Delhi District Court
State vs . Pahari @ Guddu Fir No. 343/2016 on 16 November, 2019
State vs. Pahari @ Guddu FIR No. 343/2016
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURT, DELHI
State vs. Pahari @ Guddu
FIR No. 343/2016
U/sec. 33/38 Delhi Excise Act
PS: Mundka
Date of institution of the case: 03.07.2018
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 16.11.2019
Unique I. D. No. 5123/2018
JUDGMENT
a) Date of commission of the offence : 02.09.2016
b) Name of the complainant : Constable Amit Kumar
c) Name of the accused and his parentage : Pahari @ Gudu S/o Sh. Abbu Mohd.
R/o. H.No.612, Om Prakash Ka Makan, SBI wali gali, VPO Mundka, Delhi.
Permanent Address:- Mohalla Ghar Hazar, VPO Maner, PS Maner, District Panta.
d) Offence complained of or proved : Sec. 33/38 Delhi Excise Act
e) Plea of the accused : Pleaded not guilty
f) Final order : Acquitted
Page No.1 of 19
State vs. Pahari @ Guddu FIR No. 343/2016
g) Date of such order : 16.11.2019
h) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 02.09.2016, Constable Dharambir along with Constable Amit was patrolling in the area. When they reached near Nizampur Mod, he received secret information to the effect that vehicle bearing Registration number DL-ILV-2352 carrying illicit liquor would come from Bahardurgarh side. Consequently, they started checking the vehicles by putting the barricades. After some time, the said vehicle came from Bahadurgarh side. Police party checked the vehicle. It was found containing illicit liquor. A DD Entry No. 3-A to this effect was recorded at police station Mundka, which was assigned to Head Constable Manjeet for necessary action. Accordingly, he went to the spot. On search of the car, 28 carton boxes containing 50 quarter bottles each and 6 boxes having 48 quarter bottles each got recovered from the car. The case property recovered was seized and converted into pullanda after taking sample of one quarter from each box. On the basis of the aforesaid recovery, the present case FIR was registered against the accused Pahari @ Guddu and investigation was conducted.
After completion of the investigation, charge-sheet was filed before the court. Consequently, the accused was summoned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused as per norms.
Thereafter, charge under section 33/38 Delhi Excise Act (herein after referred to as the Act) was framed against the accused to which he pleaded not guilty and claimed trial.
With a view to connect the accused with the crime, the prosecution has examined as many as seven witnesses.Page No.2 of 19
State vs. Pahari @ Guddu FIR No. 343/2016 PW1/Head Constable Dharambir was the complainant, who has set the criminal law into motion. He testified that on 02.09.2016, he alongwith Constable Amit was on night patrolling duty. At about 12:40 p.m., when they reached near Nizampur Mor, Rohtak road, they received secret information that one Chhotta Hathi having registration no.DL-1LV-2352 with illicit liquour would come from Bahadurgarh side. On receiving the said secret information, they started checking the vehicles by putting the barricades on the road. After some time, the said vehicle came and they got the vehicle stopped before the barricade and on checking, 28 brown colour patties and 6 patties of white colour of illicit liquor found in the said vehicle. Thereafter, Constable Amit made a telephone call to the police station regarding recovery of illicit liquor. After some time, Head Constable Manjeet came at the spot and checked the patties. On checking 28 brown colour patties were found containing Asli Santra while 6 patties were found containing Impact. Before checking the patties, Head Constable Manjeet requested 4-5 passersby to join the proceedings but none agreed. Each brown colour patty, there were 50 quarter bottles of Asli Santra while each white colour patty, there were 48 colour bottles of Impact. One quarter bottle was taken out from each patty as sample bottle. Two- Two patties were kept in separate plastic kattas and the kattas were sealed with the seal of "MS". Sample bottles were also sealed with the help of white cloth and the same were also sealed with the seal of "MS". Seal after use was handed over to Constable Amit. In the meanwhile, Constable Sandeep from Excise Department also came there and informed them that he too had secret information about this case. IO filled the Form-29 and prepared the rukka and handed over the same to him for the registration of FIR. Accordingly, he went to the police station and got the FIR registered. After registration of the FIR, he came back at the spot and handed over the copy of original rukka and FIR to Head Constable Manjeet. Thereafter, IO prepared the seizure memo of the case property and arrested him Page No.3 of 19 State vs. Pahari @ Guddu FIR No. 343/2016 vide arrest memo Ex.PW1/A. Thereafter, they came back to the police station and deposited the case property in the malkhana.
During his evidence, MHC (M) had produced two quarter bottles (one make of Asli Santra and another of Impact Grain whisky). Both the sample bottles were found sealed with the seal of "PK".
MHC (M) had also placed on record a copy of the order dated 15.05.2018 passed by Sh. Praveen Mishra, Deputy Commissioner (Excise) whereby the case properties i.e. Tata Ace DL1-LV-2352 and 1400 Nips of Asli Santra Masaledar Desi Sarab and 288 Nips of Impact Gran Whisky for sale in Haryana have been confiscated/Mark A. This witness during his cross-examination by the learned defence counsel stated that they reached at the spot on motorcycle. Accused was got stopped at a distance of 20-25 paces. 4-5 persons gathered at the spot. No written notice was given to the public persons, who refused to join the proceedings. IO prepared the seizure memo, site plan and Form M-29 at the spot in his presence. Seal was handed over to Constable Amit. No handing over memo of seal was prepared. They finally left the spot at about 4 a.m. He does not remember whether any article in the personal search of accused was recovered. He denied the suggestion that no recovery was effected from the accused or that he has been falsely implicated in the present case. PW2/ASI Ramesh was the 2nd IO of the case. After completion of the investigation, he had prepared the challan and filed the same in the court. PW3/ASI Narender Singh was the Duty Officer. He proved the DD Entry DD No.3-A and the registration of the FIR/Ex. PW3/C. PW4/Head Constable Praveen testified that on 31.03.2017, he being the MHC(M), handed over one plastic katta of sample duly sealed with seal of "MS" and Form M-29 to Constable Ravinder for depositing at Excise Office, ITO vide RC No.51/21/17 as per the instruction of IO. After depositing the sample Constable Page No.4 of 19 State vs. Pahari @ Guddu FIR No. 343/2016 Ravinder returned the copy of RC. He proved the entry i.e. RC No.51/21/17 as Ex.PW4/A. He further stated that as per the record i.e. entry no.1094, 17 plastic kattas duly sealed with the seal of "MS" was deposited in the Malkhana vide entry no.1094/Ex.PW4/B. During cross-examination he admitted that he was not the MHC (M) when the case property was deposited in the malkhana. He stated that he does not remember when IO asked him to hand over the sample to Constable Ravinder or whether IO had recorded his statement or not.
PW5/Constable Ravinder testified that on 31.03.2017, MHC (M) had handed over to him one katta and excise form duly sealed with the seal of "MS" for depositing the same at Excise office. Accordingly, he deposited the same at Excise Office, ITO and after depositing the same, he returned the copy of RC to MHC (M). IO recorded his statement in this regard. He stated that till the katta remained in his possession, the same was not tampered with.
During cross-examination by learned defence counsel, he feigned ignorance about the contents of the katta as the same was sealed.
PW6/Head Constable Manjeet was the IO of the case. He testified that on
02.09.2016, a DD entry No. 3-A regarding apprehension of one person alongwith illicit liquor was marked to him. Thereafter, he went to the spot where he met Constable Amit and Constable Dharambir and the accused. They produced one Champion Tempo no. DL-1LV-2352 which was loaded with 34 carton boxes. He stated that he asked 5-6 public persons to join the investigation but they left the spot without disclosing their names and addresses. All the carton boxes were checked. Out of the 34 carton boxes, 28 grey colour boxes found containing 50 quarter bottles of Asli Santra Masaledar each and six white colour boxes were found containing 48 quarter bottles of Impact Grain Whiskey. One quarter bottle Page No.5 of 19 State vs. Pahari @ Guddu FIR No. 343/2016 from each box was taken out as sample. Form M-29 was also filled up. All the boxes were kept in 17 plastic kattas, each contained two boxes. Plastic kattas and sample bottles were duly sealed with the seal of MS. Seal after used was handed over to Constable Amit. The illicit liquor and said tempo was seized vide seizure memo Ex. PW6/A and Ex. PW6/B. He recorded the statement of Constable Amit/Ex. PW6/C and prepared the rukka Ex. PW6/D and handed over the same to Constable Dharambir for registration of the FIR. After registration of FIR, he came to the spot and handed over the copy of FIR and rukka to him. Thereafter, accused was arrested vide arrest memo Ex. PW1/A and his personal search Ex. PW6/E was also conducted. Site plan/Ex.PW6/F was also prepared at the spot. After completion of investigation, case property was deposited in malkhana. He further stated that on 31.03.2017, all the sample bottles and Excise Form duly sealed with the seal of "MS" were handed over to Constable Ravinder for depositing the same at Excise Office. After depositing the same, he returned the copy of RC to MHC (M). Thereafter, he got transferred and hence, he handed over the case file to MHC(R).
He during his cross-examination by the learned defence counsel stated that he reached at the spot at about 01:15 a.m. No notice was given to the public persons, who refused to join proceedings. He prepared the seizure memo before sending the rukka. No memo of handing over the seal was prepared. Seal was returned to him next day. Case property was taken to the police station in the same vehicle. Information of arrest of accused was given to the wife of accused. He denied the suggestion that the entire proceedings were done while sitting at the police station. PW7/Constable Amit testified that on 02.09.2016, he was on night patrolling duty alongwith Constable Dharabir in beat area no. 1 and 10, police station Mundka. At about 12:40 a.m., secret information was passed on that one Tempo loaded with illicit liqour will come from side of Bahadurgarh and would go towards Delhi.
Page No.6 of 19State vs. Pahari @ Guddu FIR No. 343/2016 Thereafter, they barricaded at Nizampur Mod. At about 12:50 a.m., one Tempo no. DL-1LB-2352 of white colour came from the side of Bahadurgarh. Indication was made to stop the vehicle and same was stopped. The tempo was being driven by the accused. Tempo was checked and found loaded with carton boxes of liquor. Thereafter, he informed the DO and Head Constable Manjeet came to spot. He asked 3-4 public persons to join the proceedings but they refused. Tempo was checked and found 34 cartoon boxes of illicit liquor. Out of 34 boxes, 28 were of Khakhi colour and 6 were of white colour. The of Khaki colour were found containing 50 quarter bottles each of liquor make of Asli santra masaledar and 6 boxes were found containing 48 quarter bottles of Impact. One quarter bottle was taken out as sample from each boxes. Form M-29 was filled at the spot. All the cartoon boxes were kept in separate kattas. Kattas and sample bottles duly sealed with sealed of "MS". Seal after use was handed over to him. The liquor was taken in possession vide seizure memo Ex.PW6/A and Tempo was seized vide memo Ex.PW6/B. His statement was recorded which was Ex.PW6/C. He further stated that IO prepared the rukka and handed over the same to him for registration of FIR. Accordingly, he went to the police station alongwith copy of rukka and after registration of FIR, he came back to the spot and handed over the same to IO. Accused was arrested vide arrest memo Ex.PW1/A and his personal search was conducted vide Ex. PW6/A. After completion of proceeding, they returned to the police station and case property was deposited in Malkhana. He during his cross-examination by the learned defence counsel stated that he made departure entry when he left the police station for patrolling but he does not remember its number. He stated that they were on a private motorcycle but he does not remember its registration number. He stated that he cannot tell the name of secret informer. He stated that they did not share the secret information with their seniors. He stated that Constable Dharambir made call to the police station regarding recovery of liquor. He stated that he does not remember whether his Page No.7 of 19 State vs. Pahari @ Guddu FIR No. 343/2016 statement was recorded regarding handing over the seal. He stated that he returned the seal to the IO on the same day in the police station after depositing the case property in the malkhana. He stated that no addition or alteration was made in seizure memo Ex. PW6/A and Ex. PW6/B after registration of the FIR. He stated that all the documents were prepared while sitting on the motorcycle. He stated that he deposited the case property in the malkhana. He stated that he does not remember the time. He stated that he deposited the kattas and tempo in the malkhana. He stated that he did not make arrival entry. He stated that he left the spot at about 3-4 a.m. He denied the suggestion that nothing was recovered from the possession of accused or that he has been falsely implicated in this case. He stated that he does not know as to who was the owner of vehicle in which the liquor was loaded. He denied the suggestion that he signed all the documents while sitting in the police station at the instance of IO or that he was deposing falsely being the interested witness.
During the course of trial, accused admitted the report of Deputy Chemical Examiner under section 294 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code).
Thereafter, PE was closed and statement of accused under section 313 of the Code was recorded to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. He denied the allegations and pleaded false implication.
I have heard the rival submissions of the learned APP for State and learned defence counsel and perused the material on record very carefully. Arguments It was argued on behalf of the State that prosecution has proved that accused Pahari @ Guddu was found in possession of liquor without any licence. He submitted that in view of section 52 of the Act, onus lies on the accused to rebut Page No.8 of 19 State vs. Pahari @ Guddu FIR No. 343/2016 the presumption but he failed to rebut the presumption. He therefore, prayed that the accused may be convicted of the charge leveled against him. Per contra, it was argued on behalf of the accused that a false case has been foisted against the accused and nothing was recovered from his possession. He submitted that as per the version of the prosecution, the complainant, who is a Constable, along with another Constable namely Amit was patrolling in the area when they apprehended the accused with illicit liquor on the basis of secret information, however, the departure entry regarding the patrolling duty was not proved by the prosecution. Nor the secret informer was examined.
He further submitted that all the prosecution witnesses are interested witnesses and there is no independent corroboration to their statements. In view of the above, he prayed that accused may be acquitted of the charge leveled against him.
Decision and brief reasons for the same Accused Pahari @ Guddu is charged for the offence punishable under section 33/38 of the Act. Section 33 of the Act provides punishment for unlawful import, export, transport, possession, sale etc of any intoxicant. It reads as under:-
Section 33 - Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act-
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or work; any manufactory or warehouse;
(c) bottles any liquor or purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the Page No.9 of 19 State vs. Pahari @ Guddu FIR No. 343/2016 purpose of manufacturing any intoxicant other than today or tan;
(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 lakh rupees.
It was argued on behalf of the State that since the accused was found in possession of illicit liquor without any licence, the burden rests on him to dispel the statutory presumption raised under section 52 of the Act.
Per contra, it was argued on behalf of the accused that "presumption" can be invoked against the accused only if the prosecution successfully proves the "recovery" beyond reasonable doubt.
Section 52 of the Act provides for presumption as to commission of offence in certain cases. It reads as under:-
52. Presumption as to commission of offence in certain cases. - (1) In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person 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.Page No.10 of 19
State vs. Pahari @ Guddu FIR No. 343/2016 From a bare reading of section 52 of the Act, it is evident that presumption under section 52 could be drawn only if the factum of recovery is proved beyond reasonable doubt.
Now let us see whether the recovery of illicit liquor is proved by the prosecution beyond a reasonable doubt and whether the presumption of offence alleged to have been committed by the accused would arise in this case. Non examination of the secrete informer Foremost contention of the learned counsel for the accused was that that as per prosecution, accused was apprehended with illicit liquor on the basis of secret information; however, the provider of that secret information was not examined as a prosecution witness. Thus, according to the learned defence counsel, prejudice has been caused to the accused by non-examination of the secret informer. In criminal proceedings, it is the obligation of the prosecution to establish a case beyond reasonable doubt against the accused. Where the "narrative" of a given criminal act is not adequately set forth, elements of the offence might not be properly proven, and the prosecution risks losing its case. I am of the considered view that "essential to the . . . narrative" does not mean that all the persons who had witnessed the incident have to be called by the prosecution to prove its case.
In the case in hand, the testimony of the complainant was essential to the unfolding of the narrative and he has been examined by the prosecution as PW1. The secret informer was not cites as a witness and thus he was not called as a prosecution witness. I am of the considered view that a witness who is not called at trial does not offer any evidence against an accused. Secret informer was not the "accuser" in this case. The main witness (the accuser) was the complainant, who has been examined as PW1. The accused had an adequate opportunity to cross-examine him Page No.11 of 19 State vs. Pahari @ Guddu FIR No. 343/2016 and the other prosecution witnesses. Thus, no prejudice was caused to the accused by non-examination of secret informer.
In view of the above discussion, I find no merit in the submission of the learned defence counsel and thus, the same is rejected.
Departure Entry regarding patrolling in the area not proved As per prosecution, police officials were patrolling in the area when they apprehended the accused with illicit liquor.
At this stage, it would be advantageous to refer to clause (c) of Rule 22.49 Chapter 22 Punjab Police Rules, as applicable to NCT of Delhi, which reads as under:-
(c) The hour of arrival and 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 personally by signature or seal.
From the reading of the above mentioned rule, it is evident that all the police officials irrespective of their rank are bound to record their arrival and departure entry at the time of leaving their office.
The Hon'ble Delhi High Court while dealing with a similar situation in the case of Rattan Lal vs. State 32 (1987) DLT 1=1987 (2) Crimes 29 observed as under:
"If the investigating agency deliberately 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."
In the present case, though both the recovery witnesses have testified that they were patrolling in the area when they apprehended the accused with illicit liquor.
Page No.12 of 19State vs. Pahari @ Guddu FIR No. 343/2016 However, no such DD entry is proved by the prosecution to establish that PW1/ Constable Dharambir and PW7/Constable Amit were actually present in the area at the relevant time in connection with patrolling of the area. In view of the above, I am of the considered view that the failure by the prosecution to bring on record the DD entries concerning the departure of the police official for patrolling duty casts a shadow of doubt on the genuineness of prosecution version regarding recovery of illicit liquor from the possession of the accused.
No independent witness was examined despite availability Further, no independent witness was examined by the prosecution despite availability.
It is settled proposition of law that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency then unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public person was not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in absence of the independent public witnesses.
In Ritesh Chakarvati vs. State 2006(4) RCR (Criminal) 480(SC), no effort was made to join an independent witness despite availability. The names of the persons from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held by the Hon'ble Supreme Court of India that the case of the prosecution was doubtful and ultimately, the accused was acquitted.
The principle of law, laid down in Ritesh Chakarvarti's case (supra) is fully applicable to the instant case.
Page No.13 of 19State vs. Pahari @ Guddu FIR No. 343/2016 PW1/Constable Dharambir testified that IO asked 4-5 persons to join the proceedings but none agreed. Similar was the testimony of PW6/IO. When IO was questioned if any written notice was served upon those public persons, he answered in negative.
As per prosecution, public persons were available at the alleged spot of recovery. Yet no witness from the public was associated with the recovery. Thus, failure to join witnesses from the public especially when they are available casts shadow of doubt on the prosecution case regarding recovery of illicit liqour from the possession of accused.
FIR number on the top of the documents which were allegedly prepared prior to registration of the FIR As per the prosecution version, seizure memos of the liquor and vehicle were prepared at the spot prior to registration of the FIR. However, these document bear number of the FIR. Prosecution has not offered any explanation under what circumstances number of the FIR has appeared on the top of these documents. Reliance may be placed on a judgment passed by the Hon'ble High Court of Delhi in the case of Pawan Kumar vs. the Delhi Administration 1989 Crl. L.J 127 wherein it was held as under:
"In the normal circumstances, the FIR number 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 FIR number 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 Page No.14 of 19 State vs. Pahari @ Guddu FIR No. 343/2016 weapon of offence alleged to have been recovered from the accused."
Case property not connected It was contended by the learned defence counsel that the case property i.e. the liquor bottles and the vehicle were never produced before the court for the purpose of identification.
He, therefore, prayed that an adverse inference should be drawn from the failure to produce the case property which was allegedly recovered from the possession of the accused.
In reply, it is submitted by the learned APP for the State that entire case property could not be produced as the same has already been destroyed vide order Mark "A". He submitted that as directed by the Hon'ble Superior courts, samples bottles were produced during the course of trial and the said sample bottles were duly identified by the witnesses.
He also drew the attention of the court towards Mark "A" wherein it is stated that case property has been destroyed as per Rule 132(2) of Chapter -IX of Delhi Excise Rules, 2010. Relevant part reads as under:
"......be disposed off as per Rule 132(2) of Chapter -IX of Delhi Excise Rules, 2010. However, the photo of confiscated vehicle and samples of confiscated liquor are required to be preserved by the Investigating Officer and the SHO of the police station to meet the evidentiary requirements as provided under section 60 of the Delhi Excise Act, 2009..."
Section 60 of the Act provides for destruction of the intoxicants. It reads as under:-
60. Order of confiscation and destruction not to interfere with other punishment (1) The order of confiscation under section 58 shall not prevent imposition of any Page No.15 of 19 State vs. Pahari @ Guddu FIR No. 343/2016 other punishment to which a person is liable under this Act.
(2) Notwithstanding anything contained in any other law for the time being in force, the disposal of confiscated goods in the manner, thereby non-production of case property before the trial court, shall not affect the conviction for an offence under this Act:
PROVIDED that the samples of the intoxicants and the photographs of the confiscated property may be preserved to meet the evidentiary requirements. The Hon'ble High Court of Delhi in the case of Manjeet Singh vs. State while dealing with liquor and narcotic drugs, held as under
"74. Prompt action should be taken in disposal of the liquor bottles/pouches and narcotic drugs after preparing a detailed panchnama containing an inventory; retaining a sample thereof; taking photographs of the entire lot of seized bottles/pouches/narcotic drugs and security bond. The sample shall be kept properly after sending it to the chemical analyst, if required.
75. The sample along with the photographs of the case property and the panchnama would be sufficient evidence at the stage of trial."
In the case in hand, neither the photographs of the entire lot of seized bottles nor the inventory as directed by the Hon'ble High Court of Delhi in the case of Manjeet Singh (supra) is placed on record. Though the MHC (M) had produced two photographs Ex. P-X along with the order Mark "A" during evidence, however, nothing can be deciphered from the photograph, which is of some kattas'. As per prosecution witnesses, 34 carton box were recovered from the vehicle. The said carton boxes were kept in 17 plastic kattas after taking out the samples. Those sample bottles and the kattas were sealed with the seal of "MS". However, the Page No.16 of 19 State vs. Pahari @ Guddu FIR No. 343/2016 sample bottles which were produced during evidence in the court were found sealed with the seal of "PK".
How and when the seal got changed is a mystery shrouded with doubts which has not been explained by the prosecution.
Discrepancy regarding quantity of bottles allegedly recovered from the possession of accused As per prosecution, 28 khaki gatta patties and 6 white gatta petties were recovered from the possession of accused. Each khaki gatta petti was found containing "50 quarter bottles make "Asli Santra" while each 6 white gatta petti was found containing 48 quarter bottles of make "Impact Grain Whisky". From each gatta petti, one bottle was taken out as "sample bottle".
Thus, as per prosecution 1400 quarter bottles of "Asli Santra" and 288 quarter bottles of "Impact Grain whisky" were found loaded in the vehicle which was being driven by the accused. Total number of bottles recovered from the possession was 1688, out of which, 34 bottles were separated as "sample bottles". As per PW4/Head Constable Praveen, "sample bottles" were sent to Excise Control Laboratory for examination vide RC No. 51/21/2017. This fact finds corroboration from the report of Excise Laboratory wherein it is stated as under:-
"..Thirty Four samples ......received in this office...".
Per contra, as per Mark "A", 1400 Nips of "Asli Santra" and 288 Nips of "Impact Grain Whisky" were confiscated by the Deputy Commissioner (Excise) vide order dated 11.06.2018.
"Order of Confiscation under section 59 of the Delhi Excise Act, 2009.
Details of property seized:
1. Tata Ace DL-1LV-2352 Page No.17 of 19 State vs. Pahari @ Guddu FIR No. 343/2016
2. 1400 Nips of Asli Santra Masaledar Desi sarab and 288 Nips of Impact Grain Whisky for sale in Harayana.
......
The goods of the above description were further produced on 17.04.2018 before the Assistant Commissioner (Excise). The test report dated 20.04.2017 submitted by the Excise Control Laboratory confirms goods seized to be liquor. ...
Discussion & Findings ..
... Hence, I confiscate the vehicle and liquor mentioned above under sub-section (2) of section 59 of the Delhi Excise Act, 2009.
I view of the facts mentioned above, I hereby order that the vehicle Tata Ace DL-1LV-...be sold by public auction and the 1372 Nips of Asli Santra and 282 Nips of Impact Whisky .. be disposed off as per rule ......".
Thus, out of total recovered bottles which were 1688, 1654 bottles were directed to be disposed of vide order Mark "A", 34 bottles were consumed by the Excise Control Laboratory while two quarter bottles, make Asli Santra and Impact Grain whisky, were produced before the court during evidence. If we add all these bottles, then the total comes to 1690 (1654+34+2) whereas recovered bottles were 1688. This gives rise to presumption that the two (2) samples bottles produced during evidence in the court were not the part of the bottles which were allegedly recovered from the possession of accused, which creates doubts about the veracity of the State's case.
All these facts taken together create doubt on the entire warp and woof of the prosecution story regarding recovery of illicit liquor from the possession of accused.
Result
Page No.18 of 19
State vs. Pahari @ Guddu FIR No. 343/2016
On overall appreciation of the oral and documentary evidence on record, I am of the view that the recovery of alleged liquor from the possession of accused is not proved beyond reasonable doubt; therefore, there is no presumption under section 52 of the Act.
Consequently, accused PAHARI @ GUDDU is ACQUITTED of the crime charged.
File be consigned to record room after due compliance. Announced in open Court on 16th day of November, 2019 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/16.11.2019 This judgment contains 19 pages and each page bears my signature. Digitally signed by BABITA BABITA PUNIYA PUNIYA Date:
2019.11.18 (Babita Puniya) 16:33:27 +0530 MM-06, West District, Tis Hazari Courts/ Delhi/16.11.2019 Page No.19 of 19