Delhi District Court
State vs Kapil on 9 September, 2024
Cr. Case No. 4343/2019
STATE Vs. KAPIL
533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act
IN THE COURT OF NEHA PRIYA : ACJM-02 :NEW DELHI
DISTRICT : PATIALA HOUSE COURT : NEW DELHI
Cr. Case No. 4343/2019
STATE Vs. KAPIL
533/2018( Vasant Kunj (South))
u/s 33 of Delhi Excise Act, 2009
1. Case No. of the case : 4343/2019
2. The date of offence : 22.10.2018
3. The name of the complainant : Ct. Sandeep
4. The name of the accused : Kapil
s/o Sh. Ramender
Singh
r/o H.No. 565,
Chauhan Mohalla, near
Tata Telco Rangpuri
Village, New Delhi.
5. The offence complained : Section 33, Delhi Excise
Act, 2009
6. The plea of the accused : Not guilty
7. Date of institution of the case : 21.05.2019
8. The date of order : 09.09.2024
9. The final order : Acquitted
Page no. 1 of 13
Cr. Case No. 4343/2019
STATE Vs. KAPIL
533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act
JUDGMENT
1. This is the prosecution of accused, namely, Kapil upon a charge sheet filed by the police station Vasant Kunj (South) under Section 33 of the Delhi Excise Act, 2009.
2. The allegation against the accused is that on 22.10.2018 at about 07:40 p.m. near Payal Apartment, Tara Chand Colony, K- Block, Mahipalpur, New Delhi, within jurisdiction of PS Vasant Kunj (South), accused was found in possession of 150 quarter bottles of Bouncer Orange for sale in Haryana only 180ml each, without any permit or license and in contravention to provisions of Delhi Excise Act, and thereby he is alleged to have committed an offence punishable u/s 33 of Delhi Excise Act, 2009.
3. After completing the formalities, investigation was carried out by PS Vasant Kunj (South) and a charge sheet was filed against the accused. Charge was framed against the accused u/s 33 of Delhi Excise Act, 2009 to which he pleaded not guilty and claimed trial.
4. Vide separate statement dated 17.05.2024, accused admitted present FIR along-with 65B IEA certificate Ex. A1(colly), DD No. 33B and DD No. 41B as Ex. PW-2/A and Ex. A2 respectively, and Chemical Examination Report as Ex. A3, u/s 294 Cr.P.C.
5. In order to substantiate its case, prosecution examined four witnesses.
Page no. 2 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act
6. PW-1 HC Sandeep deposed on oath that "That on 22.10.2018, I was posted as Ct. at PS Vasant Kunj South and on that I along-with Ct. Kishan were on duty in the area of beat no. 8, K Block, Mahipalpur. At around 07:40p.m., when we both police officials were present Shukra Bazar, K Block, Mahipalpur, then I saw that one person was coming and carrying one plastic katta on his head. After seeing us, he tried to return back along-with the said katta. Thereafter on suspicion we both official chased behind the said person and apprehended near Payal Apartment, Tara Chand Colony, K Block, Mahipalpur. On checking of katta by the Ct. Kishan then we found illicit liquor in the katta. Thereafter I informed the recovery of illicit liquor from the accused present in the Court correctly identified by the witness to duty officer. After some time HC Vishram Meena had come to the spot and I told him all the incident to HC Vishram Meena and handed over accused along-with recovered illicit liquor. Thereafter I recorded my complaint which is Ex. PW-1/A bearing my signatures at point A. Thereafter IO prepared the rukka and handed over to me for registration of case. Thereafter, I came back to PS and got FIR registered. After registration of case, duty officer handed over the copy of FIR and original rukka for further handing over to IO. Thereafter I came back to the place of recovery and handed over both the documents to IO. In my presence IO counted the recovered illicit liquor and it was total 150 quarter bottle having label "Bouncer Orange for sale in Haryana only of 180 ml". Thereafter IO took one quarter bottle Page no. 3 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act for sample and the remaining quarter bottle was kept in the same katta and the same was sealed by the seal of VM and sealed after use handed over to me. Thereafter IO prepared seizure memo of the recovered illicit liquor vide memo Ex. PW-1/B bearing my signatures at point A. IO has also arrested the accused and prepared his arrest memo, personal search memo and recorded his disclosure statement and the same is now Ex. PW-1/C, Ex. PW-1/D and Ex. PW-1/E, all bearing my signatures at point A respectively. At the spot IO filled form M-29. The IO has also prepared handing memo of the same. The same is now Ex. PW-1/F bearing my signatures at point A. Thereafter at the instructions of IO, I had taken the accused to hospital for conducting medical examination. After medical examination, accused was brought to PS and I handed over the accused to IO". Said witness correctly identified the accused. Vide confiscation order no. Con.11236/2018/6500-01 dated 10.12.2018 Ex. PX-2(colly), the case property of the present case had been destroyed and sample (which was taken out before destruction) has been burnt during a fire in the malkhana. Said witness was duly cross-examined by ld. Counsel for accused.
7. PW-2 HC Krishan Kumar deposed on oath that "That on 22.10.2018, I was posted as Ct. at PS Vasant Kunj South and on that I along-with Ct. Sandeep were on duty in the area of beat no. 8, K Block, Mahipalpur vide DD No. 33B dated 22.10.2018 which is now Ex. PW-2/A. At around 07:40p.m., when we both police Page no. 4 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act officials were present Shukra Bazar, K Block, Mahipalpur, then we saw that one person was coming and carrying one plastic katta on his head. After seeing us, he tried to return back along-with the said katta. Thereafter on suspicion we both official chased behind the said person and apprehended near Payal Apartment, Tara Chand Colony, K Block, Mahipalpur. On checking of katta we found illicit liquor in the katta. Thereafter Ct. Sandeep informed the recovery of illicit liquor from the accused to duty officer of PS Vasant Kunj South. After some time HC Vishram Meena had come to the spot and we told him all the incident and handed over accused along- with recovered illicit liquor. Thereafter, IO made efforts to join the independent public witness but none was ready to join us and due to paucity of time, IO could not served the written notices to them. Thereafter, IO checked the bag/plastic sack and we found total 150 quarter bottles on which it was mentioned "Bouncer Orange for sale in Haryana only 180 ml Spiced country Spirit ENA based" and the all quarter bottles of illicit liquor were from same brand. Upon asking, accused revealed his name as Kapil. Thereafter IO took one quarter bottle for sample and the remaining quarter bottle was kept in the same katta and the same was sealed by the seal of "VR" and seal after use handed over to Ct. Sandeep. The IO had given serial no. S1 to the plastic sack in which the remaining i.e. 149 quarter bottle were kept and serial no. S2 to the sample. Thereafter IO prepared seizure memo of the recovered illicit liquor vide memo already Ex. PW-1/B bearing my signatures at point B. IO also Page no. 5 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act prepared Form M-29. Thereafter, IO recorded statement of Ct. Sandeep and prepared Rukka and handed over to him for registration of FIR. He went to the PS and got registered the FIR and came back to the spot and handed over to the IO. Thereafter, IO arrested the accused and prepared his arrest memo, personal search memo and recorded his disclosure statement and the same is already Ex. PW-1/C, Ex. PW-1/D and Ex. PW-1/E, all bearing my signatures at point B respectively. The IO had also prepared handing memo of the same. The same is already Ex. PW-1/F bearing my signatures at point B. Thereafter at the instructions of IO, medical examination of accused got conducted. We came back to the PS along-with case property and the case property was deposited in the malkhana and IO recorded my statement". Said witness correctly identified the accused. Said witness was duly cross-examined by ld. Counsel for accused.
8. PW-3 HC Rakesh deposed on oath that "On 02.11.2018, I was posted as Constable at PS Vasant Kunj (South). On said date, as per direction of IO/HC Vishram Meena, I had received one sample from the MHCM which was duly sealed with the seal of "VR" and the seal was in intact condition. I went to Excise Department, ITO and deposited the same vide RC No. 175/21/18. Till the time when case property was in my possession, no tampering was done by me or anyone else. After depositing the samples, I had taken receiving and same was deposited to MHCM". Said witness was duly cross-
Page no. 6 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act examined by ld. Counsel for accused.
9. PW-4 ASI Visharam Meena deposed on oath that "On 22.10.2018, I was posted as HC at PS Vasant Kunj (South). On that day, I received DD no. 41B and reached at the spot where I met with Ct. Sandeep and Ct. Krishan. They handed over to case property and accused, namely, Kapil. They also produced one sack. I requested 4- 5 public persons to join the investigation, but they refused to join us by citing their personal reasons and went from there without disclosing their names and addresses. Due to paucity of time, the written notices could not be served to them. Thereafter, I checked the aforesaid sack and found 150 quarter bottles of Bouncer Orange for sale in Haryana only 180ml. Thereafter, I took out one quarter bottle as sample and sealed with the seal of "VR" and gave it to serial no. S2. Remaining case property was kept in the same sack and gave it to serial no. S1 after sealing it with the seal of "VR". Seal was handed over to Ct. Sandeep. I prepared form M-29 and seized the case property. Thereafter I recorded statement of Ct. Sandeep and prepared rukka and same was handed over to Ct. Sandeep. He went to the police station and got registered the present FIR. He came back and handed over copy of FIR and rukka to me. I mentioned the relevant FIR number on the memos which were prepared prior to registration of FIR. My rukka is now Ex. PW-4/A bearing my signatures at point A. I prepared site plan at the instance of Ct. Sandeep which is now Ex. PW-4/B bearing my signatures at Page no. 7 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act point A. Seizure memo of case property is already Ex. PW-1/B bearing my signatures at point C. My form M-29 is now Ex. PW- 4/C bearing my signatures at point A. I handed over seal to Ct. Sandeep vide seal handing over memo already Ex. PW-1/F bearing my signatures at point C. I arrested accused vide arrest memo and personal search memo already Ex. PW-1/C and Ex. PW-1/D bearing my signatures at point C. I recorded disclosure statement of accused already Ex. PW-1/E bearing my signatures at point C. Thereafter, I went to the police station and deposited the case property in the malkhana. During my investigation, through Ct. Rakesh I got deposited sample to the Excise Department and after receiving the report, I prepared the chargesheet and filed before the court". Said witness correctly identified the accused. Said witness was duly cross-examined by ld. Counsel for accused.
10. Prosecution evidence stood closed vide order dated 25.07.2024.
11. After closure of prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C wherein all the incriminating circumstances were put to him which he denied. He pleaded false implication and also false plantation of the case property upon him. He chose not to lead defence evidence.
12. Thereafter, final arguments were heard on behalf of accused as well as Ld. APP for State, Sh. Bhanu Pratap Singh.
Page no. 8 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act
13. In the present case, in order to bring home the guilt of the accused, the prosecution is required to establish beyond reasonable doubt that the accused was in possession of the illicit liquor.
14. Although sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the accused has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus for the possession of which he is unable to account satisfactorily, this presumption is rebuttable. In the instant case, after going through the complete evidence and records of this case, I am of the view that the accused has successfully rebutted the presumption mentioned above and therefore, deserves to be acquitted in this case for the reasons stated below.
15. Firstly, in the present case, no public witness has been associated with the investigation. No independent witness had been joined either at the time of arrest of the accused or recovery of illicit liquor. The only witnesses to the recovery being police officials, such recovery does not inspire confidence. PW-2 and PW-4 have deposed that request was made to some public persons to join the investigation, however, none agreed and left the place without disclosing their names and addresses. This explanation tendered by the prosecution witness does not seem to be tenable as neither the details of those public persons have been brought on record nor any Page no. 9 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act legal action was taken against those persons (under relevant sections of law) who declined to assist the police in investigation. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings, when they were available, brings into question the credibility of the prosecution case, reflects adversely on the sequence of events put forward and creates reasonable doubt on the prosecution story. Thus, the chances of false implication, at the instance of the police, cannot be ruled out. Guidance is sought from the case of Anoop Joshi v. State1 wherein it was held that:
"It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop- keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors 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".
1 1992 (2) C.C. Cases 314 (HC).
Page no. 10 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act
16. Secondly, there is nothing on record to prove that the seal with which the plastic katta containing illicit liquor was sealed, was handed over to any independent witness after use. Admittedly no handing over memo was prepared. In such circumstances, possibility of tampering with the contents of sealed pullanda cannot be ruled out. Also, during evidence of prosecution witnesses, no sample was produced due to occurrence of fire incident in the malkhana. Thus, it becomes impossible to establish connection between the samples and alleged recovery from the accused. Benefit thereof must go to the accused in light of the judgment of Safiullah v. State2
17. Further, the present case is based entirely on the alleged recovery of illicit liquor from the possession of the accused by police officials, namely, PW-1 HC Sandeep and PW-2 HC Krishan Kumar, who were on duty at the given time and place, as per the prosecution story. The police officials are under statutory duty to mark their arrival and departure entries in the registers. In the present case, no departure or arrival entry has been proved by the prosecution. In absence of the departure and arrival entry of the police officials, their presence at the spot cannot be believed. Reliance can be placed upon the case of Rattan Lal v. State3 wherein it has been observed:
"If the investigating agency deliberately 2 1992 SCC OnLine Del 516.
3 1987 (2) Crimes 29.
Page no. 11 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
18. Lastly, the site plan Ex. PW-4/B and seizure memo Ex. PW- 1/B regarding the case property i.e. illicit liquor bear the number of FIR. The prosecution has not offered any satisfactory explanation as to how number of the FIR has appeared on the site plan Ex. PW-4/B and seizure memo Ex. PW-1/B, which were allegedly prepared on the spot before registration of the FIR. This implies that either the FIR was registered prior to the alleged recovery or number of the said FIR was inserted in this document after its registration. In both the situations, it seriously impinges the credibility and the veracity of the manner of recovery from the accused, as alleged by the prosecution. Guidance is sought from the case of Lalji Shukla v. State4.
19. All of the above infirmities expose serious loop holes in the prosecution story and reflect adversely on the veracity of the charges against the accused. The prosecution has failed to prove its case beyond reasonable doubt. Hence, accused Kapil s/o Sh.
4 1999 SCC OnLine Del 884.
Page no. 12 of 13 Cr. Case No. 4343/2019 STATE Vs. KAPIL 533/2018( Vasant Kunj (South)), u/s 33 of Delhi Excise Act Ramender is acquitted of the offence under Section 33 Delhi Excise Act. He is set at liberty.
Digitally
signed by
NEHA NEHA PRIYA
Announced in the open court PRIYA
Date:
2024.09.09
on 09.09.2024. 16:23:16
+0530
(NEHA PRIYA)
Additional Chief Judicial Magistrate-02 New Delhi District/PHC 09.09.2024 It is certified that this judgment contains 13 pages and each page bears my signatures. Digitally signed by NEHA NEHA Date:
PRIYA PRIYA 16:23:21 2024.09.09 +0530 (NEHA PRIYA) Additional Chief Judicial Magistrate-02 New Delhi District/PHC 09.09.2024 Page no. 13 of 13