Delhi District Court
State vs . : Savita on 20 December, 2022
IN THE COURT OF SHRI ROHIT GULIA, CMM (NORTH-WEST), ROHINI
DISTRICT COURTS, DELHI.
Case No. : 238/2018
FIR No. : 319/17
U/s. : 33/38 D. Ex. Act
P.S. : Ashok Vihar
State Vs. : Savita
JUDGMENT
1. Date of institution of the case : 15.01.2018
2. Date of the commission of the offence : 13.08.2017
3. Name of the accused : Savita W/o Veeru,
R/O N-125/189, Satsang
Colony, WPIA, Ashok
Vihar, Delhi.
4. Name of the complainant : HC Devender Kumar
No.1967/NW
5. Offence complained of : 33/38 D. Ex. Act
6. Plea of accused : Pleaded not guilty
7. Final order : Acquitted
8. Date of such order : 20.12.2022
BRIEF REASONS FOR DECISION :-
The story of the prosecution in brief is as under:-
1. The accused Savita W/o Sh. Veeru has been sent to face trial under Section 33/38 Delhi Excise Act and on the allegations that on 13.08.2017 at about 11:10am at Raja Park Corner, Near Satsang Colony, WPIA, Delhi, accused was found in possession of one plastic katta containing total 72 quarter bottles of illicit liquor labeled as Clubmalta Flavored without requisite permit and on the basis of the said allegations, the present FIR No.319/17 was registered at Police Station Ashok Vihar and the accused has been charged with the offences under Section 33/38 D. Ex. Act.
2. After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.).
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3. Subsequently, on 07.09.2018 after hearing Assistant Public Prosecutor (APP) and the accused, a formal charge was framed whereby the accused was charged with the commission of offence punishable under section 33/38 of Delhi Excise Act, 2009. The charge was read over and explained to the accused to which she did not plead guilty and claimed trial.
4. The prosecution was thereafter given opportunity to prove the accusation against the accused and examined only 3 witnesses, out of 7 witnesses as mentioned in the list of witnesses.
5. PW-1 is ASI Devender, No. 427/RD, PS Begum Pur, Delhi, who has deposed that on 13.08.2017, he was posted as Head Constable in the PS Ashok Vihar and on that day, he was on patrolling duty along with ASI Jeet Singh and W/Ct. Kshyma. He has deposed that while they were on patrolling duty, he received secret information that one lady is in the process of selling illicit liquor at the corner of Raja Park and if immediate raid is conducted she could be apprehended. He has deposed that thereafter, IO requested 4-5 public persons who were passing from the said road to join the investigation but none agreed and left without disclosing their names and addresses. He has further deposed that he constituted a raiding team and reached near Satsung Colony, Wazirpur Industrial Area, at the corner of Raja Park, Delhi and at about 11:00 AM, he saw that one lady was carrying one white colour plastic katta and after seeing them, she tried to slip away from there. He has deposed that upon getting suspicious, she was stopped and inquiries were made from her and upon checking the said plastic katta, it was found containing 72 quarter bottles of illicit liquor each having the label of Club Malta for Sale in Harayana Only, she revealed her name as Smt. Savita. He has further deposed that information regarding her apprehension alongwith liquor was conveyed by him to the duty officer at the PS. He has deposed that one quarter bottle was taken out as sample from the recovered liquor and the same were sealed with the seal of 'DKV' and it was given serial no. 1 and the remaining 71 quarter bottles were placed inside the said plastic katta, which was also sealed with the seal of 'DKV' by him and it was given serial no. 2. the recovered FIR No.319/17 P.S. Ashok Vihar State Vs. Savita Page No. 2 of 9 liquor was taken into police possession vide seizure memo which is Ex. PW1/A. He has deposed that he prepared the tehrir Ex. PW1/B and handed over the same to ASI Jeet Singh for the registration of FIR who got the present case registered at PS and returned back to the spot alongwith IO SI Kali Charan. He has deposed that he handed over the custody of accused and the recovered case property alongwith the documents prepared to the IO SI Kali Charan. He has further deposed that carbon copy of the form M-29 was filled by him and the same is Ex. PW1/C. This witness has correctly identified the case property as Ex. P1. This witness was cross examined by the Ld. counsel for the accused.
6. PW-2 is W/HC Kshyma, No. 342/SB, Special Branch, Delhi, who has deposed on the same lines as deposed by PW-1. She has further deposed that accused was arrested vide arrest memo Ex. PW2/A and her personal search was conducted by her vide memo Ex. PW2/B. She further deposed that disclosure statement made by the accused is Ex. PW2/C. She has deposed that accused was got medically examined by her and case property was got deposited in the malkhana by the IO. This witness has correctly identified the case property as Ex. P1. This witness was cross examined by the Ld. counsel for the accused.
7. PW-3 is ASI Jeet Singh, No. 2765/DAP, IIIrd Battalion, Delhi, who has deposed that on 13.08.2017, he was posted as ASI in PP Wazirpur Industrial Area, Delhi, PS Ashok Vihar and on that day, he was on patrolling duty alongwith W/Ct. Ksyma and HC Devender and while they were on patrolling duty HC Devender received secret information at Merry Maker Road, that one lady is about to sell illicit liquor at the corner of Raja Park, Wazirpur Industrial Area and if immediate raid is conducted she could be apprehended alongwith illicit liquor. He has deposed that thereafter, HC Devender requested 4-5 public persons who were passing from the said road to join the investigation but none agreed and left without disclosing their names and addresses. He has deposed that HC Devender constituted a raiding team and reached near Satsung Colony, Wazirpur Industrial Area, at the corner of Raja Park, Delhi, at about 11:00 AM, they saw that one lady was carrying one white colour FIR No.319/17 P.S. Ashok Vihar State Vs. Savita Page No. 3 of 9 plastic katta and after seeing them, she tried to slip away from there. He has deposed that upon getting suspicious, she was stopped by HC Devender and W/Ct. Kshyam and inquiries were made from her and upon checking the said plastic katta, it was found containing 72 quarter bottles of illicit liquor each having the label of Club Malta for Sale in Harayana Only. He has deposed that she revealed her name as Smt. Savita. He has deposed that information regarding her apprehension alongwith liquor was conveyed by HC Devender to the duty officer at the PS. He has further deposed that one quarter bottle was taken out as sample from the recovered liquor and the same were sealed with the seal of 'DKV' and it was given serial no. 1 and the remaining 71 quarter bottles were placed inside the said plastic katta, which was also sealed with the seal of 'DKV' by HC Devender and it was given serial no. 2. the recovered liquor was taken into police possession vide seizure memo Ex. PW1/A. He has deposed that HC Devender prepared the tehrir and handed over the same to him for the registration of FIR, he got the present case registered at PS and returned back to the spot alongwith IO SI Kali Charan. He has deposed that HC Devender handed over the custody of accused who was in custody of W/Ct. Kshyam and the recovered case property along with the documents prepared to the IO SI Kali Charan. He has deposed that accused was got medically examined by HC Devender through W/Ct. Kshyam and case property was got deposited in the malkhana by the IO. This witness has correctly identified the case property as Ex. P1. This witness was cross examined by the Ld. counsel for the accused.
Accused has admitted the FIR NO.319/17 as Ex.A-1 endorsement on the rukka by DO as Ex.A-2, DD No.12 PP dated 13.08.2017 as Ex.A3 and Excise report as Ex.A4 u/s 294 CrPC.
8. Subsequent to the recording of statement of PWs, PE was closed and statement of accused was recorded and all the incriminating evidence coming on record was put to the accused, in which she has submitted that she has been falsely FIR No.319/17 P.S. Ashok Vihar State Vs. Savita Page No. 4 of 9 implicated in the present case. She has further submitted that she does not want to lead evidence in her defence. Therefore, the matter was listed for Final Arguments.
9. I have comprehensively heard the arguments advanced by Ld. APP for the state, Ld. Counsel for accused as well as perused the entire record including the documents exhibited in evidence by the prosecution.
Analysis of the prosecution evidence and the relevant documents placed on record.
10. Ld. Counsel for the accused has argued that case of the prosecution rests entirely upon the testimony of police witnesses and there are no independent witnesses to corroborate their testimonies. It was also argued that the recovery of illicit liquor was planted upon the accused which is proved by the condition of the case property. Hence, it is prayed that the accused may be acquitted of the alleged offence.
11. On the contrary, It is submitted by the learned APP that from the material on record it has been proved that on 13.08.2017 the accused was found in possession of the illicit liquor without having any permit or licence and therefore, the accused be convicted and severely punished for having committed offence punishable under section 33 Delhi Excise Act.
12. I have given my thoughtful consideration to the submissions made on behalf of both the parties.
13. Perusal of the charge sheet shows that no efforts were made by any of the IO as to know the source from where accused was alleged to have received such a huge quantity of liquor. No investigation seems to have been made in this regard voluntarily.
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14. Apparently, no public person was joined during investigation. Although, there is no need to join public witness for investigation but in that scenario, the court has to take cautious approach to see that the case of the prosecution is otherwise authentic and credible. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Undoubtedly, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. In the case of "Pawan Kumar Vs Delhi Administration" 1989 Crl. LJ 127 Delhi, it has been held as under : -
"Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a FIR No.319/17 P.S. Ashok Vihar State Vs. Savita Page No. 6 of 9 circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
15. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law.
16. It is not that invariably the testimony of police witnesses should be discarded when it is not corroborated from an independent source. What is called for is that at least, sincere efforts should have been made by the police officials to join public witnesses. Record must demonstrate that genuine efforts were made to join public witnesses at the time of recovery otherwise the provision of Section 100(4) Cr.P.C would be redundant. In the present case, record does not suggest that any effort was made by the police officials to join any public persons. It appears that the witnesses have suggested that public persons were requested to join investigation but they did not agree. The stereo-type explanation given by the police official for not joining independent witness does not inspire confidence. In order to lend credence to their averment that sincere efforts were made to join public persons, the police officials could have issued notice to those public persons who were requested to join investigation. Their said failure raises doubts over the purported efforts made by them to join public persons. Reliance in this regard can be placed upon the recent decision in "Masoom & Ors. (Mohd.) Vs State of NCT of Delhi"2015 (IV) AD Delhi 395.
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17. The another material thing, which is required to discuss about the case of the prosecution is that PW-1 ASI Devender, PW-2 W/HC Kshyma and PW-3 ASI Jeet Singh deposed that they were on patrolling duty at the time of apprehension of the accused meaning thereby that at the relevant time, they were not in the PS and was outside the PS, then as per Punjab Rules, they being on duty were required to enter departure & arrival to & from the PS Ashok Vihar in the DD Register of the said PS.
1. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-\ "22.49 Matters to be entered in Register No. II-The following matters shall, amongst others, be entered.:-
(c) The hour of arrival and the departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note:- The term Police Station will include all places such as Police Lines & Police Posts, where Register No. II is maintained.
18. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW-1, PW-2 and PW-3.
19. Record further shows that seal, after use, was not handed over to an independent person. Admittedly, neither handing over nor return memo of the seal was prepared. No efforts were made to hand over the seal after use to independent public person and in such cases, in view of "Saifulla Vs. State", 1998 (1) CCC 497 (Delhi) and "Abdul Gaffar Vs. State" 1996 JCC 497 (Delhi), benefit of doubt has to be given to the accused.
20. In view of the above, the prosecution has failed to prove its case beyond all reasonable doubts against the accused and the benefit of the same goes in favour the accused. Accordingly, accused Savita is acquitted of the charges for the offence u/s FIR No.319/17 P.S. Ashok Vihar State Vs. Savita Page No. 8 of 9 33/38 Delhi Excise Act.
At this stage, fresh bail/surety bonds furnished and accepted in compliance of Section 437-A Cr.P.C. alongwith latest passport size photographs and residential proofs. File be sent to records.
Announced in the open court (ROHIT GULIA)
on 20.12.2022 CMM: North West
Rohini: Delhi/20.12.2022
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