Delhi District Court
State vs . Anthony on 23 August, 2019
1
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 274/13
U/s 33 Delhi Excise Act
PS: KNK Marg
State vs. Anthony
Date of Institution of case:13.09.2013
Date of Judgment reserved: 23.08.2019
Date on which Judgment pronounced: 23.08.2019
JUDGMENT
Case Number : 5282375/16 Date of Commission : 08.07.2013 of offence Name of the : HC Jagdish Singh complainant Name and address of : Anthony S/o Ramu R/o Jhuggi no. B19, JJ Colony, the accused persons Inder Puri, Delhi. Offence complained : 33 Delhi Excise Act of Plea of accused : Not guilty Final Order : Acquitted BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is that on 08.07.2013 at 11:00 a.m. T point, Sector 17, main Bawana Road, Rohini, Delhi within the jurisdiction of PS KNK Marg, accused Anthony was found in possession of illicit FIR No. 274/13 State Vs. Anthony 2 liquor in a Hyundai I10 Car (being a registered owner of the said car also) bearing registration no.DL3CBF1545 having 12 boxes each containing 48 quarter bottles of Asli Santra Masaledar on which for sale in Haryana was written and each of 180 ml, as detailed in seizure memo Mark A also without any permit or licence and accused thereby committed offence punishable under Section 33 Delhi Excise Act. Thereafter, upon investigation statements of witnesses were recorded. Thereafter, an FIR was registered against the accused.
2. Investigation was completed and police report under section 173 Cr.P.C. was filed under sections 33 Delhi Excise Act. Cognizance was taken and accused was summoned.
3. Copy of charge sheet and documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on notice were heard and notice against accused Anthony was framed under section U/s 33 of Delhi Excise Act vide order dated 29.04.2015. Accused pleaded not guilty and claimed trial.
List of witnesses and documents proved PW No. Name Document proved Ex. No. FIR No. 274/13 State Vs. Anthony 3 PW1 ASI Jagdish Singh DD no. 4 Ex.PW1/A Form M29 Ex.PW 1/B Seizure memo of Case Ex. PW 1/C property Seizure memo of car Ex. PW 1/D Rukka Ex.PW 1/P Samples of case property Ex. P1 and P2 PW2 ASI Virender Copy of computerized Ex. PW2/A Kumar copy of FIR endorsement on original Ex. PW 2/B rukka PW3 ASI Shiv Kumar Copy of entry in register Ex. PW3/A no. 19 having the entry Copy of original road Ex. 3/B certificate containing in Register no. 21 PW4 ASI Bijender Arrest memo of Ex. PW 4/A Anthony Personal search memo Ex.PW 4/B of Anthony PW 6 ASI Gulab Singh Site plan Ex. PW 6/A
5. In order to prove its case, prosecution has examined six witnesses.
6. PW1 ASI Jagdish Singh has deposed that on 08.07.13 he was posted at FIR No. 274/13 State Vs. Anthony 4 Special staff outer district, Rohini as HC. On that day he was present at this office sector 1, Avantika, Rohini, Delhi. On that day one secret informer came to his office and gave the information that one boy namely Anthony would came from Bawana in his I10 car silver colour with illicit liquor as he transported the liquor from haryana and would going towards JJ Colony Shakurpor via sector 17, Rohini. He share the above said information to I/C special staff and he discussed with higher officials and instructed him to constitute a raiding party along with SI Ajit, HC Bijender, HC Ashok, Ct. Naveenn Ct. Mandeep and also share the information. The above said information was lodged in DD no. 4 which is Ex. PW 1/A. Thereafter they left the office and proceed towards the spot at about 10:30 a.m. they reached at T point sector 17, main Bawana road where he also brief the raiding party and also requested 4/5 public persons to join the raiding party but one of them agreed and left the spot without disclosing name and address. Thereafter they put th barricades on the road for checking the vehicles he deputed HC Bijender at the main road. At about 11 a.m. one car bearing no. DL 3CB F 1545 Silver colour coming from Bawana side and HC Bijender signals them about the coming of the said car. Secret informer also pointed out towards the car. Thereafter they put the barricade in front of th car and stopped the car at the distance of five paces. The driver of th said car tried to reverse his car but he along with his team apprehended the driver along with car. Accused Anthony checked the car and found 6 cartons of illicit liquors were kept in back seat of the car and 6 cartons were kept in diki of the car. He opened the above FIR No. 274/13 State Vs. Anthony 5 said cartons and each carton were containing Santra masaledar desi sharab for sale in Haryana. He separated one quarter bottle from each peti as sample and remaining quarter bottles were kept in same peties. Thereafter he kept the above said peties in four kattas(three peties in one katta). The above said samples and kattas were sealed with seal of JS and gave the serial no. 1 to 12 as peties and serial no. 1A to 12A to sample. He filed form M 29 which is Ex. PW 1/B bearing signature of ASI Jagdish. Seal was handed over to Ct. Naveen. He seized the case property vide seizure memo mark A and Ex. PW 1/C bearing his signature at point A. He also seized the car vide seizure memo 1/D bearing his signature at point A. Thereafter he prepared rukka Ex. PW 1/E bearing his signature at point A and handed over to HC Bijender for registration of the case he went to the P/S KNK Marg. Thereafter HC Gulab came at the spot to whom he handed over the custody of accused, case property, sample and relevant documents. In the mean time HC Bijender came at the spot along with original rukka and copy of FIR and same was handed over to HC Gulab. HC Gulab prepared site plans and recorded his statements and left the spot. Two samples quarter bottles of santra masaledar sharab for sale in Haryana bearing case FIR no. 274/13 shown to witness and he correctly identified the same. Samples are Ex. P1 and Ex. P2. MHCM produced the destruction order dated 16.07.2014 and the copy of the same Ex. P3. Accused was correctly identified by the witness. His cross examination was nil despite opportunity given.
FIR No. 274/13 State Vs. Anthony 6
7. PW 2 ASI Virender Kumar has deposed that on 08.07.2013 he was posted as HC in PS KNK Marg. On that day he was working as duty officer and his duty hours were from 8:00 a.m. to 4 p.m. At about 12:50 p.m. a rukka was brought by HC Bijender which was sent by IO HC Jagdish for getting the case registered. On the basis of rukka and he registered the present FIR through CIPA Operator under his supervision and the computer system worked properly and nothing adverse happened in the system during that time. He proved the original register containing the FIR no. 274/13 and computerized copy of the same is Ex. PW 2/A bearing his signature at point A. He also made endorsement on original rukka, which is Ex. PW 2/B which bears his signature at point A. Thereafter he handed over the original rukka and copy of FIR to HC Bijender. Sh. Satender Sangwan, SHO PS KNK Marg issued a certificate U/s 65 B IEA which is Ex. P/w 2/C bearing signature of SHO at point A. witness identified the signature of SHO Satender Sangwan as he had worked with him and seen him while writing and signing during the official course of his duties. Accused was correctly identified by the witness.
8. PW 3 ASI Shiv Kumar has deposed that on 08.07.2013 he was posted as HC at PS KNK Marg and was working as MHCM. On that day IO HC Jagdish Singh deposited with him in the Malkhana 12 cartons, each carton containing 47 quarter bottles of Asli Santra masaledar Desi Sarab for sale in Haryana only and 12 quarter FIR No. 274/13 State Vs. Anthony 7 bottles of the same brand which were taken out by the IO as samples from the said cartons. The said cartons and the 12 samples quarter bottles were duly sealed with the seal of JS. IO had also deposited with him the excise form and the articles which were received by him during the personal search of the accused. He deposited the case property and the form in the register no. 19 of the malkhana at serial no. 1038/13 dated 08.07.2013. The original register no. 19 having the said entry and the copy of the same is Ex. PW 3/A. On 16.07.2013 upon the directions of the IO, he handed over the sample quarter bottles and the excise form to Ct. Naveen for depositing the same in the excise lab for examination vide RC No. 64/21/31 dataed 16.07.2013. The original register no.21 containing the original road certificate and the copy of the same is Ex. PW 3/B bearing his signature at point A. After deposition the same in the lab, Ct. Naveen handed over the receipt/acknowledgement to the IO. No tampering etc. was done with the case property till it remained him his custody and seal remained intact. Accused was correctly identified by the witness.
9. PW 4 ASI Bijedner has deposed that on 08.07.2013 he was posted at Special staff Sector 1 Avantika, Rohini as head constable. On that day, HC Jagdish received secret information through secret informer at special staff office, Avantika regarding the illicit liquor. HC Jagidh shared the same information with the higher police official. At the instruction of the senior official, one raiding party was constitute FIR No. 274/13 State Vs. Anthony 8 considered him, HC Jagdish, Ct. Naveen, ct. Mandeep, SI Ajeet and secret informer. The above said persons reached at the pot i.e. Bawana road, TPoint, road towards the sector 17, Rohini. On the way to Rohini, Sector 17, HC Jagdish requested some public persons to join the investigation but one agreed to join. At about 10:30 a.m. HC along with staff put the barricades at the spot and started checking of the vehicles. Meanwhile, one I10 car silver colour which registration number he did not know, came from the side of Bawana and going towards sector 17. At that time secret informer pointed out towards the I10 car. He gave the signal to other police official to alert them. Police official stopped the above said car by putting barricades. HC Jagdish attend the driver of the said car. HC Jagdish also checked the above said car from inside and found illicit liquor Santra Masalaedar Sharab quarters containing in 12 cartons. Upon checking one quarter was taken out from each carton as sample. IO HC Jagdish gave serial no. 1A to 12A and the remaining illicit liquor was put in white kattas and IO seized the same and put the seal of JS. IO prepared the seizure memo of illicit liquor . IO also seized the vehicle. IO HC Jagdish prepared the rukka and made endorsement on the same. After the preparation of the rukka IO handed over the same to him and he went to the PS KNK Marg for registration of FIR. After registration of FIR he returned back at the spot and handed over the copy of the FIR and original rukka to HC Gulab, who was the second IO and further investigation was marked to him. HC Jagdish handed over the accused, case property and the relevant documents to HC Gulab. HC Gulab FIR No. 274/13 State Vs. Anthony 9 arrested accused Anthony and personal search memo. IO prepared the site plan. M 29 form was filled up on the spot. Seal after the use was handed over to Ct.Naveen. IO recorded his statement. The registration number of the above said car was DL 3CAF 1545. Accused was correctly identified by the witness.
10. PW 5 HC Naveen deposed that on 16.07. 2013 he again joined the investigation of this case and on that day on instructions of HC Gulab he took the sample of illicit liquor from concerned MHCM, which was duly sealed with the seal fo JS. He deposited the sample to excise laboratory and received the acknowledgement of the same. Thereafter he handed over the receipt to MHCM PS KNK Marg. IO thereafter recorded his statement and he further stated that no tempering was done with the case property till the time it remained in possession of HC Naveen.
11. PW 6 ASI Gulab Singh has deposed that on 08.07.2013 he was posted at Special Staff, Sector 1, Outer District. On that day he received the DD no. 8A for the purpose of the investigation. After receiving the same, he alone reached at the spot i.e. Tpoint Sector 17, road towards Bawana. After reaching there, he met HC Jagdish, who was already present at the spot. HC Jagdish handed over accused Antony and the case property i.e. illicit liquor and car bearing no. 1545. He did not remember the complete registration number. Ct. Naveen Kumar reached at the spot along with the rukka and copy of FIR and handed over the same to him. He FIR No. 274/13 State Vs. Anthony 10 arrested the accused Antony and personally searched. He deposited the case property i.e. illicit liquor and car in the malkhana, PS KNK Marg. During the investigation he sent Ct. Naveen to deposit the sample at Excise Laboratory. Ld. APP for the state cross examined the witness.
12. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused to which he denied the allegations made against him and claimed himself to be innocent and pleaded that he has been falsely implicated in this case. Accused denied to lead any evidence in his defence and the same was closed.
13. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and carefully perused the record.
14. It is argued by the Ld. APP for the state that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit liquor without permit. It is further stated that there are ocular and documentary evidence on record to bring home the guilt of the accused.
15. Per contra it is argued by the Ld. Counsel for the accused that non joinder of FIR No. 274/13 State Vs. Anthony 11 public witness despite availability cast shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused and that he is falsely implicated in present case. There are no independent evidence against him.
16. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
17. In present case prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened on 08.07.2013 at about 11:00 a.m. at T Point, Sector 17, main Bawana Road, Rohini, Delhi and it is admitted fact that public persons were available at the spot which is evident from the testimony of PW1, who deposed that he requested 45 public persons to join the raiding party. None of them agreed and left the spot but it is again evident from the record that the public witnesses were not asked to join the investigation in writing. It is further FIR No. 274/13 State Vs. Anthony 12 stated by PW1 in his cross examination that the spot was a public place and several vehicles used to ply on that road and he did not served any notice to those public persons who refused to join the investigation. It was held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
18. In present case, IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were admittedly present. Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
19. The another material thing which is required to discuss about the case of prosecution is that on 08.07.2013, as per PW1, he received an information from secret informer who came to his office and stated that one boy by the name of the FIR No. 274/13 State Vs. Anthony 13 accused would come from Bawana in his I10 silver car with illicit liquor as he transported the same from Haryana and would be going toward JJ colony, Shakoorpur via sector 17, Rohini. He further stated that he shared the said information with IC special staff and after discussing with higher officials, he was instructed to constitute a raiding party along with SI Ajeet, HC Bijender, HC Ashok, Ct. Naveen and Ct. Mandeep, meaning thereby that at the relevant time either the raiding team was in PS or on patrolling but in either which way there is neither any arrival nor any departure entry was made by any of the members of the above mentioned raiding team. As per Punjab Rules, they being on duty were required to enter their departure & arrival to & from the PS KNK Marg in the DD register of the said PS. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934: "22.49 Matters to be entered in Register No. IIThe following matters shall, amongst others, be entered:
(c)The hour of arrival and the departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. Note: Lines & Police Posts, where Register no.II is maintained. FIR No. 274/13 State Vs. Anthony 14
20. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW 1, PW4, PW5. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to established the presence of PW 1, PW4, PW5 at the spot. Hence, it creates doubt in the prosecution story.
21. In present case, recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, an inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused. In such circumstances fairness of investigation is doubted. Reliance can be placed on the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that "5. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) 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 FIR No. 274/13 State Vs. Anthony 15 creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
22. In present case the seal was neither handed over to an independent witness. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
23. Another crucial aspect which needs to be drawn attention is that PW6 stated that he prepared the site plan i.e. Ex.P/w 6/A at the instance of the JC Jagdish but perusal of the site plan clearly shows that the same is not countersigned by HC Jagdish, at whose instance it was alleged to be prepared, FIR No. 274/13 State Vs. Anthony 16 therefore, in these circumstances the possibility of the site plan being prepared subsequently at the PS cannot be negated.
24. Therefore, in the light of the above observations and findings and in the absence of any cogent evidence against the accused, he is hereby acquitted for offence under section 33 Delhi Excise Act. Case property be confiscated to the state as per rules and the same be destroyed.
Announced in open court today
on 23.08.2019. Digitally signed by
RICHA RICHA SHARMA
SHARMA Date: 2019.08.23
14:31:10 +0530
(Richa Sharma)
Metropolitan Magistrate
North District Court/Delhi
FIR No. 274/13
State Vs. Anthony