Delhi District Court
State vs . Suraj on 27 January, 2020
CNR No. DL CT020129012019
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DL CT0201290119
CIS No. 6671/19
State Vs. Suraj
FIR No. 359/18
PS. Nabi Karim
U/s. 33 Delhi Excise Act
JUDGMENT
1) The date of commission of offence : 24.10.2018
2) The name of the complainant : ASI Beant Kumar
3) The name & parentage of accused : Suraj S/o. Shri Raghu Lal, R/o. House No. 9370, Multani Dhanda, Paharganj, Nabi Karim, Delhi.
4) Offence complained of : U/s. 33 Delhi Excise Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 27.01.2020 Date of Institution : 06.05.2019 Judgment reserved on : 23.12.2019 Judgment announced on : 27.01.2020 BRIEF REASONS FOR THE JUDGMENT:
CIS No. 6671/19, State Vs. Suraj, FIR No. 359/18, PS. Nabi Karim, U/s. 33 Delhi Excise Act 1 / 10 CNR No. DL CT020129012019
1. The case of the prosecution against the accused is that on 24.10.18, at about 11.00 PM, at the corner of Gali No. 11, Multani Dhanda, Paharganj, Delhi, within the jurisdiction of PS Nabi Karim, he was found in possession of 2 boxes containing illicit liquor, the first box was containing 23 quarter bottles of Officers Choice Green Whiskey and the second box was found containing 33 quarter bottles of Royal Stag Reserve Whisky, without having any permit or license and in contravention of provision of Delhi Excise Act.
2. After investigation, chargesheet was filed against the accused. The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr. P.C. Thereafter, charge was framed against the accused under Section 33 of Delhi Excise Act to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined five witnesses. After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
4. I have heard Ld. APP for State and Ld. Counsel for accused and perused the record.
5. The testimonies of prosecution witnesses are being touched upon, in brief, as follows: 5.1) PW1 ASI Arvind Kumar proved the endorsement on rukka as Ex. PW1/A, copy of the present FIR as Ex. PW1/B and the certificate U/s 65 B Indian Evidence Act as Ex. PW1/C. CIS No. 6671/19, State Vs. Suraj, FIR No. 359/18, PS. Nabi Karim, U/s. 33 Delhi Excise Act 2 / 10 CNR No. DL CT020129012019 5.2) PW2 Ct. Manoj Kuamr and PW3 ASI Beant Kumar deposed on the same lines that on 24.10.18, they were on emergency duty and at about 11.00 PM, when they were coming from the hospital vide DD No. 65A and reached at Multani Dhanda, Gali no. 11, they saw one TSR was parked at the corner of gali no. 11, Multani Dhanda. One person was sitting in the said TSR and on seeing them that person was ran away from the spot. On checking the said TSR, two carton boxes of liquor were found in the back seat of the TSR. One carton box was found containing 23 quarter bottles of liquor of Officers Choice Grain Whiskey and other carton box was found containing 33 quarter bottles of Royal Stag Reserve Whiskey, 180 ml. Ownership of said TSR was verified and the same was found in the name of one Suraj. One quarter bottle was taken as sample from the both cartons and sealed with the seal of BK. Form M29 Ex. PW3/A was prepared. Samples were given serial no. M1 and M2. Remaining quarter bottles were kept in the respective carton boxes and seized vide memo Ex. PW2/A. Thereafter, tehrir Ex. PW3/B was prepared. After registration of the FIR, further investigation was handed over to HC Sarjeet. HC Sarjeet prepared the site plan. They correctly identified accused and the case property in the court.
5.3) PW4 HC Sarjeet Kumar deposed that on 26.10.18, further investigation of this case was marked to him. He deposed that he formally arrested the accused vide memo Ex. PW4/A and recorded his disclosure statement Ex. PW4/B. Sample bottles were deposited in CIS No. 6671/19, State Vs. Suraj, FIR No. 359/18, PS. Nabi Karim, U/s. 33 Delhi Excise Act 3 / 10 CNR No. DL CT020129012019 Excise Department and result of Excise Department Ex. PW4/C was obtained. He correctly identified the accused. 5.4) PW5 Ct. Suresh deposed that on 03.01.19 he received one sealed pullanda of sample sealed with the seal of BK from MHC(M) vide RC no. 133/21/19 and deposited the same in Excise Department, Vikas Bhawan. He deposed that case property remained intact during his custody.
6. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
7. The manner in which the seizure and search was stated to be conducted on the spot at the time of alleged recovery of liquor makes the prosecution version highly doubtful. It is evident from the testimony of PW2 and PW3 that the alleged illicit liquor was recovered from a place where there was availability of public witnesses. PW2 and PW3 admitted that public persons were available at the spot and they were requested to join the proceedings but none agreed. During cross examination PW2 admitted that some public persons pushed the TSR when the TSR being brought to the PS. However, no efforts were made by the IO to make the said public persons witness in the present case.
CIS No. 6671/19, State Vs. Suraj, FIR No. 359/18, PS. Nabi Karim, U/s. 33 Delhi Excise Act 4 / 10 CNR No. DL CT020129012019
8. 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:
"18. 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 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".
In judgment titled as Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under: CIS No. 6671/19, State Vs. Suraj, FIR No. 359/18, PS. Nabi Karim, U/s. 33 Delhi Excise Act 5 / 10 CNR No. DL CT020129012019 "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".
9) Considering the aforesaid observations made by the Higher Courts, the omissions/failure on the part of investigating agency to join independent public witnesses create 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. Merely mentioning that the public persons were asked to join the proceedings is not believable. The IO could have mentioned the names of those persons who were asked to join the proceedings. Nothing in this regard was deposed by any of the witness and this creates a gaping hole CIS No. 6671/19, State Vs. Suraj, FIR No. 359/18, PS. Nabi Karim, U/s. 33 Delhi Excise Act 6 / 10 CNR No. DL CT020129012019 in the case of the prosecution.
10) PW3 ASI Beant Kumar deposed that seal after use was handed over to PW2 Ct. Manoj. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh vs. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
No seal handing over memo is on record. The case property is lying in the same police station where the police official having the possession of seal was posted. There was ample opportunity for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
CIS No. 6671/19, State Vs. Suraj, FIR No. 359/18, PS. Nabi Karim, U/s. 33 Delhi Excise Act 7 / 10 CNR No. DL CT020129012019
11) Furthermore, the testimony of PW2 and PW3 reveals that the FSL form and seizure memo Ex. PW2/A were prepared prior to the dispatch of the rukka and registration of the FIR. 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 Form M29 and Ex. PW2/A, which were prepared prior to the registration of the present case. Either this document was prepared after the registration of FIR and the police officials deposed falsely on this aspect or the FIR number inserted in this document later on. The entire case of prosecution came under the cloud of doubt and the defence of accused that the entire case is a planted one seems to have merits.
12) The case property was sent to the FSL on 03.01.19, while the case property was recovered on 24.10.18. There is no explanation as to why the case property kept in the maalkhana for more than two months. The seal was with the raiding party members and the case property was lying in the maalkhana for the long time. There is no explanation as to this delay. The seizure memo and the FSL form was already prepared. The case property was required to be sent to FSL immediately for giving strength to the case of the prosecution. This creates a reasonable doubt in the case of prosecution.
13) Being guided by abovesaid case laws, it can be said that the seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same CIS No. 6671/19, State Vs. Suraj, FIR No. 359/18, PS. Nabi Karim, U/s. 33 Delhi Excise Act 8 / 10 CNR No. DL CT020129012019 can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the 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.
14) 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 CIS No. 6671/19, State Vs. Suraj, FIR No. 359/18, PS. Nabi Karim, U/s. 33 Delhi Excise Act 9 / 10 CNR No. DL CT020129012019 proof is not the same as that which rests upon the prosecution ..........................."
15) 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).
16) In view of the aforesaid discussion, in my opinion accused has been able to raise a probable defence creating doubt about the existence or veracity of the prosecution version which renders the same untrustworthy. Accordingly, accused Suraj is acquitted of the charge leveled against him. Case property be confiscated to the State. Same be destroyed. Bail bonds U/s 437 A Cr.PC furnished. File be consigned to Record Room after due compliance.
KAPIL Digitally signed by
KAPIL KUMAR
KUMAR Date: 2020.01.27
16:14:30 +0530
Announced in open court (Kapil Kumar)
on 27.01.2020 MM5/Central District
Tis Hazari Courts/Delhi
CIS No. 6671/19, State Vs. Suraj, FIR No. 359/18, PS. Nabi Karim, U/s. 33 Delhi Excise Act 10 / 10