Delhi District Court
State vs Inder Kumar on 28 November, 2024
IN THE COURT OF SH. HIMANSHU RAMAN SINGH,
CHIEF JUDICIAL MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No. DLST02-009946-2022
IN THE MATTER OF:
STATE Vs. INDER KUMAR
FIR no. 158/2022
PS Ambedkar Nagar
U/s 33 of the Delhi Excise Act, 2009
JUDGMENT
A) Sl. No. of the case : CR Cases 2921/2022
B) The date of commission of : 21.02.2022
offence
C) The name of the complainant : Ct. Deepram, No. 976/SD, PIS no.
28100994, PS Ambedkar Nagar
D) The name and address of : Inder Kumar S/o Damodar, R/o
accused House No. H-1st, 147, Madangir,
New Delhi.
E) Offence complained of : 33 of the Delhi Excise Act, 2009
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 28.11.2024
DATE OF INSTITUTION : 22.04.2022
DATE OF FINAL ARGUMENTS : 28.11.2024
DATE OF JUDGMENT : 28.11.2024
FIR No. 158/2022 State Vs Inder Kumar Page No.1 of 16
PS Ambedkar Nagar
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The accused Inder Kumar S/o Sh. Damodar has been sent to face trial for the offences under Section 33 Delhi Excise Act, 2009 upon the allegations that on 21.02.2022 at about 09:40 PM at , House No. H-1st, 147, Madangir, New Delhi, New Delhi within the jurisdiction of PS Ambedkar Nagar, accused was found in possession of 24 quarter bottles of illicit liquor make "ADS Fresh Mota Orange Masaledar Desi Sharab", for sale in Haryana only measuring 375 ML each without having any license or permit to possess the same and in contravention of Delhi Excise Act, 2009.
2. After investigation, charge-sheet was filed in the Court, cognizance of the offences was taken vide and the accused was summoned by the Ld. Predecessor. After the accused entered appearance, copy of the charge-sheet along with the documents were supplied in compliance of the provisions of Section 207 of the Code of Criminal Procedure. Vide a separate order, charge was framed against the accused for commission of offences under Section 33 Delhi Excise Act, 2009 by the Ld. Predecessor to which he pleaded not guilty and claimed trial.
3. During trial, accused admitted under Section 294 Cr.P.C. the endorsement by the DO, Ex.A-1, Copy of FIR Ex.A-2, certificate under Section 65B of Indian Evidence Act, Ex.A-3, GD no. 115A dated 21.02.2022 Ex.A-4 and chemical examiner report which are Ex.A5. Also, the State examined three witnesses viz. PW-1 HC Deepram, PW-2 Ct. Kana Ram and PW-3 SI Jagmohan.
FIR No. 158/2022 State Vs Inder Kumar Page No.2 of 16 PS Ambedkar Nagar
4. To prove its case, the prosecution examined the following witnesses:
4.1 During examination in chief, PW-1 HC Deepram, on 21.02.2022, he was posted as Ct. at PS Ambedkar Nagar. On that day he was on patrolling duty in beat no.1. While patrolling at about 9:40 PM, he reached at H-1st, Block, Gali no.19, near Khatta, Madangir where he had seen that one person was carrying a white plastic katta started going swiftly in the street after seeing me in police uniform. Thereafter, he had stopped that persons and apprehended the accused and asked about the material in the katta, accused did not give any satisfactory answer, it created suspicion in my mind, then he checked the katta and found illicit liquor in it. The alleged person disclosed his name as Inder Kumar. he had given the information with regard to the recovery of illicit liquor to DO in PS. Thereafter, SI Jagmohan along Ct. Kahna Ram had come at the spot. heI had handed over illicit liquor and the custody of the accused to the IO. Thereafter, IO had asked 3-4 public persons to join the investigation of the present case but nobody joined the same and left the spot by giving some valid reason. No notice was served to anyone due to lack of time. Thereafter, IO had recorded my statement which is Ex. PW1/1 bearing his signature at point A. Thereafter, IO had checked the katta and counted the half bottles of illicit liquor and found 24 bottles of make ADS Fresh Motta Masaledar Desi Sharab for sale in Haryana only measuring 375 ML each. Thereafter, IO had taken out one bottle as sample and kept the remaining bottles in the same katta. Thereafter, IO had sealed the sample as well as katta with the seal of FIR No. 158/2022 State Vs Inder Kumar Page No.3 of 16 PS Ambedkar Nagar 'JM'. Thereafter, IO had filled the form M-29. After the use of seal it was handed over to Ct Deepram vide sealing handing over memo Ex.PW-1/2 bearing his signatures at point A. Thereafter, IO had seized the illicit liquor vide memo Ex. PW1/3 bearing his signature at point A. Thereafter, IO had prepared the rukka and got the FIR registered through the Ct. Deepram. He went to the PS, got the FIR registered and came back on the spot along with original tehrir and copy of FIR. During investigation IO had prepared the site plan at the instance of Ct. Deepram. Thereafter, IO had interrogated the accused and recorded the disclosure statement of the accused which is Ex.PW1/4. IO had arrested the accused person after conducting his personal search. Thereafter, they came back to the PS and deposited the case property in the malkhana.. IO had recorded my statement. Case property was destroyed vide order Ex.P1. The photograph having image of case property was produced which was correctly identified by witness which was Ex. P1 and the sample 375 ml bottle and the same is shown to the witness and witness has correctly identified the same which is Ex.P3. Witness correctly identified the accused before the Court. PW-1 was duly cross-examined by Ld. Counsel for the Defence. In his cross-examination, he denied to all the suggestions put to him by Ld. Defence Counsel.
4.2. During examination in chief, PW-2 Ct. Kana Ram deposed that On 21.02.2022, he was posted as Ct. at PS Ambedkar Nagar. On that day he was present in the PS. He had gone to the spot along with IO where they met Ct. Deep Ram who had handed over the case property and the custody of accused to the IO. Thereafter, IO had asked 3-4 public persons to join the FIR No. 158/2022 State Vs Inder Kumar Page No.4 of 16 PS Ambedkar Nagar investigation of the present case but nobody joined the same and left the spot by giving some valid reason. No notice was served to anyone due to lack of time. Thereafter, IO had recorded the statement of Ct. Deep Ram which is already Ex. PW1/1. Thereafter, IO had checked the katta and counted the half bottles of illicit liquor and found 24 bottles of make ADS Fresh Motta Masaledar Desi Sharab for sale in Haryana only measuring 375 ML each.
Thereafter, IO had taken out one bottle as sample and kept the remaining bottles in the same katta. Thereafter, IO had sealed the sample as well as katta with the seal of 'JM'. Thereafter, IO had filled the form M-29. After the use of seal it was handed over to Ct. Deep Ram vide sealing handing over memo already Ex.PW-1/2. Thereafter, IO had seized the illicit liquor vide memo Ex. PW1/3 bearing his signature at point B. Thereafter, IO had prepared the rukka and got the FIR registered through Ct. Deep Ram. He went to the PS, got the FIR registered and came back on the spot along with original tehrir and copy of FIR. During investigation IO had prepared the site plan at the instance of Ct. Deep Ram which is now Ex. PW-2/A bearing his signature at point A. Thereafter, IO had interrogated the accused and recorded the disclosure statement of the accused which is Ex.PW1/4 bearing his signature at point A. IO had arrested the accused person after conducting his personal search vide arrest memo and personal search memo Ex.PW-2/C and Ex. PW-2D respectively both bearing his signature at point A. Thereafter, we came back to the PS and deposited the case property in the malkhana. The IO had recorded the statement of witnesses u/s 161 CrPC. He had also collected the excise result and he had filed the charge sheet along with FIR No. 158/2022 State Vs Inder Kumar Page No.5 of 16 PS Ambedkar Nagar relevant documents. Case property was destroyed vide order Ex.P1. The photograph having image of case property was produced which was correctly identified by witness which was Ex.P1 and the sample 375 ml bottle and the same is shown to the witness and witness has correctly identified the same which is Ex.P3. Witness correctly identified the accused before the Court. PW-2 was duly cross-examined by Ld. Counsel for the Defence. In his cross-examination, he denied to all the suggestions put to him by Ld. Defence Counsel.
4.3. During examination in chief, PW-3 SI Jagmohan deposed that On 21.02.2022, he was posted as SI at PS Ambedkar Nagar. On that day he was present in the PS. he was marked the DD Enty no. 115A. he had gone to the spot along with Ct Kanna Ram where they met Ct. Deep Ram who had handed over the case property and the custody of accused to him. Thereafter, he had asked 3-4 public persons to join the investigation of the present case but nobody joined the same and left the spot by giving some valid reason. No notice was served to anyone due to lack of time. Thereafter, he had recorded the statement of Ct. Deep Ram which is already Ex. PW1/1. Thereafter, he had checked the katta and counted the half bottles of illicit liquor and found 24 bottles of make ADS Fresh Motta Masaledar Desi Sharab for sale in Haryana only measuring 375 ML each. Thereafter, he had taken out one bottle as sample and kept the remaining bottles in the same katta. Thereafter, he had sealed the sample as well as katta with the seal of 'JM'. Thereafter, he had filled the form M-29. After the use of seal it was handed over to Ct. Deep Ram vide sealing handing over memo already FIR No. 158/2022 State Vs Inder Kumar Page No.6 of 16 PS Ambedkar Nagar Ex.PW-1/2 bearing his signature at point B. Thereafter, he had seized the illicit liquor vide memo Ex. PW1/3 bearing his signature at point C. Thereafter, he had prepared the rukka and got the FIR registered through Ct. Deep Ram. He went to the PS, got the FIR registered and came back on the spot along with original tehrir and copy of FIR. During investigation he had prepared the site plan at the instance of Ct. Deep Ram which is now Ex. PW-2/A bearing his signature at point B. Thereafter, he had interrogated the accused and recorded the disclosure statement of the accused which is Ex.PW1/4 bearing his signature at point B. he had arrested the accused person after conducting his personal search vide arrest memo and personal search memo Ex.PW-2/C and Ex. PW-2D respectively both bearing his signature at point B. Thereafter, they came back to the PS and deposited the case property in the malkhana. Accused was taken for medical examination and witness has correctly identified the accused present in the court today. The order vide which the case property has already destroyed and the said order is Ex. P1. The photograph of the case property, which is shown to the witness and witness has correctly identified the same which is Ex. P2.The identity of the case property is already established in the testimony of PW1. The same is already ExP3. PW-3 was duly cross-examined by Ld. Counsel for the Defence. In his cross-examination, he denied to all the suggestions put to him by Ld. Defence Counsel.
5. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him, to which he pleaded FIR No. 158/2022 State Vs Inder Kumar Page No.7 of 16 PS Ambedkar Nagar innocence and claimed to have been falsely implicated. Accused chose not to lead any defence evidence. Final arguments of both the parties were heard at length.
DECISION AND REASONING
6. At the outset, it is pertinent to note that Section 33 Delhi Excise Act read as:
"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 license, 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 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.
7. During the course of final arguments, it has been argued by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are complete and in view of FIR No. 158/2022 State Vs Inder Kumar Page No.8 of 16 PS Ambedkar Nagar the presumption under Section 52 of the Delhi Excise Act the accused be convicted. On the other hand, the Ld. Defence Counsel argued that he has been falsely implicated in the present case, that there is no public witness of the incident and prosecution miserably failed to prove its case against the accused beyond reasonable doubts.
8. I have heard and considered the arguments and submissions advanced by Ld. APP for the State and Ld. Counsel for the accused. I have perused the entire case record and appreciated the evidence adduced.
9. It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
10. The prosecution has relied heavily upon the presumption under Section 52 of the Delhi Excise Act, 2009 to contend that in the present case, the burden was upon the accused to prove that he had not committed the offence under Section 33 of the Act and since the accused had failed to discharge the onus cast upon him, the accused should be found guilty in the presence case. However, perusal of the Section 52 of the Delhi Excise Act FIR No. 158/2022 State Vs Inder Kumar Page No.9 of 16 PS Ambedkar Nagar reveals that the presumption under the Section 52 can be raised only after the prosecution has discharged its initial onus as to the accused having been found in possession of illicit liquor. For the sake of convenience, Section 52 of the Act is reproduced hereinunder:
"52. Presumption as to commission offence in certain cases:- 1) In prosecution under Section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.".
11. Hence, to avail the benefit of the presumption, it was still for the prosecution to prove that the illicit liquor was in fact recovered from the possession of the accused. However, from the evidence as led the prosecution has miserably failed to do so as discussed herein under.
11.1 Non-joining of any independent witness:
There were no independent witnesses to the recovery despite availability. Hence, the factum of availability of the independent witnesses at the place of incident at the time of recovery stands proved but no independent witness has been joined in the investigation of the present case. Though it is no doubt true that not in every case the testimony of police officials are to be looked upon with suspicion and treated as unworthy of reliance, but the failure of the investigating agency to join witnesses from the public especially when they are available or their presence can reasonably be secured with minimum efforts casts a doubt as to the authenticity of the FIR No. 158/2022 State Vs Inder Kumar Page No.10 of 16 PS Ambedkar Nagar version being put forth by the investigating agency. (Reference made to Nanak Chand v The State of Delhi, 1991 JCC 1 decided by Hon'ble Delhi High Court). A police officer investigating a crime is entitled to ask anybody to join the investigation and he is also fully empowered to initiate action against public persons refusing under the law. The failure on the part of the investigating officer to initiate such action against any public person is suggestive of the fact that the explanation for non-joining the witnesses from the public is merely after thought and is not worthy of credence. (Reference made to Roop Chand vs. State of Haryana, 1999 (1) C.L.R 69, decided by Hon'ble High Court of Punjab & Haryana).
In these circumstances, as despite the presence of public persons at/around the place of alleged recovery the investigating officer failed to join independent public persons as witness to the proceedings of the present matter, warrants an adverse inference to be drawn under Section 114 (g) of the Evidence Act that the evidence if produced would have been unfavorable to the case of the investigating agency/prosecution and thus, the prosecution has failed to prove the recovery from the accused beyond reasonable doubt. In order to prove the alleged offence, the prosecution is first and foremost required to prove the recovery of illicit liquor from the possession of accused. In order to prove the said recovery, it is a mandate to comply provision of section 100 (4) of the Cr.PC. Accused is residing in a residential colony but no public person has been examined. Under these circumstances, there is absolute non-compliance of Section 100 Cr.PC Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an FIR No. 158/2022 State Vs Inder Kumar Page No.11 of 16 PS Ambedkar Nagar investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub-Sec (4) of Sec 100 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness.
In this regard reliance is being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers 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".
Prosecution has failed to prove when a number of people from the public locality were available, why the testimony of said witnesses were not recorded. Prosecution has also failed to file any DD entry of the recovery witness regarding departure and arrival. Photographs and videography were not conducted. Seizure memo of recovered liquor was prepared prior to the FIR No. 158/2022 State Vs Inder Kumar Page No.12 of 16 PS Ambedkar Nagar registration of FIR, however, it contains the details of present FIR and no explanation has been furnished by the IO regarding the same.
11.2 No departure entries proved:
To prove its case, it was also imperative for the prosecution to prove the presence of the complainant/police official at the place of incident at the time of recovery. However, no Departure entry as regards patrolling duty of the said witnesses has been proved by the prosecution in contravention of the provisions of the Punjab Police Rules as per which an entry is required to be made as regards the hour of arrival and departure of police personnel on duty. Chapter 22 Rule 49 of Punjab Police Rules, 1934 provides as under:
''22.49 Matters to be entered in Register No. II. The following matters shall, amongst others, be entered: ...(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
FIR No. 158/2022 State Vs Inder Kumar Page No.13 of 16 PS Ambedkar Nagar In the absence of any DD entries having been proved by the prosecution vide which prosecution witness had left the Police Station, the factum of availability of the complainant and the witness to the recovery at the place of apprehension of the accused and that of the IO at the place of incident at the time alleged investigation comes under suspicion. Thus, the failure to bring the DD entries on record gives rise to a reasonable suspicion in respect of authenticity of the version being put forth by the prosecution as to the very presence of these witnesses at the place of incident at the time of incident and consequently as to the factum of the recovery of the case property from him.
11.3 Seal not handed over to any independent witness:
As per the testimony of prosecution witnesses, after the case property was sealed with the seal of JM, the same was handed over without any handing over documentation. There is no testimony to support that the same was handed over to any independent witness. It must have been handed over to the complainant or the witness to the recovery. No evidence has been led by the prosecution as to whether the seal after use was deposited in the Malkhana and if so, when and by whom which makes it highly probable that the entire proceedings were conducted at the police station, that the case property was planted one and that nothing was recovered from the accused at the spot.
FIR No. 158/2022 State Vs Inder Kumar Page No.14 of 16 PS Ambedkar Nagar 11.4 Perusal of the evidence on record also reveals that FIR number is being reflected on the seizure memo as also on the Form 29 despite it being the case of the prosecution in the testimony of prosecution witness that the FIR was registered subsequent to the case property being seized and as to the seizure memo as also Form 29 having been filled/prepared prior to the registration of the FIR. The reflection of the FIR Number on the document in the absence of any explanation as to the same also raises a doubt as to the manipulation and/or insertions in the documents prepared by the investigating agency during investigation and casts a shadow of doubt on the very factum of the recovery from the accused.
12. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt".
The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal)
662).
13. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused, the benefit of which accrues in her favour. Accused Inder Kumar S/o Sh. Damodar is accordingly acquitted for the offence under section 33 Delhi Excise Act. Her Bail Bond stands FIR No. 158/2022 State Vs Inder Kumar Page No.15 of 16 PS Ambedkar Nagar cancelled. Surety Bond stands discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on proper receipt and identification. Accused is directed to furnish necessary bail bonds under Section 437A CrPC.
14. Case property, if any, be confiscated to the State after the expiry of the period of the appeal.
15. File be consigned to Record Room, after due compliances.
Digitally signed HIMANSHU by HIMANSHU RAMAN SINGH RAMAN Date: SINGH 2024.11.28 15:30:41 +0530 (Himanshu Raman Singh) Chief Judicial Magistrate District South, Saket Courts Complex Announced in the open Court On 28th November, 2024 FIR No. 158/2022 State Vs Inder Kumar Page No.16 of 16 PS Ambedkar Nagar