Delhi District Court
Cr. Case No. 5509/2018 State vs . Naveen Dabas Page 1 Of 13 on 23 December, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 5509/2018
Unique Case ID No. -: DLSW020238182018
FIR No. -: 236/2016
Police Station -: BHD Nagar
Section(s) -: 33/58D Delhi Excise
Act
In the matter of -
STATE
VS.
1) NAVEEN DABAS
S/o Sh. Bhagwan,
R/o H. no. 210,
Village Madanpur Dabas Rani Khera,
New Delhi.
2) RAM MAHER,
S/o Raj Kumar,
R/o VPO Kishranti
PS Sampla, Distt. Rohtak, Haryana
3) HAWA SINGH
S/o Sh. Jage Ram,
R/o Village Atyal, PS Sampla,
Distt. Rohtak, Haryana.
.... Accused
1. Name of Complainant : Ct. Jitender
1) Naveen Dabas
2. Name of Accused : 2) Ram Maher
3) Hawa Singh
Offence complained of or
3. : 33/58D Delhi Excise Act
proved
4. Plea of Accused : Not guilty
Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 1 of 13
Date of commission of
5. : 17.08.2016
offence
6. Date of Filing of case : 05.06.2018
7. Date of Reserving Order : 20.12.2022
8. Date of Pronouncement : 23.12.2022
9. Final Order : Acquitted
Argued by -: Ld. Substitute APP for the State.
Ld. counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX -
1. Accused persons are facing trial for the offence punishable under Section 33 Delhi Excise Act, 2009 (hereinafter, "Excise Act").
2. Pithily, it is the case of the prosecution that on 17.08.2016, at about 11 PM, near Surakh Pur Village Picket, Najafgarh, Delhi , within the jurisdiction of PS BHD Nagar accused Hawa Singh was found driving a Maruti Zen Car bearing registration no. DL 9CE 2152, containing 19 cartons (petis) , out of which 17 cartons had 48 quarter bottles of illicit liquor with the label "Impact Grain Whiskey, 180 ml each, for sale in Haryana Only", and 2 cartons had 48 quarter bottles each of illicit liquor with the label of "Episode Classic Whiskey for sale in Haryana Only, 180 ml each", without any permit or license for the same. It is further the case of prosecution, that accused Ram Mehar was also in the vehicle at the time the same was found in possession of the liquor, and the registered owner of the same was found to be accused Naveen Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 2 of 13 Dabas, who knew that the vehicle was being used for transportation of illicit liquor .
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of subject FIR, the investigating officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against accused persons was filed. After taking cognizance of the offence, they were summoned to face trial for the above-said offence.
3. On his appearance, a copy of charge-sheet was supplied to her in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter,"CrPC"). On finding a prima facie case against the accused, charge under Section 33 Delhi Excise Act was framed against He pleaded not guilty to the charge and claimed trial.
PROSECUTION EVIDENCE -
4. The matter was then fixed for recording of PE. In support of its version, prosecution has examined a total of three witnesses-
Witness Name Nature of testimony
PW-1 HC Jitender He deposed that on 17.09.2016, he was on
Singh/ picket duty with HC Pradeep, when the
Complainant vehicle bearing registration no. DL 9CE
2152 was found to be in possession of
accused Hawa Singh and Ram Mehar, and
containing cartons of illicit liquor. He testified that investigation was taken over by SI Jagmohan, who seized the case property vide seizure memo Ex PW1/C. In his testimony, he relied upon his statement Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 3 of 13 recorded by the IO Ex PW1/A, site plan Ex PW1/B, seizure memo of the car Ex PW1/D, arrest memo of accused persons Ex PW1/F and Ex PW1/G, their personal search memos Ex PW1/H and Ex PW1/I, and disclosure statements of accused Ex PW1/J and Ex PW1/K. . He identified the case property Ex P3, and relied upon destruction order dated 13.02.2019. He also identified the remaining case property from the photograph Ex P2(colly). He was cross examined at length before being discharged as a witness.
He deposed that he was on picket duty with Ct Jitender on the day of incident, and deposed on similar lines as PW1 regarding the apprehension of the vehicle being driven by accused persons, with illicit liquor. PW-2 ASI Wazir However, he could not identify accused persons, until he was asked leading questions by Ld APP for the State in terms of Section 154 Indian Evidence Act, 1872. He was duly cross-examined and discharged.
He deposed that he received the sample case property on 26.10.2016, and he deposited the same in Excise Laboratory for PW3 Ct J.R Meena testing on the same day, against acknowledgment. He was also duly cross examined before being discharged as a witness.
PW4 HC Ct Neeraj/ He also supported the case of prosecution.
Recovery He deposed that he was on emergency witness duty on 17.08.2016, ,with SI Jagmohan, when the accused were apprehended in possession of illicit liquor. He deposed that upon this, IO SI Jagmohan apprehended the accused and seized the case property, as well as the vehicle being used for transportation of the same. He identified the case property as well as accused persons, and deposed about the codal formalities discharged by the IO. He relied upon the order of destruction of case property Ex P1 in his testimony, and photo of the car as well as sample bottles, Ex P2 and Ex P3. He was also duly cross Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 4 of 13 examined and discharged.
He deposed that he was posted as MHC (M) on 18.08.2016, when he was handed over the case property as well as the samples, both sealed with the seal of "JMS", and the custody of the car bearing registration no.
ASI Raj PW 5 DL9CE2152. He deposed that the relevant Kumar/MHCM entry made by him in the register regarding the seizure is Ex PW5/A, and Ex PW5/B is the road certificate vide which the samples were handed over to PW3 for testing. He was duly cross examined and discharged.
He deposed that accused Naveen Dabas was arrested by the IO in his presence on ASI Balwan 07.02.2012, vide arrest memo Ex PW6/A. PW 6 Singh He was duly cross examined by accused persons, before being discharged as a witness.
He supported the case of prosecution. He deposed that he was marked the investigation vide DD no. 35A, Ex PW7/A. He deposed about the arrest of accused SI Jagmohan/ IO persons, seizure of case property as well as PW 7 of the case the vehicle in possession of accused persons, and the other codal formalities discharged by him. He identified the case property from the photographs, as also the car of accused persons.
5. The remaining documents i.e. FIR no. 236/2016 PS BHD Nagar Ex. A1, certificate under Section 65B of Indian Evidence Act Ex. A2, and Excise result dated 21.11.2016 Ex. A3 were put to accused persons, and were admitted by them under Section 294 CrPC. Accordingly, the corresponding witnesses were dropped from the list of prosecution witnesses. PE was closed thereafter.
6. Thereafter, in order to accord an opportunity to accused persons to personally explain the incriminating circumstances Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 5 of 13 appearing in evidence against them, their statement was recorded without oath under Section 313/281 CrPC. They submitted that they are innocent and have been falsely implicated in the present case. They stated that the recovery was planted on them. To a specific query, they stated that they do not wish to lead defence evidence in the affirmative.
7. The matter was then fixed for final arguments. Final arguments heard. Record perused. Considered.
8. In order to establish the offence under Section 33 of the Excise Act, the prosecution must fulfill all the essential ingredients of the offence. Section 33 of the Excise Act is reproduced for ready reference-
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) 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 works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale; (d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari; (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 Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 6 of 13 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 lath rupees"
It has to be proved-
(i) accused was found in possession of case property.
(ii) The case property is illicit liquor of a description, the possession of which without any permit or license contravened the provision of law.
9. It is the story of prosecution that car found in joint possession of accused Ram Mehar and Hawa Singh was having illicit liquor, and accused Naveen Dabas had complicity in the offence alleged, being the owner of the vehicle.
10. However, the apprehension of accused persons with the case property itself was not proved by the prosecution beyond reasonable doubt. It is the case of the prosecution that the alleged recovery of the case property was made from accused persons on a crowded road, at 11PM. The area of the alleged recovery, therefore, was presumably crowded. Despite this, no public witnesses were joined in the prosecution. The witnesses of the prosecution, PW1 and PW4 deposed on oath that despite availability of independent Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 7 of 13 public witnesses, no such witnesses were joined in the investigation, whereas PW7/IO deposed that there were no public witnesses on the spot. No reconciliation has been offered on record by the prosecution to explain this discrepancy.
11. Further, the present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused persons near a picket. However, no photographs of accused persons along with the illicit liquor have been produced on record to show the alleged recovery, although PW2 admitted that the IO HC Jitender was using a camera-enabled phone at the time of alleged recovery from accused persons. Non production of evidence which was easily available to prosecution makes it case suspect.
12. What further renders the case of prosecution in dubiety is the fact that IO admitted that after sealing the case property, he never handed over the seal thereof to any independent person. The seal , thus, remained with the IO. This fact has to be construed in conjunction with the fact that PW5 deposed that case property was handed over to him on 18.08.2016. It cannot be ruled out with certainty that case property was tampered with, during the time it reminded in possession of the IO, who also did not hand over his seal to any independent person.
13. It is also evident from the record that prosecution has made no efforts whatsoever to dig out the source from which the Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 8 of 13 illicit liquor was procured by the accused. Lack of any efforts on part of the police to interrogate the accused on these lines is also reflective of a shoddy investigation, benefit of which, must accrue to the accused.
14. These facts show that the prosecution could not prove the alleged recovery of illicit liquor from the accused. Thus, the foundational fact on which the presumption under Section 52 of the Excise Act could be raised was itself not proved by the prosecution. Besides, even the fact that the case property comprised of illicit liquor was not proved by the prosecution beyond reasonable doubt.
16. The samples brought to the court were admittedly unsealed, as is revealed from the testimony of PW1, in his examination in chief. This fact not only casts the case of the prosecution in dubiety for the reason that the connection between the recovery and unsealed samples is impossible to establish, but also for the reason that as per testimonies of PW5 and PW7, samples were sealed with the seal of "JMS". As such, it stands proved that the unsealed bottles were not the samples allegedly recovered from the accused.
17. Even if the fact that case property was brought to the court in unsealed condition is disregarded, the same can not be considered a representative sample of the entire case property. The IO has not stated that the liquid from all the bottles was mixed, before drawing a sample therefrom. Thus, at best, the prosecution Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 9 of 13 can be said to have proved that the sample bottles were containing illicit liquor, but not that the entire case property comprised of the same.
18. Ex P1 (colly) is the order of the Assistant Commissioner (Excise) dated 13.02.2019, whereby the case property of the present case at entry no. 08, has been ordered to be destroyed. In Manjit Singh vs. State (2014) 214 DLT 646, the Hon'ble High Court of Delhi had observed that detailed panchnama containing the inventory should be prepared and photographs of the entire lot should be taken. It was further observed in Para No. 75 that the sample alongwith photographs and panchnama would be sufficient evidence during trial. In the present case, no panchnama was produced. Photographs of the entire lot of the case property were not produced, however, as is revealed by perusal of the document Ex P2. Even with respect to the photograph admitted that the contents of the gunny bag are not visible in the photograph. The same only shows a bag, with no seal visible. In this regard, even though Section 60 of the Excise Act provides that non production of case property does not affect the conviction, however, at the same time, the provision also lays down that samples and photographs of the confiscated property are to be preserved to meet evidentiary requirements. Without any proper photographs and an unexplained unsealed bottle Ex. P3 the standard cannot be said to be met beyond reasonable doubt.
Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 10 of 1319. Further, the samples were sent for testing on 26.10.2016, despite the fact that the alleged recovery was made on 17.08.2016. The fact that the prosecution has failed to explain where the property was present during the intervening period of around nine days also casts a shadow of doubt on the case of the prosecution. None of the witnesses examined by the prosecution have stated that the samples of illicit liquor taken for examination from the time they were taken and till the time the said samples were handed over to the Public Analyst, the samples were not tampered with. In this regard, Hon'ble Delhi High Court has held inDatu Ram v. State (Delhi) :1996(1) Crimes 604 : 1996(36) DRJ 527 : 1997(1) CCR 18as follows :
"In the State of Rajasthan v. Daulat Ram, 1980, C.C. Cases 83 (S.C), the Supreme Court observed that the prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the court could conclude that the seals remained intact throughout. Unfortunately, thiswarning seems to have fallen on deaf ears at least as far as this case is concerned.
3.Does the evidence as noticed above satisfy the requirement highlighted by the Supreme Court in Daulat Ram's case? The answer, to my mind, has necessarily to be in the negative.
4.The parcels were allegedly sealed at the spot by the Investigating Officer and if the Moharer Malkhana is to be believed the same were deposited with him by the said officer. However, the Investigating Officer no where says so. In any case, even if it be taken that the parcels were actually deposited by him, was it not for Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 11 of 13 him to assure the Court that so long as they had remained in his possession they had not been tampered with? This, however, is not the end of the matter. The Investigating Officer nowhere says that he had filled the C.F.S.L. form nor is there anything, either in his statement or in the statement of the Moharer Malkhana or even in the entry made in the Register, that any such form was ever deposited. The Constable who took the sample parcel also no where speaks of his having deposited any such form with the C.F.S.L. There are judgments of this court in which it has been held that absence of such evidence would be fatal to the prosecution. Reference, in this connection may be made to Chameli Devi v. State, 1993 JCC 293, Mool Chand v. State, 1993 (2) Delhi Lawyer 14, Anoop Joshi v. State, 1992 (2) CC Cases 314, Jagdish Prasad v. State, 55(1994) DLT 315 and Munni Lal v. The State, 1994 IV AD (Delhi) 1099.
5.Last, but not the least, the report of the C.F.S.L. itself, the relevant portion of which has already been reproduced above, cannot be considered to be such as to inspire the confidence of the Court with regard to the seals on the sample parcel. As would be apparent though it does show that the parcel received was having "
the seal impression as per specimen enclosed intact" we are not told as to what was the "specimen enclosed". This further takes away the sting from the prosecution version".
20. Similarly, in Chandra Wati v. State (Delhi) : 1991(44) DLT 31 : 1991 JCC 508 it was also held by Hon'ble Delhi High Court that the prosecution has to bring on record the link evidence to Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 12 of 13 show that the sample of the recovery alleged to have been made by the police witness from the accused was analysed in the CFSL without it being tampered with by any one, failure of which is a ground in favour of the accused.
21. When considered cumulatively, these factors show that a lot of gaps and crevices exist in its version, and prosecution could not prove the recovery of any illicit liquor from possession of accused Ram Mehar or Hawa Singh, or from the vehicle belonging to accused Naveen Dabas. Accordingly, accused Naveen Dabas s/o Shri Bhagwan, Ram Mehar s/o Raj Kumar and Hawa Singh s/o Jage Ram stand acquitted of the offence punishable under section 33 Delhi ExciseAct, 2009.
Pronounced in open court on 23.12.2022 in presence of accused person.
This judgment contains 13 pages and each page has been signed by the undersigned. Digitally signed MEDHA by MEDHA ARYA ARYA Date: 2022.12.24 15:35:48 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 23.12.2022 Cr. Case No. 5509/2018 State vs. Naveen Dabas Page 13 of 13