI Vinay;
(v) PW5 was ASI Mehmood;
(vi) PW6 was HC Virender;
(vii) PW7 was Retd. ASI Ved Pal;
(viii) PW8 was ASI Krishan Kumar; and
(ix) PW9 was Sh. Parmeshwar Singh.
5. PW-1 HC Navneet deposed that on 14.07.2013, he was posted at PS Mehrauli and was on duty as DO having duty hours 12.00 midnight to 08.00 AM (i.e. on the intervening night of 13/14.07.2013). On that day at about 06.55 AM, he received a rukka sent by HC Vinay through Ct. Mehmood. On the basis of the rukka, he registered the present FIR. The copy of the same is Ex. PW-1/B. He also made endorsement on the rukka in his own handwriting which is Ex. PW-1/A and handed over a copy of FIR and original rukka to Ct. Mehmood for handing over the same to HC Vinay. Cross-examination of PW-1 HC Navneet was recorded as nil despite of opportunity given to Ld. defence counsel.FIR No.475/2013 PS Mehrauli Page No.3 of 19 Digitally signed
AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.30 16:54:24 +0530
6. PW-2 / accused Yogesh Kumar deposed that he was the registered owner of the motorcycle bearing registration number DL3SAG2217. On 18.07.2013, he received the notice from PS Mehrauli regarding ownership of the aforesaid motorcycle. He replied to the same vide Ex. PW-2/A. He further deposed that on 13.07.2013, his relative namely Mahesh had borrowed the aforesaid motorcycle from him and thereby undertook that he would produce the accused Mahesh in PS Mehrauli. PW-2 correctly identified the accused Mahesh in the court. Cross- examination of PW-2 / accused Yogesh Kumar was recorded as nil despite of opportunity given to Ld. defence counsel.
7. PW-3 HC Jitender Kumar deposed that on 24.07.2013, he was present in the police station and joined the investigation of the present case at the request of IO/HC Vinay Kumar. On that day, he alongwith the IO were present near the gate of PS Mehrauli when two persons came and met the IO. One of them revealed his name as Yogesh S/o Sh. Hemchand and claimed himself to be the registered owner of Black colour Pulsar bike bearing registration no. DL3SAG2217. He further revealed that on 13.07.2013, one of his relative namely Mahesh S/o Gopal borrowed his motorcycle and did not return. He further deposed that he produced the said accused Mahesh (correctly identified by the witness) before the IO. He further deposed that IO informed the accused Mahesh regarding the present case and interrogated him thoroughly.
8. PW-3 HC Jitender further deposed that the accused Mahesh revealed that on 14.07.2013, he alongwith co-accused Lokesh bought 5 cartons of liquor from Haryana which were being carried by them on the aforesaid motorcycle to Delhi. It FIR No.475/2013 PS Mehrauli Page No.4 of 19 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.30 16:54:30 +0530 was about 03:00 AM, when they were passing from Rajpur Khurd Village, then one person shouted and asked them to stop. Accused and his co-accused felt afraid and fled away from there leaving the aforesaid motorcycle and liquor. While fleeing, their mobile phone was also dropped there. Thereafter, IO arrested accused Mahesh Kumar and conducted personal search vide memo Ex.PW3/A and Ex.PW3/B. IO recorded disclosure statement of accused Mahesh Kumar as Ex PW3/C. IO recorded my statement. PW-3 was duly cross examined by Ld. defence counsel.
9. PW-4 ASI Vinay deposed that on 14.07.2013, he was posted at PS Mehrauli as a Head Constable. He further deposed that on that day, his duty hours were from 04.00 PM to 12.00 midnight. On that day, he was present in the PS and he had received the information through concerned duty officer that the investigation of the present case has been marked to him. After receiving the DD no. 7B Mark A1, he alongwith Ct. Mehmood reached at the spot i.e. A-22, Laxmi Narayan Mandir, Rajpur. After reaching there, they met the complainant Sanjay who stated that at around 03.00 AM, when he came out for nature call, he saw that two boys were coming on the motorcycle and they were carrying some articles on the motorcycle. He further deposed that he had given signal to stop them. However, the above said boys ran away after leaving the motorcycle and articles (saman) on the spot.
10. PW-4 ASI Vinay further deposed that the complainant Sanjay Kumar had stated that he checked the articles and found liquor inside the petti and thereafter he made the call at 100 number. Complainant Sanjay Kumar had produced the five pettis containing illicit liquor and one motorcycle bearing registration no. DL- 3SAG-2217, colour black and one mobile phone, colour black & red, before him.
FIR No.475/2013 PS Mehrauli Page No.5 of 19 Digitally signed by AVIRALAVIRAL SHUKLA SHUKLA Date:
2024.09.30 16:54:35 +0530 PW-4 ASI Sanjay had checked the five pettis and found four pettis of Rasila Santra, containing quarter bottles of 180 ml each and one petti was containing quarter of whiskey, brand Bagpiper Whiskey. He had taken two quarters from each five pettis and gave the Sr. no. S1 to S8 (desi sharab) and Sr. no. S9 to $10 (Bagpiper Whiskey). He had given Sr. no. Al to A4 (Desi Sharab) and Sr. no. A5 (Bagpiper Whiskey), to the pettis. He had put two pettis (Sr. no. Al and A2).
11. PW-4 ASI Vinay further deposed that in one plastic katta, pettis (Sr. no.A3 and A4), pettis (Sr. no. A5) were put in three kattas. He had put the seal of VK on the three kattas and samples. He seized the aforesaid motorcycle, which is Ex.PW4/A. He prepared the site plan at the instance of the complainant Sanjay, which is Ex. PW4/B. Seizure memo of illicit liquor is Ex PW4/C. He had seized the mobile phone vide seizure memo Ex.PW4/D. He filled up M-29 form, which is exhibited as Ex. PW4/E. He recorded complaint of the complainant in his own handwriting which is exhibited as Ex. PW4/F. He had prepared the rukka by making the endorsement. He had sent Ct. Mehmood for registration of FIR at PS Mehrauli, alongwith the rukka. Accordingly, Ct. Mehmood went to the PS and got registered the present FIR from PS. He further deposed that he recorded the statement of Ct. Mehmood.
12. PW-4 ASI Vinay further deposed that he had brought the case property i.e. illicit liquor, motorcycle and mobile phone to the PS and deposited the same in the malkhana. Thereafter, he had made the entry in the register regarding the departure/arrival. On 17.07 2013, he served the notice upon the concerned transport authority, Sheikh Sarai for verification of the registration of seized motorcycle FIR No.475/2013 PS Mehrauli Page No.6 of 19 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.30 16:54:43 +0530 which is Ex PW4/G. Reply of the same was given by the concerned officer i.e. vehicle particulars regarding the vehicle registration no. DL 3SAG-2217. On 18.07.2013, he served the notice upon the owner of the motorcycle namely Yogesh, which is exhibited as Ex. PW2/A. The owner of the motorcycle had given reply of the notice in his own handwriting on the same in his presence. As per the reply, motorcycle was driven by his relative Mahesh (accused in the present case).
13. PW-4 ASI Vinay further deposed that on 24.07.2013, owner of the motorcycle had produced the alleged accused Mahesh in the PS Mehrauli. He interrogated from the accused Mahesh and recorded the disclosure statement of accused Mahesh which is Ex.PW4/G. Upon the satisfaction, he arrested the accused Mahesh vide arrest memo Ex PW4/H and personally searched him vide personal search memo Ex. PW4/I. In the disclosure statement, accused Mahesh had disclosed about the involvement of another person namely Lokesh. He had produced the accused Mahesh before the concerned court. Accused Mahesh was released on bail as per the law. He made the efforts to trace the untraced accused Lokesh however accused Lokesh was not traceable at that time. During the investigation, he had taken coercive steps against the accused Lokesh and obtained process, b/w, NBW, u/s 82 and 83 CrPC.
14. PW-4 ASI Vinay further deposed that the accused Lokesh was declared P.O. by the concerned court in the year 2013. He had given information to the Excise Department I.T.O., Delhi regarding the apprehension of the illicit liquor while transporting the same through motorcycle. He further deposed that on 19.07.2013, he sent the samples of illicit liquor to the Excise Laboratory, Vikas Bhawan, ITO, FIR No.475/2013 PS Mehrauli Page No.7 of 19 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.30 16:54:49 +0530 New Delhi through Ct. Virender, concerned MHC(M). Ct. Virender submitted the same and received the receipt regarding deposition. He had not placed the receipt of the deposition on the record. Later on, he obtained the excise laboratory result and placed the same on record. He further deposed that after the completion of investigation, he prepared the challansheet of the present case and submitted the same before the court. Accused Mahesh and Yogesh were correctly identified by PW-4. PW-4 ASI Vinay had correctly identified the photographs of the case property Ex. P2, the sample quarter bottles Ex. P5 and the mobile phone Ex. P-6. PW-4 was duly cross examined by Ld. defence counsel.
15. PW-5 ASI Mehmood deposed that on 14.07.2013, his duty hours were from 08.00 PM to 08.00 AM. On that day, he was present in the PS and HC Vinay Kumar had received the information through concerned duty officer that the investigation of the present case has been marked to him. After receiving the DD no.7B Mark Al, he accompanied HC Vinay Kumar reached at the spot i.e. A-22, Laxmi Narayan Mandir, Rajpur. After reaching there, they met complainant Sanjay. who stated about the incident to HC Vinay. Complainant Sanjay Kumar had produced the five petties containing illicit liquor and one motorcycle bearing registration no DL-35AG-2217, colour black and one mobile phone, colour black & red before HC Vinay Kumar. HC Vinay checked the five peties and found four pettis of Rasila Santra, containing quarter bottles of 180 ml each and one peti was containing quarter of whiskey, brand Bagpiper Whiskey.
16. PW-5 ASI Mehmood further deposed that HC Vinay Kumar had taken two quarters from each five pettis and gave the Sr. no. S1 to S8 (Desi Sharab) and Sr. FIR No.475/2013 PS Mehrauli Page No.8 of 19 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.30 16:54:54 +0530 no. S9 to S10 (Bagpiper Whiskey). HC Vinay Kumar had given Sr. no. Al to A4 (Desi Sharab) and Sr. no. AS (Bagpiper Whiskey), to the petties. He further deposed that HC Vinay Kumar put two pettis (Sr. no. Al and A2) in one plastic katta, peties (Sr. no A3 and A4), pettis (Sr. no A5) were put in three kattas. HC Vinay Kumar put the seal of VK on the three kattas and samples. HC Vinay Kumar seized the aforesaid motorcycle, which is exhibited as Ex. PW4/A. He further deposed that HC Vinay Kumar prepared the site plan at his instance. Seizure memo of illicit liquor is marked as Mark A, which is exhibited as Ex PW4/C. HC Vinay Kumar seized the mobile phone vide seizure memo Ex.PW4/D. HC Vinay Kumar filled up M-29 form at the spot.
17. PW-5 ASI Mehmood further deposed that HC Vinay Kumar recorded complaint of the complainant which is exhibited as Ex.PW4/F. HC Vinay Kumar prepared the rukka by making the endorsement. He further deposed that HC Vinay Kumar sent him for registration of FIR at PS Mehrauli, alongwith the rukka. Accordingly, he went to the PS and got registered the present FIR from PS. HC Vinay Kumar recorded his statement. They brought the case property i.e. illicit liquor, motorcycle as well as mobile phone to the PS and deposited the same in the malkhana. Seal after the use was handed over to him by HC Vinay Kumar. PW-5 ASI Mehmood narrated the entire incident to the IO who recorded his statement u/s 161 CrPC. He further deposed that he had never seen the accused persons during the investigation. PW-5 had correctly identified the photograph of the case property Ex. P2 as well as photographs of the motorcycle Ex. P3. Witness had correctly identified the samples of polythene bag Ex. P5 (Colly). PW-5 was duly cross-
FIR No.475/2013 PS Mehrauli Page No.9 of 19 Digitally signed by AVIRALAVIRAL SHUKLA SHUKLA Date:
2024.09.30 16:55:01 +0530 examined by Ld. defence counsel.
18. PW-6 HC Virender deposed that on 19.07.2013, he was posted at PS Mehrauli as constable. On that day, he took the samples of the case property from the malkhana of the PS vide RC no. 96/21, deposited the same in the Excise Lab, Vikas Bhawan, ITO Delhi and received the receiving from there. He deposited the receipt with the malkhana. There was no tempering with the case property while the same remain in his possession. PW-6 was duly cross examined by Ld. defence counsel.
19. PW-7 Retd. ASI Vedpal deposed that on 19.07.2013, he was posted at PS Mehrauli as Malkhana Muhrar (case property). On that day, as per the directions of the SHO concerned, he handed over the case property in a sealed condition to HC Virender for depositing the same at the Excise Lab. Accordingly, HC Virender deposited the same in the Excise Lab, Vikas Bhawan, ITO, New Delhi. He had handed over the samples / case property vide RC no. 96/21 dt. 19.07.2013. He received the receipt of the deposit through HC Virender and placed the same on record. PW-7 was duly cross examined by Ld. defence counsel.
20. PW-8 ASI Krishan Kumar deposed that on 12.03.2017, he was posted at PS Mehrauli as HC. On that day, the present case was marked to him by the SHO after the order of the court dt. 04.01.2017. Thereafter, he had taken the certified copy of the previously filed charge-sheet in the present case. He further deposed that he had inquired in the present case about the fact as to why the owner of the motorcycle bearing no. DL3SAG2216 pulsar black colour was not made an accused person. He FIR No.475/2013 PS Mehrauli Page No.10 of 19 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.30 16:55:06 +0530 had taken the ownership of the above mentioned motorcycle from the authority and he served notice u/s 41A CrPC to the accused namely Yogesh. He further deposed that the accused Yogesh joined the investigation and he was bound down after filing of supplementary charge-sheet in the present case. PW-8 ASI Krishan Kumar was duly cross-examined by Ld. defence counsel.
21. PW-9 Parmeshwar Singh deposed that he was posted as Ahlmad in the court no. 208, Saket Courts at the time when proceedings u/s 82 CrPC were initiated against accused Lokesh. Thereafter, a report on process u/s 83 CrPC was filed by HC Vinay Kumar as per which the process u/s 82 CrPC received back as unexecuted with the report that no movable or immovable property of the accused could be traced. Thereafter, statement of process server was recorded in this regard.
Application regarding issuance of NBWs against the accused Lokesh moved by HC Vinay Kumar is Ex. PW-9/A. He further deposed that application regarding proceedings u/s 82 CrPC moved by HC Vinay Kumar is Ex. PW-9/B. Order dt. 16.11.2013 is Ex. PW-9/C. Statement of HC Vinay Kumar i.e. process server is recorded on 16.11.2013 is Ex. PW-9/D.
22. PW-9 Parmeshwar further deposed that an application for the proceedings u/s 83 CrPC is Ex. PW-9/E. Order dt. 30.10.2013 is Ex. PW-9/F. Another statement of HC Vinay Kumar recorded on 30.10.2013 is Ex. PW-9/G. Witness, after seeing the documents related to the proceedings u/s 82 CrPC, replied as correct that the proceedings u/s 82 CrPC against the accused Lokesh was done in his tenure as Ahlmad at court no. 208. PW-9 was duly cross examined by Ld. defence counsel.
FIR No.475/2013 PS Mehrauli Page No.11 of 19 Digitally signedAVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.30 16:55:12 +0530 STATEMENT OF ACCUSED & FINAL ARGUMENTS
23. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him. Accused pleaded innocence and claimed to have been falsely implicated. Despite opportunity, accused chose not to lead any evidence in his defence. Thereafter, final arguments were heard.
COURT OBSERVATION
24. At the outset, it is pertinent to note that Section 33 Delhi Excise Act reads as under:
"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 license, 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.FIR No.475/2013 PS Mehrauli Page No.12 of 19 Digitally signed by AVIRAL
AVIRAL SHUKLA SHUKLA Date:
2024.09.30 16:55:18 +0530
25. It is the case of prosecution that on 14.07.2013 at around 03.27 AM near H. No. A-22, Rajpur near Laxmi Narayan Mandir, New Delhi-74 i.e. within the jurisdiction of PS Mehrauli, accused Mahesh along with co-accused Lokesh (since PO) in furtherance of his common intention were found in possession of 5 plastic kattas containing illlcit liquor which are mentioned in the seizure memo Mark A, without having any license / permit to possess the same and thereby committed an offence punishable under Section 33 of the Delhi Excise Act. Further, the accused Yogesh, being the registered owner of motorcycle bearing no. DL3SAG2217, allowed to carry / transport illicit liquor on 14.07.2013 to accused Mahesh Kumar on the aforesaid motorcycle and thereby, he committed an offence punishable u/s 33/58 of Delhi Excise Act. Per contra, it is the defence of accused that no public witness joined the proceedings. Also, it has been argued that there is discrepancy in the depositions of prosecution witnesses.
26. In order to prove the alleged offence, the prosecution is first and foremost required to prove the recovery of illicit liquor from the possession of accused persons. In order to prove the said recovery, it is a mandate to comply provision of section 100 (4) of the Cr.PC. The accused persons were nabbed from a residential locality but no public person has been examined. Under these circumstances, there is absolute non compliance of Section 100 Cr.PC Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it FIR No.475/2013 PS Mehrauli Page No.13 of 19 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.30 16:55:25 +0530 mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere effort was made to join respectable witnesses from the same locality.
27. In this regard reliance is also being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had 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 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".
28. In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. 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 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".
4. It is well settled principle of the law that the Investigating Agency FIR No.475/2013 PS Mehrauli Page No.14 of 19 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.30 16:55:32 +0530 19.01.2013 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 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".
29. Further, prosecution has failed to prove when a number of people from the residential locality were available, why the testimony of said witnesses were not recorded. Not even a single notice was given to any public person to join the investigation. The aforesaid lapse casts a doubt on the version of the prosecution, as presented in the chargesheet.
30. It further needs to be appreciated that after preparing the tehrir, HC Vinay had sent ASI Mehmood for registration of FIR to the PS, however, admittedly seizure memos Ex. PW-4/A, Ex. PW-4/C and Ex. PW-4/D has been prepared prior to the time of registration of FIR. It is, therefore, clear that the seizure memos must have been prepared at the spot before the tehrir was sent to the police station for registration of the FIR. A perusal of the seizure memos reveals that it contains the FIR No.475/2013 PS Mehrauli Page No.15 of 19 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.30 16:55:38 +0530 FIR details, thus raising a valid doubt in the mind of this court as to how it was made before the FIR was lodged and still contained the FIR details. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by ASI Mehmood. Thus, ordinarily, the FIR number should not find mention in the seizure memos, which came into existence before registration of the FIR. However, interestingly, the seizure memos Ex. PW-4/A, Ex. PW-4/C and Ex. PW-4/D bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar vs. The Delhi Administration , 1989 Cri. L.J. 127, wherein it was observed paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to FIR No.475/2013 PS Mehrauli Page No.16 of 19 Digitally signed by AVIRAL AVIRAL SHUKLA Date:
SHUKLA 2024.09.30 16:55:44 +0530 how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
31. In paragraph 4 of Mohd. Hashim v. State , 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
32. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memos Ex. PW- 4/A, Ex. PW-4/C and Ex. PW-4/D. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time or that the IO never joined the investigation at the spot and every part of the investigation was done by him while sitting at the PS as alleged by FIR No.475/2013 PS Mehrauli Page No.17 of 19 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.30 16:55:50 +0530 the defence. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused persons.
33. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal) 662).
34. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused persons, the benefit of which accrues in their favour. Accused Mahesh, S/o Sh. Gopal Singh is accordingly acquitted for the offence under Section 33 Delhi Excise Act and accused Yogesh Kumar, S/o Sh. Hem Chand is acquitted for the offence u/s 33/58 Delhi Excise Act.
35. Let bail bonds / surety bonds be furnished by the accused persons under Section 437A CrPC.
Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.30 16:55:59 +0530 Announced in Open Court (AVIRAL SHUKLA) on 30.09.2024 JMFC-05,South District/30.09.2024 FIR No.475/2013 PS Mehrauli Page No.18 of 19
Certified that this judgment contains 19 pages and bears my signatures at each page. AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA 16:56:23 +0530 Date: 2024.09.30 (AVIRAL SHUKLA) JMFC-05,South District/30.09.2024 FIR No.475/2013 PS Mehrauli Page No.19 of 19