Delhi District Court
State vs . Lakhan Singh on 16 March, 2020
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MAGISTRATE-02 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No. 143/12
PS Timarpur
State Vs. Lakhan Singh
U/s 33 Delhi Excise Act
CIS No.297975/16
CNR No. DLCT-02-002041/16
JUDGMENT
(a) Sr. No. of the Case 297975/16
(b) Date of offence 30.06.2012
(c) Complainant Ct. Mukesh Kumar, PIS No. 28012267
(d) Accused 1. Lakhan Singh S/o. Sh. Pan Singh, R/o. Village
Tarouli, PS Adampur, District Jyotiba Phule
Nagar, U.P.
2. Manoj Kumar S/o. Sh. Sumer Singh, R/o.
Village Hasanpur, Mohalla- Kala Saheed, PS
Hasanpur, District Jyotiba Phule Nagar, U.P.
3. Devender Singh S/o. Param Singh, R/o.
Sahbaj Pur, PS Gajrola, District Jyotiba Phule
Nagar, U.P.
4. Bablu Singh S/o. Lalu Singh, R/o. Village
Nasirpur, PS Bacchraun, District Jyotiba Phule
Nagar, U.P.
(e) Offence 33 Delhi Excise Act
(f) Plea of accused Pleaded Not guilty
(g) Date of Institution 08.08.2012
(h) Final Order Acquitted
(i) Date when judgment was 16.03.2020
reserved
(j) Date of judgment 16.03.2020
1. The present FIR was registered at PS Timarpur against the accused namely Lakhan FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.1 of 21 Singh, Manoj Kumar, Devender Singh and Bablu for the offence U/s 33 Delhi Excise Act.
2. The allegations against the accused that on 30.06.2012, at about 05:45 am, at outer ring road, near Wazirabad, red light, Delhi, accused persons Lakhan Singh, Manoj Kumar, Devender Singh and Bablu were found travelling in Bolero vehicle bearing registration no. UP-23-H-8242 and during checking it was found containing 25 cartons of illicit liquor for sale in Haryana only (in each carton 48 quarter bottles of illicit liquor was found) and 48 bottles of Royal Stag Whiskey for sale in Haryana was also found, without any licence, permit or pass and in contravention of the notification issued by Delhi Administration. According to prosecution, the accused thereby committed offence punishable under Section 33 Delhi Excise Act, 2009.
COURT PROCEEDINGS
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused persons Lakhan Singh, Manoj Kumar, Devender Singh and Bablu in compliance of Section 207 Cr.P.C.
CHARGE
4. Thereafter, charge under Section 33 of Delhi Excise Act was framed against the accused persons Lakhan Singh, Manoj Kumar, Devender Singh and Bablu vide order dated 06.11.2012 passed by Ld. Predecessor to which they pleaded not guilty and claimed trial.
FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.2 of 21 PROSECUTION EVIDENCE
5. In order to prove its case, prosecution has examined 09 witnesses.
6. PW-1 is HC Prem Chand, who deposed that on 30.06.2012, he was posted at PS Timar Pur as MHCM and on that day, ASI Jagdish met him and handed over the seized articles of the present case along with its seizure memo and he deposited the same and made relevant entry in register no. 19 at serial no. 3338, that he also handed over him form M-29 and samples of the case property along with case property in sealed condition and he deposited the same, that copy of register no. 19 is Ex. PW1/A.
7. In the cross examination, PW-1 deposed that he informed to the IO regarding the articles deposited by him in malkhana, that IO read over him his statement, that he has not stated to the IO as to whether anything left out from his statement recorded by the IO. He admitted that statement recorded by the IO in section 161 CrPC does not contain the averment made by him in his examination in chief. He further deposed that he do not remember the time of deposition of sample of the case property, that he did not obtain the signature of IO when he received the articles. He denied that he is deposing falsely.
8. PW-2 is Ct. Mukesh, who deposed that on 30.06.2012, he was posted at PS Timarpur as Ct., that he along with Ct. Pramod Kumar were on patrolling duty on motorcycle no. DL-1SN-2557 from 9:00 pm to 9:00 am, that he along with Pramod were present in the area of PS Timarpur outer ring road and they were checking the vehicles at Gopalpur red light, that at about 5:45 pm one jeep make Bolero No. UP-23-H-8242 came from the side of Karnal bypass, that he gave signal to stop, that driver of the jeep slow down the jeep and suddenly accelerated the speed of the jeep and ran towards the ISBT, that they followed the jeep on motorcycle and stopped them around 100 meter before the Wazirabad red light, that on checking they found four persons sitting in the jeep FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.3 of 21 and the illicit liquor in dickey of the jeep and also under the seat of jeep, that he informed the D.O. about the incident, that after sometime, ASI Jagdish along with Ct. Jitender reached at the spot, that IO checked the jeep and liquor inside it, that IO prepared the tehrir and handed over the same to Ct. Jitender for registration of FIR and he took the same to PS and got FIR registered and came back at the spot along with copy of FIR and original rukka and same was handed over to IO.
9. He further deposed that IO took the accused persons along with liquor with the vehicle to the PS, that IO took out the liquor from the vehicle, that on checking vehicle there were found total 27 cartons, out of which 25 cartons of Besto Whiskey "for sale in Arunchal Pradesh only" containing 48 quarter bottles in each petti, that two cartons were of Royal Stag "for sale in Haryana only" containing 12 bottles in each petti, that IO took out one bottle from each petti as sample and kept the remaining case property in the same pettis, that IO converted the sample bottle & case property into pullanda of plastic sheet and sealed with the seal of JS, that he do not know to whom the seal was handed over after use, that after interrogation, IO arrested all the accused and conducted their personal search vide memos Ex. PW-2/A to Ex. PW-2/H, that IO recorded the disclosure statement of all the accused vide memos Ex. PW-2/I to PW- 2/L, that IO seized the illicit liquor and jeep vide seizure memo Ex. PW-2/M to Ex. PW- 2/N.
10. PW-2 further deposed that panchnama of the case property along with three photographs are mark P-1 (colly), witness correctly identified the case property in the photographs. Thereafter, witness was also shown four photographs of the alleged jeep, that the witness correctly identified the same, the same are Mark P-2 (colly). He admitted that IO prepared site plan at his instance.
11. In the cross examination, PW-2 deposed that he do not remember the DD entry number of his departure from the PS, that at the time of incident, he was on duty on government motorcycle, that he do not know whether IO had collected the record of his FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.4 of 21 duty on motorcycle, that on the day of incident, his duty was on outer ring road in the jurisdiction of PS Timarpur, that they were checking the vehicle after the crossing of Gopalpur red light, that there were no public persons on the spot when they stopped the vehicle, that he had not asked any public person to join the investigation after apprehending the accused, that he made call to the PS by his personal mobile, that IO reached at the spot on his private motorcycle after about 15 minutes of making call but he cannot tell the exact time, that Ct. Jitender took the rukka at about 6:30 am and returned back at the spot at about 8:30 am, that the photographer was called to take the photographs at the PS, that he do not remember what proceedings were conducted by the IO at the spot, that he do not remember whether IO gave any notice to the public persons to join the investigation, that he do not know whether he signed the site plan or not, that IO seized the case property and the jeep at the PS, that he cannot tell individually the name of the accused person as he identified them due to their physical appearance. He denied that alleged recovery was not effected from the accused persons, that while returning to their home, the accused persons hit his motorcycle and that is why a false case has been instituted against the accused persons, that case property has been planted upon them, that he is deposing falsely.
12. PW-3 is ASI Sheelawati, who deposed that on 30.06.2012, she was posted as Duty Officer, that on that day, she got registered the FIR of the present case Ex. PW-3/A, that she made endorsement on rukka Ex. PW-3/B.
13. PW-4 is Ct. Pramod Kumar, who deposed that on 30.06.2012, he was posted as Ct. at PS Timar Pur, that he along with Ct. Mukesh were on patrolling duty on his bike bearing no. DL-1SS-2557 in the area near Gopal Pur, Red Light, that they started checking vehicles in near picket and thereafter, they saw one bolero jeep bearing no. UP-23H-8242 coming from Karnal side and it was having four persons present, that they made signal to stop the above said jeep but they only slowed down the jeep and did not stop the same and fled away, that they chased the above said jeep with the help of their motorcycle and stopped them ahead of Wazirabad red light, that on FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.5 of 21 checking, they found 25 cartons which were lying in the dickey and beneath the seats, that on checking the cartons, they found illicit liquor in quarter bottles in each carton make of N. V. Group and some full bottles of Royal stag Whiskey, that Ct. Mukesh shared this information at PS Timar Pur, that in the meantime, IO ASI Jagdish along with Ct. Jitender came at the spot and they narrated the whole incident to them, that IO recorded the statement of Ct. Mukesh and done the paper work in his presence, that Ct. Jitender went to PS and after some time came back and handed over the copy of FIR and original rukka to IO, that IO recorded his statement and relieved him.
14. Thereafter, three photographs of the case properties in question are shown to the witness, that the witness has correctly identified the case properties after looking the photographs, that photograph are Mark P1 (Colly.) in the testimony of PW2, that four photographs of the case properties (alleged jeep) in question were shown to the witness, that witness has correctly identified the case property after looking at photographs, that photograph are Mark P2(Colly.)
15. In the cross examination, PW-4 deposed that he do not remember his departure entry from PS, that he do not remember the picket number, that barricade were already placed there, that he had not mentioned about the barricades in his statement recorded u/s 161 Cr. P.C that barricades were already there, that he had not made any public persons as witness when they stopped the vehicle, that he do not know at which place of vehicle how many quarter bottles or full bottles placed in the jeep, that he do not know how many Royal stag bottles were present in the jeep, that IO reached at the spot at about 6.30 am, that he do not know what was the first paper/document prepared by the IO, that he do not remember the time when Ct. Jitender left for PS with rukka and at what time he came back, that he do not remember on which date his statement was recorded by IO and at what place. He admitted that the alleged case property i.e. illicit liquor which was found on jeep is not shown in the photographs which is in judicial file, that photographs were not taken in his presence, that so he cannot tell the name of photographer. He denied that the alleged recovery was not FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.6 of 21 effected from the accused persons, that while returning to their home, the accused persons hit his motorcycle and that is why a false case has been instituted against the accused persons. He denied that case property has been planted upon them, that he is deposing falsely.
16. PW-5 is Ct. Harpal, who deposed that on 03.07.2012 he was posted at PS Timar Pur as constable, that he was involved in the investigation of the present case and MHC(M) handed over to him exhibits in sealed form containing 25 quarter bottles and two bottles of illicit liquor involved in present case vide RC No. 128/21/12 alongwith excise form for depositing the same in Excise Office, Vikas Bhawan, ITO, Delhi, that he went there and deposited the same and thereafter he returned with one copy of RC and handed over the same to MHC(M) CP, that during the period exhibits remained in his custody they are not tampered with it or seal affixed on it, that IO recorded his statement.
17. In the cross examination, PW-5 deposed that he do not remember the time when MHC(M) CP handed over to him case property. He admitted that time is not mentioned in his statement that is why he cannot tell the time. He further deposed that his statement was never recorded by the IO. He admitted that case property material like glass or plastic is not mentioned, that the seal is not mentioned in his statement. He further deposed that IO recorded his statement at PS but he do not remember the time, that he do not remember in which room or place IO recorded his statement, that IO read over and explained to him his statement, that he had signed his statement recorded under section 161 Cr.P.C, that he read over his statement. He admitted that he was constable not ASI, that in his statement it is mentioned that he was ASI. He denied that he is deposing falsely.
18. PW-6 is Pushpraj, who deposed that he is the owner of jeep bearing registration no. UP-23-H-8242, that he got released the aforesaid vehicle on superdari from the Court for amount of Rs. 3 lakhs, that IO recorded his statement, that the same is Ex. P-6. It is FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.7 of 21 put to the witness who was driving/having possession of the aforesaid vehicle on 30.06.2012, to which he replied that he do not remember due to lapse of time.
19. PW-7 is Mohd. Yaseen, who has brought the record i.e., student registration register of year 2006-2008, that he was authorised by Principal of college to depose in this case, that the authorisation letter is Ex. PW7/A1, that as per record Manoj Kumar Goswami was the student of their college and on 17.07.2006 he was admitted in IX-B class and thereafter he failed in class X in year 2007-2008, that as per their record his date of birth is 03.07.1992 and Principal of their college issued a certificate showing aforesaid fact on 10.07.2012, that certificate is Ex. PW7/A.
20. In the cross examination, PW-7 admitted that aforesaid certificate was not prepared by the then Principal in his presence, that he has no personal knowledge of this case.
21. PW-8 is Ct. Jitender, who deposed that on 30.06.2012, he was posted as Ct. at PS Timar Pur, that he along with IO/ASI Jagdish Singh was performing emergency duty from 08:00 PM to 08:00 am, that on receiving information by IO, he along with IO went to outer ring road red light Wazirabad where they met Ct. Mukesh and Ct. Pramod Kumar, who had apprehended four persons namely Devender, Babloo Singh, Lakhan Singh and Manoj and one Bolero jeep bearing No. UP 23H 8242, that in the aforesaid jeep there were cartons and bottles of illicit liquor in its dickey and under seat, that on checking by IO, they found 25 cartons which were lying in the dicky and beneath the seats and each contained 48 quarter bottles of illicit liquor and there were 48 bottles of Royal Stag which were in open condition in petti, that on checking the cartons, they found illicit liquor in quarter bottles in each carton make of N. V. Group and some full bottles of Royal stag Whiskey, that IO took one quarter bottle as sample from each carton and all the remaining quarter bottles were kept in the same carton from where it were taken, that IO tied all the samples bottles and all cartons in white cloth and converted them in pullanda and sealed with the seal of JS, that IO gave serial number S1 to S25 to all the cartons and P1 to P25 to all sample bottles, that IO placed 48 FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.8 of 21 bottles which were in opened condition in two plastic bags and each bag were containing 23 bottles each as IO have also taken two bottles as samples from two plastic bags, that IO also converted them into pullandas as aforesaid, that IO prepared seized them vide seizure memo Ex. PW2/M, that IO filled M-29 form, that IO recorded the statement of complainant Ct. Mukesh and prepared tehrir and handed over the same to him for registration of FIR at PS, that after registration of FIR, he alongwith copy of FIR and original rukka returned to spot and handed over the same to IO, that IO seized the aforesaid jeep vide seizure memo Ex. PW2/N, that IO arrested all the aforesaid accused persons and conducted their personal search vide memos Ex. PW2/A to Ex. PW2/H, that IO recorded the disclosure statement of all the accused which are Ex. PW2/I to Ex. PW2/L, that IO recorded his statement.
22. Thereafter, three photographs of the case properties in question were shown to the witness from Judicial file, that witness has correctly identified the case properties after looking at the photographs, that photograph are Mark P1(Colly.), that four photographs of the case properties(alleged jeep) in question were shown to the witness, that witness has correctly identified the case properties after looking the photographs, that photograph are Mark P2(Colly.)
23. In the cross examination, PW-8 deposed that on that day IO made the departure entry, however, he do not know its number, that there was no picket where they went to the spot, that there was red light, that they went to the spot on private motorcycle of IO, that he also checked the vehicle where they found the illicit liquor, that he cannot tell how many cartons were placed under seats and how many were in dickey, that IO stopped the public persons to join the investigation, however, they left the spot without disclosing their name and address, that IO did not give any notice to any public person in his presence, that there was no barricade at the spot when they reached there, that in pettis there were quarter bottles, that 48 bottles of Royal Stag were separate, that he went to PS for registration of case at about 08:30 am with rukka, that he remained at PS for about 2 hours, that he alongwith IO reached at spot at about 06:30 am, that he FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.9 of 21 cannot tell what was the first paper prepared by the IO, that he do not remember at what time his statement was recorded, that IO recorded his statement at spot by placing the plain paper at bonnet at the seized jeep, that jeep was seized by the IO at the spot, that in his presence, IO also recorded statement of Ct. Mukesh and Ct. Pramod, that he do not remember whether IO obtained the signature of other police staff present at spot on the documents prepared by him or not, that photographs of the case property i.e., jeep and illicit liquor, which are placed in judicial file were not got clicked at spot, that he has no knowledge of any document, photograph or videography, the alleged case property i.e., illicit liquor was recovered from jeep as well as from the possession of accused persons, that no photographs were taken of the case property in his presence, that he cannot tell the name of relatives of accused persons to whom the information of their arrest was given by IO, that from the personal search of accused Babloo the amount of Rs. 2010/- and one mobile phone were recovered. He denied that he did not participate in the investigation of present case, that accused persons were falsely implicated, that case property was planted upon accused persons, that he is deposing falsely.
24. PW-9 is SI Jagdish, who deposed that on 30.06.2012, he was posted at PS Timarpur as ASI, that he was present in the PS, that duty officer informed him that, Ct. Pramod and Ct. Mukesh apprehended four persons along with bolero Car containing illicit liquor and ask for sending the IO, that he along with Ct. Jitender reached at the spot i.e. near Wazirabad Red Light, Outer Ring Road, Delhi, where he met Ct. Pramod and Ct. Mukesh, who have produced one bolero car along with four accused persons with the illicit liquor which was kept inside the car, that he checked the bolero car UP-23H-8242, that in the aforesaid car he found cartons of illicit liquor which was lying in the dickey and back side of the seat, that all the cartons were taken out from the car, that there were total 25 cartons and each carton was containing 48 quarter bottles bearing the label of 'Besto Whiskey', that he has taken out one sample from each of the cartons, that he has also found 48 bottles of illicit liquor 'Royal Stag Whiskey', that he has taken out two sample bottles of Royal stag whiskey and remaining bottles were kept in two FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.10 of 21 plastic sack bags, that all the case property was sealed with the seal of 'JS', that samples taken out from the cartons were 25 which were given S. No. as P-1 to P-25, that cartons were given S.Nos. from S-1 to S-25, that both the plastic sack bags in which Royal Stag Whiskey was kept was given S. No. S-26 and S-27 and their samples were given S. No. P-26 and P-27.
25. Thereafter, he has seized all the case property vide seizure memo Ex. PW-2/M, that he has filled form M-29 at the spot which is PW-9/A, that he seized the offending bolero car vide seizure memo Ex. PW-2/M, that he prepared rukka which is Ex. PW-9/B and handed over the same to Ct. Jitender for registration of FIR, that he prepared site plan at instance of Ct. Mukesh which is Ex. PW-9/C, that Ct. Jitender came back at the spot and handed over to him copy of FIR and original rukka, that he has surfaced the FIR number on the site plan and on the seizure memo, that the name of the accused persons were Lalit, Manoj and he do not remember the name of two other accused persons, that he interrogated them and arrested them vide arrest memos Ex. PW-2/A, Ex. PW-2/B, Ex. PW-2/C and Ex. PW-2/D and conducted their personal search vide memos Ex. PW-2/E, Ex. PW-2/F, Ex. PW-2/G and Ex. PW-2/H.
26. He further deposed that the recovered illicit liquor was taken to PS along-with accused persons, Ct. Mukesh, Ct. Pramod and Ct. Jitender and Bolero Car, that case property was deposited in malkhana of PS, that after interrogation, disclosure statement of accused Manoj, Devender Singh, Bablu and Lakhan were recorded which are Ex. PW- 2/I, Ex. PW-2/J, Ex. PW-2/K and Ex. PW-2/L, that he recorded the supplementary statement of Ct. Mukesh and statements of Ct. Jitender and Ct. Pramod, that he got conducted the medical examination of the accused persons and they were produced before the concerned Court and they were sent to JC. He further deposed that he sent the sample bottles to the Excise Lab and result of which was obtained, that he prepared the chargesheet and filed the same in the Court, that case property is Ex. P- 1 (colly) and P-2 (colly). He further deposed that the information regarding the apprehension of accused persons along with illicit liquor was received through DD No. FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.11 of 21 12-A which is Ex. PW-9/D, that he has collected the age proof of accused from the father of accused Manoj Kumar and seized the same vide seizure memo Ex. PW-9/E, that after age verification, accused Manoj was found major, that bolero car was released on superdari by the order of Court.
27. In the cross examination, PW-9 deposed that the information regarding the apprehension of accused persons along with illicit liquor was given to him by the IO at about 6:10 am, that he do not remember the name of the duty officer, that he reached at the spot through his private motorcycle, that he has not mentioned the same fact in his investigation, that during his course of duty, he has informed his department that he is using his own motorcycle, that he cannot produce any document regarding the said information to the department, that he cannot tell the place where which cartons of illicit liquor were placed in the car, that the cartons of illicit liquor were taken out from the car at the spot, that he has not captured any photographs of the illicit liquor at the spot to show that the case property was counted or recovered at the spot, that he has taken out the case property i.e. illicit liquors at about 6:30 am from the bolero car, that no public persons were gathered at the spot while he took out the case property from the bolero car, that he has asked 4-5 public persons to join the investigation, however, they refused to join the same, that he has not recorded the name and addresses of those persons who refused to join the investigation, that he has not served any notice upon those public persons, that he himself counted the case property at the spot, that he do not remember the colour of the box of Royal Stag bottles, that he has sent the one constable for taking plastic sack bags, however, he do not remember the name of said constable, that the said constable does not disclose the fact from where he brought the said plastic sack bags, that the case property was seized at the spot, that the name of the owner of the Bolero car was Pushpraj, that rukka was taken to PS by Ct. Jitender at about 8:30 am and he came back from the PS at about 10:00 am, that he do not remember whether he took the signature of Ct. Mukesh on the site plan or not, that the constable Pramod was on government vehicle, that he do not remember the registration number of said government vehicle/motorcycle, that he prepared the FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.12 of 21 seizure memo of liquor, that he has prepared rukka, seizure memo of car and seizure memo of illicit liquor before the registration FIR and after registration of FIR he prepared the site plan, that he has obtained the signatures of concerned witnesses on the aforesaid documents at the spot, that he departed from the PS vide DD No. 12-A, that all the constables were in police uniform, that when he reached at the spot there was no barricade put at the spot. He denied that nothing was recovered from the accused persons. He admitted that he has not taken the photographs of the illicit liquor at the spot, that he cannot identify the accused persons present in the Court today by their names specifically. He denied that the accused persons have been falsely implicated in the present case because their vehicle was hit against the motorcycle of Ct. Mukesh and due to that false case was registered against them, that all the proceedings were conducted while sitting in the PS, that he is deposing falsey.
28. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
29. Statement of the accused persons Manoj Kumar, Lakhan Singh, Devender Singh and Bablu under Section 313 Cr.PC was recorded vide order dated 17.02.2020 by putting entire incriminating evidence to the accused persons. They denied the allegations against them and stated that they have been falsely implicated in the present case. Accused persons chose not to lead DE, accordingly, Defence evidence was closed and matter was fixed for final arguments.
30. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.13 of 21
31. In the case in hand the accused persons Manoj Kumar, Lakhan Singh, Devender Singh and Bablu are charged for the offence u/s 33 Delhi Excise Act.
32. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant/ state in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed as follows:-
33. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused persons and alleged recovery of liquor makes the prosecution version highly doubtful. Perusal of the record shows that all the PWs have categorically deposed that no efforts have been made to join the public witness and IO (PW-9) himself deposed that he has not served any notice to the public persons who refused to join the investigation, thereby reflecting no sincere efforts have been made by the police official to join public witnesses. It is apparent from the testimony of PWs that all the proceedings regarding seizure and sealing of case property was done by police officials who were posted in the same police station and not by any independent witness which makes it highly probable that the entire proceeding were conducted at the police station, that the case property was tampered with and that the alleged recovery was planted upon the accused persons at the police station.
34. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining independent witnesses. FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.14 of 21
35. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
36. It is repeatedly laid down by this court that 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 place was residential area and one or two persons from the locality could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the public persons had declined to join the raiding party, the police could have later on taken legal action against such persons because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
37. In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. 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".
38. Considering the aforesaid observations made by the Higher Courts, the omissions /failure on the part of investigating agency to join independent public witnesses creates FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.15 of 21 reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
39. Furthermore, the testimony of PWs shows that Form M-29 was prepared before sending the rukka. However, perusal of the said document clearly shows that the FIR number and other particulars of the present case are mentioned on the said document. No explanation has come from the prosecution to justify as to how the FIR number surfaced on M-29 form document which was prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said document were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said document. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
40. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.16 of 21 In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
41. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
42. It is pertinent to mention here that investigation of the IO is silent regarding the source of liquor and IO had not inquired from the accused about the source of liquor recovered from the accused for the reasons best known to him.
43. PW-1 is HC Prem Chand, who deposed that he deposited the seized article, form no. M-29 and sample of case property, however, in the cross examination, he deposed that he do not remember the time of deposition of case property and he has not obtained signature of IO when he received those articles from the IO, thereby raising doubt FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.17 of 21 about his role in the investigation of the present case.
44. PW-2 is constable Mukesh, who deposed in his examination in chief that IO prepared tehrir at the spot, however, in the cross examination he categorically deposed that he do not remember as to what proceedings were conducted by the IO at the spot, thereby raising doubt about genunity of his deposition.
45. PW-2 admitted in his cross examination by Ld. APP for the State that IO prepared site plan at his instance, however, in the cross examination by defence counsel he deposed that he do not remember whether he signed the site plan or not, thereby again raising doubt about the preparation of site plan at his instance. He further deposed that IO seized the case property and jeep at the spot, however, PW-8 and PW-9 deposed that the jeep and case property was seized by the IO at the spot, thereby contradicting the testimony of PW-2 regarding the place of seizure of jeep and case property.
46. PW-3 admitted in his cross examination that he has not signed the endorsement of rukka but his name is mentioned over there.
47. PW-4 deposed that they checked the vehicle near picket, however, in the cross examination, he deposed that he do not remember the picket number. He further deposed that he do not remember his departure entry from the concerned PS. PW-4 further deposed that barricades were already placed but he has not mentioned about the barricades in his statement recorded under Section 161 Cr.P.C, thereby reflecting material improvement.
48. PW-4 deposed in his examination in chief that he found illicit liquor in the dickey and beneath the seat of the vehicle, however, in the cross examination he deposed that he do not know at which place how many quarter bottles or full bottles were placed in the jeep as well as he do not know how many royal stag bottles were present in the jeep, FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.18 of 21 thereby raising doubt about his testimony as failed to stood firm in support of his contention in examination in chief.
49. PW-4 further deposed that IO recorded the statement of constable Mukesh and done the paper work in his presence, however, in the cross examination he categorically deposed that he do not know as to what was the first paper/document prepared by the IO, thereby again raising doubt about his testimony.
50. He further admitted in his cross examination that alleged case property i.e. illicit liquor which was found on jeep is not shown in the photographs which are placed on judicial record and photographs were not taken in his presence, thereby raising doubt about the genuinity of case property being recovered from the alleged vehicle in the possession of accused persons and not planted upon accused persons in concerned PS.
51. PW-5 deposed that MHC(M) handed over to him exhibits in sealed form, however, in the cross examination he deposed that he do not remember the time when MHC(M) handed over him the case property, thereby he failed to stood firm in support of his contentions.
52. PW-5 in his examination in chief deposed that IO recorded his statement, however, in the cross examination he deposed that his statement was never recorded by the IO and few lines later he further deposed that IO recorded his statement at PS but he do not remember the time as well as room or place where IO recorded his statement, thereby contradicting his testimony frequently regarding recording of his statement by the IO and raising doubt about veracity of his testimony.
53. PW-6 is registered owner of the vehicle who categorically deposed that he do not remember as to who was driving the vehicle on the day of incident.
FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.19 of 21
54. PW-8 deposed in his examination in chief that there were cartons and bottles of illicit liquor in the dickey and under the seat, however, in the cross examination he deposed that he cannot tell as to how many cartons were placed under the seat and how many were in the dickey, thereby he failed to substantiate the allegations in question specifically.
55. It is also pertinent to note that PW-8 deposed that there was no barricade placed on the spot which is in contradiction with the testimony of PW-4 who deposed in his cross examination that barricades were present over there.
56. PW-8 deposed in his cross examination that IO made the departure entry, however, he do not know its number, thereby again raising doubt about veracity of his testimony.
57. PW-8 further deposed that there was no picket when he went to the spot which is again in contradiction with the testimony of PW-4 who deposed that they were checking the vehicle near the picket.
58. PW-8 further deposed that IO recorded his statement, however, in the cross examination, he deposed that he do not remember at which time his statement was recorded , thereby he failed to substantiate the fact of recording of his statement in specific terms. He further deposed that photographs of the case property were not clicked at the spot, thereby reflecting bad investigation.
59. PW-9 also failed to disclose the exact place where the cartons of illicit liquor were placed in the car and categorically deposed in his cross examination that he cannot tell the place specifically where the cartons of illicit liquor were placed in the car. He further deposed that that cartons of illicit liquor were taken out from the car at the spot which is in contradiction with the testimony of PW-2, who deposed that illicit liquor was taken out from the car at the PS. FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.20 of 21
60. PW-9 further deposed that he has not captured any photographos of illicit liquor at the spot to show that the case property was counted or recovered at the spot spot, thereby again reflecting bad investigation.
61. He further deposed that he do not remember the colour of the box of royal stag bottle and he has sent one constable for taking plastic sack bag, however, he do not remember the name of said constable also. He further deposed that he do not remember whether he took the signatures fo constable Mukesh on the site plan or not thereby again reflecting bad investigation by him. PW-9 further admitted in his cross examination that he has not taken the photographs of illicit liquor at the spot and he cannot identify the accused persons present in the Court by their names specifically, thereby he failed to substantiate the guilt of the accused persons beyond reasonable doubt.
62. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, non joining and examination of independent public witnesses, bad investigation, material contradiction in the testimony of PWs, the prosecution has failed to establish its case against the accused persons beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused persons and therefore, accused persons Lakhan Singh, Manoj Kumar, Devender Singh and Bablu stands acquitted of the offence u/s 33 Delhi Excise Act accordingly.
63. Necessary Bail Bonds with sureties along with latest passport size photographs and residence proof furnished in compliance of Section 437 A CrPC. Same are accepted for a period of six months from today.
64. File be consigned to the record room after due compliance.
Announced and Signed in the Open Court
on 16.03.2020 (Shilpi Jain)
MM-02 (Central)/THC/Delhi
16.03.2020
FIR No. 143/12 PS Timarpur State Vs. Lakhan Singh & Ors. Page no.21 of 21