Delhi District Court
State vs . Rahul on 30 July, 2020
IN THE COURT OF SH. ARUN KUMAR GARG
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
(SOUTH-WEST), DWARKA COURTS, DELHI
IN THE MATTER OF :
State Vs. Rahul
FIR No. 603/2016
PS : Uttam Nagar
U/s 33/38 Delhi Excise Act
Date of Institution : 11.08.2017
Date of Judgment : 30.07.2020
JUDGMENT
1. Serial No. of the case : 6540/2017
2. Name of the Complainant : HC Jai Bhagwan
3. Date of commission of offence : 21.07.2016
4. Name of accused person : Rahul S/o. Pardeep Kumar R/o.
T-100/A-1, Baljeet Nagar, New
Delhi
5. Offence charged : U/s 33/38 Delhi Excise Act, 2009
6. Plea of accused : Not guilty
7. Final Order : Acquitted
BRIEF REASONS FOR ORDER:
1. The accused has been chargesheeted for committing offence punishable under Section 33/38 of Delhi Excise Act, 2009.
2. Brief case of the prosecution as per the chargesheet is that on 21.07.2016, HC Jai Bhagwan alongwith Ct. Kuldeep was on patrolling State Vs. Rahul ARUN Digitally signed by ARUN KUMAR FIR No. 603/2016 PS Uttam Nagar Judgment dated 30.07.2020 KUMAR GARG Page 1 of 10 Date: 2020.07.30 GARG 18:16:02 +05'30' duty near Uttam Nagar bus terminal vide DD No.50B and at about 07:00 pm, he noticed one vehicle Mahindra Champion bearing registration no. DL1LH8873 coming from the side of Dwarka Mor and going towards Tilak Nagar. When the complainant HC Jai Bhagwan was checking the vehicles, accused tried to fled away alongwith the vehicle, whereafter the said vehicle was stopped by the complainant on the side of the road and checked. On checking, complainant found the vehicle full of illicit liquor. Upon counting, he found 90 cardboard boxes containing 50 quarter bottles each of 180 ml each of "asli santra masaledar desi sharab for sale in Haryana only" and 14 cardboard boxes containing 48 quarter bottles each of 180 ml each of "impact grain whiskey for sale in Haryana only".
3. The complainant HC Jai Bhagwan has thereafter seized the aforesaid illicit liquor after taking out one bottle per cardboard box as sample and sealed the same. He has also filled up form M-29. After seizure of the aforesaid illicit liquor as well as the vehicle, he prepared tehrir and got the FIR registered at PS Uttam Nagar through Ct. Kuldeep. Thereafter, the investigation was assigned to IO/HC Naresh who had reached at the spot and after arrest and personal search of accused had recorded his disclosure statement. Subsequently excise result in respect of the aforesaid liquor was collected by the IO and after completion of the investigation, chargesheet was filed before the court.
4. On receipt of chargesheet, cognizance of the offence was taken vide order dated 12.10.2017 and accused was summoned. Subsequently, after compliance with the provisions of Section 207 Cr.P.C and hearing submissions on behalf of State as well as accused, charge U/s 33/38 State Vs. Rahul FIR No. 603/2016 PS Uttam Nagar ARUN Digitally signed by ARUN Judgment dated 30.07.2020 KUMAR KUMAR GARG Page 2 of 10 Date: 2020.07.30 GARG 18:16:16 +05'30' Delhi Excise Act, 2009 was framed against the accused vide order dated 09.04.2018, to which the accused pleaded not guilty and claimed trial.
5. Prosecution has thereafter examined six witnesses in support of its case, whereas, the formal proof of DD No.50B and FSL result was dispensed in view of the statement of accused U/s 294 Cr.P.C and the said documents were endorsed as Ex.PX-1 and Ex.PX-2 respectively.
6. Complainant, HC Jai Bhagwan has been examined by prosecution as PW-1. He has proved the rukka Ex.PW-1/A, seizure memo of illicit liquor Ex.PW-1/B and form M-29 Ex.PW-1/C. The case property destruction order has also been tendered by him in his evidence as Ex.PW-1/D.
7. DO/ASI Surjeet Singh has been examined by the prosecution as PW-2. He has proved the FIR Ex.PW-2/A, his endorsement on rukka Ex.PW-2/B and certificate U/s 65B of Indian Evidence Act in support of the FIR as Ex.PW-2/C.
8. Sh. Gagandeep Singh, registered owner of the vehicle in which the illicit liquor was allegedly being transported, has been examined as PW-3 and he has tendered copies of form-29, 30 and cash receipt as Mark-A, Mark-B and Mark-C respectively in terms of which he has allegedly sold the aforesaid vehicle to one Kailash Chandra on 26.08.2013 for a consideration of Rs.29,200/-.
9. Ct. Kuldeep, who was allegedly on patrolling duty alongwith HC Jai State Vs. Rahul FIR No. 603/2016 PS Uttam Nagar ARUN Digitally signed by ARUN Judgment dated 30.07.2020 KUMAR KUMAR GARG Page 3 of 10 Date: 2020.07.30 GARG 18:16:27 +05'30' Bhagwan, has been examined by prosecution as PW-4 and he has proved the arrest memo of accused as Ex.PW-4/A besides his personal search memo as Ex.PW-4/B.
10. HC Anil Kumar, who has deposited the sample of the case property with Excise Control Laboratory after taking the same from police station, has been examined as PW-5.
11. ASI Mukesh Kumar, MHC(M) PS Uttam Nagar on the date of deposition of case property by the IO at PS Uttam Nagar, has been examined by the prosecution as PW-6.
12. All the aforesaid witnesses except PW-3 and PW-6 were duly cross-examined by Ld. Counsel for accused. PW-3 and PW-6 were not cross-examined by accused despite opportunity.
13. No other witness has been examined on behalf of prosecution and hence, statement of accused U/s 313 Cr.P.C was recorded by Ld. Predecessor of this court on 03.05.2019 after putting entire incriminating evidence to the accused. Accused has alleged that he was merely driving the vehicle in question and was not aware of the contents of paties kept in the vehicle. According to him, he has been falsely implicated in the present case and nothing was recovered from his possession. He has further stated that the case property has been planted upon him. Accused chose not to lead any evidence in his defence and hence, matter was adjourned for final arguments.
ARUN Digitally signed by ARUN KUMAR KUMAR GARG Date: 2020.07.30 State Vs. Rahul FIR No. 603/2016 PS Uttam Nagar GARG 18:16:37 +05'30' Judgment dated 30.07.2020 Page 4 of 10
14. Written arguments were thereafter filed on behalf of accused and it was submitted that the court may pass appropriate orders on the basis of aforesaid written arguments.
15. It was submitted by Ld. APP for the State that on the basis uncontroverted testimonies of PWs, the prosecution has been able to prove its case U/s 33/38 of Delhi Excise Act against the accused beyond reasonable doubt and hence, accused should be convicted for the aforesaid offence.
16. On the other hand, it has been submitted by Ld. Counsel for accused in his written arguments that the case of prosecution is fraught with contradictions and hence, accused is entitled to be acquitted of all charges. It is submitted by Ld. Counsel for accused that admittedly the seal of the complainant after alleged sealing of the case property was handed over to the complainant on the same day and no handing over/return memo in respect of the seal was prepared. Under the aforesaid circumstances, according to him, the manipulation of the case property cannot be ruled out. He submits that there are contradictions in the testimony of PW-1 and PW-3 regarding putting of barricades, regarding the time of their leaving the spot after completion of investigation, regarding the time when the PW-3 left the spot with rukka and came back after registration of FIR and as to the place of completion of paper work by the police officials. The aforesaid contradictions, according to him, create serious doubt about the prosecution story in the view of the fact that IO has failed to join any independent witness at the time of seizure of the case property and the entire seizure memo was State Vs. Rahul FIR No. 603/2016 PS Uttam Nagar ARUN Digitally signed by ARUN Judgment dated 30.07.2020 KUMAR KUMAR GARG Date: 2020.07.30 Page 5 of 10 GARG 18:16:51 +05'30' prepared by him in his handwriting from top to bottom in one go.
17. He further submits that even the excise staff was allegedly present on the spot, however, none of them has been joined as a witness by the IO. He submits that witnesses do not remember the DD entry allegedly made by them while leaving the police station for patrolling duty nor have they been able to produce the register wherein they were allegedly recording the registration numbers of the vehicles which were passing by at the place of checking by them. He submits that the register No.19 was not signed by PW-5 at the time of alleged taking out of the case property to Excise Control Laboratory and there is contradiction in the testimony of IO and PW-3 regarding the number of documents prepared by the IO.
18. All the aforesaid facts, according to him, cast serious doubts about the prosecution story of alleged recovery of illicit liquor by HC Jai Bhagwan from the possession of accused. Counsel for accused has thus prayed for acquittal of accused.
19. I have heard the submission made on behalf of the parties and have also carefully perused the material available on record.
20. So far as the contention of counsel for accused regarding non joining of independent witness by the IO being fatal to the prosecution case is concerned, in my considered opinion, the same by itself is not sufficient to throw away the entire case of the prosecution in view of the auhtoritative pronouncement of Hon'ble Supreme Court in Appabhai & Anr. v. State of Gujarat 1988 Supp. SCC 241. Non joining of State Vs. Rahul FIR No. 603/2016 PS Uttam Nagar ARUN Digitally signed by ARUN Judgment dated 30.07.2020 KUMAR KUMAR GARG Page 6 of 10 Date: 2020.07.30 GARG 18:17:02 +05'30' independent witnesses at the time of investigation, in my considered opinion, merely castes a duty upon the court to carefully scrutinize the testimony of police witnesses who had allegedly recovered the illicit liquor from the possession of accused.
21. Similarly, handing over of the seal by Ct. Kuldeep to HC Jai Bhagwan in the intervening night of 21.07.2016 and 22.07.2016 immediately after competition of investigation by itself is not sufficient to throw away the entire case of the prosecution in view of the authoritative pronouncement of Hon'ble High Court of Delhi in State Vs. Bashir Ahmad Poonu & Ors.217(2015) DLT233 wherein it was held that in the absence of any mandatory or even directory provision under the entire Cr.P.C. or Punjab Police Rules, requiring the seal to be handed over by the IO to the public witnesses after sealing of the case property, non- handing over seal by the IO after seizure to the public witness does not vitiate the entire proceedings.
22. Since the case property in the present case has allegedly been seized by the complainant HC Jai Bhagwan, while he was on patrolling duty with PW-4 Ct. Kuldeep, the testimonies of both the aforesaid witnesses are required to be carefully scrutinized by this court in the light of other material available on record, in view of the fact that HC Jai Bhagwan has failed to join any independent witness at the time of alleged seizure of illicit liquor.
23. It has been deposed by PW-1 HC Jai Bhagwan that on 21.07.2016, he alongwith Ct. Kuldeep was present at Uttam Nagar bus terminal for State Vs. Rahul FIR No. 603/2016 PS Uttam Nagar Judgment dated 30.07.2020 ARUN Digitally signed by ARUN KUMAR Page 7 of 10 KUMAR GARG Date: 2020.07.30 GARG 18:17:15 +05'30' vehicle checking duty and at about 07:10 pm, the accused came driving one Mahindar Champion 'from the side of Dwarka Mor and was going towards Tilak Nagar' and 'suddenly accelerated the car', whereafter he was stopped and vehicle was checked. He further deposed that upon checking of the vehicle, the same was found containing illicit liquor which was seized by him before getting the FIR registered through Ct. Kuldeep. Contrary to the testimony of PW-1, it was deposed by PW-4 that the vehicle was in fact going toward Dwarka Mor and was not coming from the side of Dwarka Mor. Moreover, contrary to the testimony of PW-1, he deposed that on seeing the police the driver started to turn car away.
24. Though, according to PW-1, he alongwith PW-4 was checking the vehicles after putting the barricades on the spot, but according to PW-4 they were checking the vehicle without putting any barricades. Though, according to PW-1, Ct. Kuldeep left the spot alongwith rukka at about 11:30 pm and came back to the spot alongwith FIR at 12:15am , whereafter, they finally left the spot at 12:20 am in night, however, according to PW-4, they had left the spot finally at about 08:30 pm.
25. The aforesaid contradictions in the testimony of PW-1 and PW-4, who are the only two witnesses of the alleged recovery of illicit liquor from the accused, reasonable doubts arise about the veracity of prosecution story regarding alleged recovery of illicit liquor from the possession of accused, more so, when the case property has allegedly been seized and sealed by the complainant himself before registration of the FIR and before the arrival of the IO.
ARUN Digitally signed by ARUN State Vs. Rahul KUMAR KUMAR GARG Date: 2020.07.30 FIR No. 603/2016 PS Uttam Nagar Judgment dated 30.07.2020 GARG 18:17:27 +05'30' Page 8 of 10
26. Though, according to PW-1, after arrival of the IO HC Naresh the seized case property alongwith accused was handed over by him to IO HC Naresh, however, as per the testimony of MHC(M) PS Uttam Nagar, case property was deposited in police station by HC Jai Bhagwan himself. It is significant to note that the case property has never been produced by the prosecution in the court and what was produced by the prosecution is an order of destruction of the case property, besides two bottles of liquor allegedly retained, out of the case property before destruction, which have been identified by PW-1 during his evidence and were endorsed as Ex. P-1. A bare perusal of the testimony of PW-1 shows that two bottles which were produced by MHC(M) Uttam Nagar for identification by PW-1 on 30.07.2018, were bearing the seal of JB, whereas, as per the store room register Ex.PW-6/A, the two bottles which were retained at the time of destruction of the case property in the police station were sealed with the seal of RKS.
27. All the aforesaid facts cumulatively, in my considered opinion, caste reasonable doubts about the veracity of the story sought to be propounded by the prosecution regarding alleged recovery of illicit liquor by PW-1 from the possession of accused on 21.07.2016.
28. It is settled legal position that burden of proof in a criminal case is always upon the prosecution and unlike civil cases, in a criminal case, prosecution is required to prove its case against the accused beyond reasonable doubts. It is the prosecution who is required to travel the entire distance from 'may have' to 'must have' before the accused is asked to put in his defence and the benefit of reasonable doubt must go State Vs. Rahul FIR No. 603/2016 PS Uttam Nagar ARUN Digitally signed by ARUN Judgment dated 30.07.2020 KUMAR KUMAR GARG Date:
Page 9 of 10 GARG 2020.07.30
18:17:38 +05'30'
to the accused.
29. As has already been observed hereinabove, in the case in hand, the accused has been able to raise reasonable doubts as to the veracity of the case sought to be propounded by the prosecution on the basis of material available on record, benefit of which must go to the accused.
30. Accused is accordingly acquitted of the charges U/s 33/38 of Delhi Excise Act, 2009.
31. Accused has already furnished personal bond and surety bond in sum of Rs.10,000/- each in terms of Section 437-A Cr.P.C on 17.01.2020. The same have already been accepted and shall remain in force for a period of six months from today.
32. Ordered Accordingly.
th Pronounced on this 30 day of July, 2020 through VC.
ARUN Digitally signed
by ARUN
This order consists of 10 digitally signed pages. KUMAR KUMAR GARG
Date:
GARG 2020.07.30
18:17:52 +05'30'
(ARUN KUMAR GARG)
Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi State Vs. Rahul FIR No. 603/2016 PS Uttam Nagar Judgment dated 30.07.2020 Page 10 of 10