Delhi District Court
State vs Sunny on 1 November, 2022
IN THE COURT OF MS. DEEKSHA SETHI, MM-03, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-010509-2018 FIR No. : 684/2017 U/s : 33 Delhi Excise Act P.S. : Bindapur State versus Sunny a) ID. No. of the Case : 2085/2018 b) Name & address of the : Ct. Sunil Kumar complainant No. 1775/SW PIS No. 28103291 PS Bindapur, Dwarka District, New Delhi c) Name & address of : Sunny accused person. S/o Sh. Shashi Kapoor R/o H.No. A-46, Vishnu Vihar, Uttam Nagar, New Delhi. d) Date of Commission of : 15.09.2017 offence e) Offence complained of : 33(1) Delhi Exicse Act. f) Plea of the accused : Pleaded not guilty. g) Ld. APP for State : Sh. Manish Kaushik State v/s Sunny Page 1 of 15 Cr. Case No. 2085/2018 h) Final Order : Acquitted i) Date of Institution : 28.02.2018 j) Judgment Pronounced on : 01.11.2022 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 15.09.2017, Ct. Sunil (hereinafter referred to as the 'complainant') was on patrolling duty along with Ct. Manoj and when he had reached Peer Baba Majar, DDA Flats, Bindapur, he saw that one person namely Sunny (hereinafter referred to as 'accused') was carrying one plastic katta over his head. After seeing Ct. Sunil, the accused started walking away at a fast pace. The complainant stopped the accused with the help of Ct. Manoj. When Ct. Sunil checked the katta, it was found to be containing quarter bottles of illicit liquor. Thereafter, the complainant informed about the said incident to the police and police official from PS Bindapur reached at the spot. Investigation of the case was thereafter handed over to Investigating Officer ASI Rajesh Kadian and thereafter to HC Kailash.
Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., State v/s Sunny Page 2 of 15 Cr. Case No. 2085/2018 Sunny. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33(1) Delhi Excise Act was framed against him, to which he had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined the following witnesses:
(i) PW1 Ct. Lalu has deposed that on 26.09.2017, he was posted at PS Bindapur as constable and on that day, he was handed over the sample of liquor and form 29 by the MHC(M) vide RC No. 190/21/17 for depositing the same in Excise Office, ITO. He had taken the sample liquor and deposited the same with Excise Office. He had received a copy of RC (Ex.
PW1/A) and he handed over the same to MHC(M) on the same day. He further deposed that as long as the sample liquor and form 29 remained in his possession, the same was not tampered with. IO had recorded his statement. The witness was not cross- examined by Ld. Counsel for the accused despite having been given an opportunity to do so.
(ii) PW-2 Ct. Sunil has deposed that on 15.09.2017, he was posted at PS Bindapur. On that day, he along State v/s Sunny Page 3 of 15 Cr. Case No. 2085/2018 with Ct. Manoj was on patrolling duty in beat no. 4 and when they reached near Pir Baba Majar, DDA flats, Bindapur, they saw that the accused (Sunny) was carrying one plastic katta and upon seeing them, he had started walking briskly. They got suspicious, stopped the accused and checked the platic katta which was found to be containing 100 quarter bottles of Asli Santra Masaledar Desi Sharab, for sale in Haryana only. The information was shared with PS Bindapur and ASI Rajesh Kadian had reached at the spot. He had handed over the custody of the accused to ASI Rajesh Kadian (IO). The IO had tried to join public persons but none of them had agreed. One quarter bottle was taken as sample from quarter bottles and 99 quarter bottles were put in the same plastic and sealed with the seal of RK. The sample quarter bottle's mouth was covered with a white cloth and sealed with the seal of RK. Form 29 was prepared. The seal was handed over to Ct. Manoj. The case property was seized vide seizure memo Ex. PW2/A. IO had recorded his statement (Ex. PW2/B), prepared the rukka and handed over the same to him. He took the same to the police station, got an FIR registered and came back at the spot with a copy of FIR and original rukka. IO recorded the disclosure statement of the accused (Ex. PW2/C) and arrested him and conducted his personal search vide memos Ex. PW2/D and PW2/E State v/s Sunny Page 4 of 15 Cr. Case No. 2085/2018 respectively. IO had also prepared the site plan (Ex. PW1/F). The witness had correctly identified the accused present in court. The case property was disposed of and the photographs of the case property are Ex. P-1. The witness was thoroughly cross- examined by Ld. Counsel for the accused.
(iii) PW-3 HC Raj Singh has deposed that on 15.09.2017, he was posted at PS Bindapur as MHC(M). On that day, ASI Rajesh Kadyan had deposited the case property in the present case in malkhana against serial no. 2213/17 in register no. 19 (Ex. PW3/A). This witness was not cross- examined by Ld. Counsel for the accused despite having been given an opportunity to do so.
(iv) PW-4 ASI Rajesh Kadyan has deposed that on 15.09.2017, he was posted at PS Bindapur as ASI and on that day, on receipt of DD No. 28B he had gone to Peer Baba Majar, DDA Flats, Bindapur where he had met Ct. Sunil and Ct. Manoj along with the accused and one plastic katta containing quarter bottles of illicit liquor. He had tried to join 4- 5 public persons in investigation but they had left the spot after assigning their personal reasons. He had checked the plastic katta which was found to be containing 100 quarter bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only. He had taken out one quarter bottle as sample and sealed it with the seal of RK. The remaining quarter State v/s Sunny Page 5 of 15 Cr. Case No. 2085/2018 bottles were placed in the same plastic katta and sealed with the seal of RK. He had prepared Form M-29 (Ex. PW4/X) and handed over the seal to Ct. Manoj. The case property was seized vide memo Ex. PW2/A. He had recorded the statement of Ct. Sunil and prepared the rukka (Ex. PW4/A) and got an FIR registered on the basis of the same through Ct. Sunil. He had prepared the site plan (Ex. PW2/F). Accused was arrested vide arrest memo Ex. PW2/D, conducted his personal search vide memo Ex. PW2/E and recorded his disclosure statement Ex. PW2/C. Accused along with the case property were brought to the police station. On 26.09.2017, he had sent the sample bottle in the present case to Excise Office, ITO vide RC No. 190/21/17. He had also collected the report which was found to be positive. He had correctly identified the accused present in court. The case property is Ex. P-1. This witness was thoroughly cross-examined by Ld. Counsel for the accused.
(v) PW-5 ASI Kailash has deposed that in the year 2017, he was posted at PS Bindapur as head constable. The present case was marked to him on 22.11.2017. After completion of the investigation, he had submitted the charge-sheet before the concerned court. This witness was not cross- examined by Ld. Counsel for the accused despite having been given an opportunity to do so.
State v/s Sunny Page 6 of 15 Cr. Case No. 2085/20185. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR and DD No. 28B dated 15.09.2017. Accordingly, the concerned witnesses were dropped by the prosecution.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC was recorded on 12.10.2022 wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was innocent and falsely implicated. The accused chose not to lead any evidence in his defence.
7. It is argued by Sh. Manish Kaushik, Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of 100 quarter bottles of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the State v/s Sunny Page 7 of 15 Cr. Case No. 2085/2018 relevant provisions of law and given my thoughts to the matter.
Findings of the Court
10.It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11.The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12.This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the cross- examination of PW-2 Ct. Sunil (the complainant) reveals that the IO had asked three-four public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public State v/s Sunny Page 8 of 15 Cr. Case No. 2085/2018 person has been joined by the IO in the present case. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"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.'' (Emphasis supplied)
13.In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
14.Perusal of the statement of PW-2 Ct. Sunil as well as PW-4 ASI Rajesh Kadian reveals that they have deposed that Form M-29 was filled up on the spot. However, neither of the said witnesses have deposed that the said form was State v/s Sunny Page 9 of 15 Cr. Case No. 2085/2018 deposited in the Malkhana with the MHC(M) nor has the prosecution placed on record any document to prove the same. In a judgment titled Balban Singh v State in Crl. A. Appeal No. 921 of 2005 decided on 06.05.2008, the Hon'ble High Court of Delhi has observed as under:
"In Radha Kishan, after referring to the Delhi High Court Rules Part III Chapter 18B, regarding proper proof of custody of articles, it was held by this court that evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched."
(Emphasis supplied)
15.In the present matter, no record has been produced by the prosecution to prove that Form No. 29 was submitted with the MHC(M) along with the case property. Thus, failure to deposit Form 29 with the seized sample in the malkhana, creates doubt on the prosecution version.
16.Perusal of the record further reveals that there is a delay of more than ten days in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
State v/s Sunny Page 10 of 15 Cr. Case No. 2085/2018"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
17.In the instant case, alleged recovery was made on 15.09.2017 yet the samples were sent to the Excise Control Laboratory for examination on 26.09.2017, i.e., after about more than ten days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
18.Perusal of the record further reveals that PW-2 Ct. Sunil has stated that PW-4 (the IO) had prepared the seizure memo Ex. PW2/A of the illicit liquor and rukka was thereafter prepared and sent to the police station for registration of FIR though PW-2. Thereafter, present FIR was registered. It is, therefore, clear that the seizure memo of the case property was prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the seizure memo Ex. PW-2/A, however, State v/s Sunny Page 11 of 15 Cr. Case No. 2085/2018 surprisingly it bears the FIR number and it is thus, amazing since the number of the FIR could have come to his knowledge (PW-4) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo which came into existence before registration of the FIR. However, as discussed above, the seizure memo Ex. PW-2/A bears the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"... 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. 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 how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come State v/s Sunny Page 12 of 15 Cr. Case No. 2085/2018 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."
(Emphasis supplied)
19.In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"... 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 State v. Om Prakash 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 State v/s Sunny Page 13 of 15 Cr. Case No. 2085/2018 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."
(Emphasis supplied)
20.Let this court now analyse the evidence appearing on record keeping in mind the above judgments of the Hon'ble High Court of Delhi. In the present case, PW-2 Ct. Sunil, who is the complainant and was present along with the IO (who had prepared the document) has categorically deposed in his cross-examination that the IO had prepared the seizure memo Ex. PW-2/A before PW-2 Ct. Sunil was sent to the police station for registration of the FIR. In such a scenario, it remains unexplained as to how the FIR No. and its details figure on the top of the document Ex. PW- 2/A. This creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said document was prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.
21.Perusal of the record further reveals that there are some inconsistencies in the prosecution version. The complainant, PW-2 Ct. Sunil has deposed that there were residential houses and shops at the spot and that the IO had prepared the seizure memo Ex. PW-2/A before the asal tehrir was sent to the police station. Whereas, PW-4 ASI Rajesh Kadian (the IO) has deposed that there were no residential houses and shops near the place of incident and State v/s Sunny Page 14 of 15 Cr. Case No. 2085/2018 no document or memo was prepared before asal tehrir was sent to the police station.
22.Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a katta which contained illicit liquor was recovered from the possession of the accused. The accused Sunny is, therefore, acquitted of the offence u/s 33(1) Delhi Excise Act.
23.This judgment contains 15 (fifteen) pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
24.Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
ANNOUNCED IN THE OPEN COURT
TODAY, i.e., ON 01.11.2022
Deeksha Digitally signed by
Deeksha Sethi
Sethi Date: 2022.11.01
16:05:23 +0530
Deeksha Sethi
Metropolitan Magistrate-03
South-West District/New Delhi
01.11.2022
State v/s Sunny Page 15 of 15
Cr. Case No. 2085/2018