Delhi District Court
State vs Pawan Kumar on 11 November, 2024
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
PAWAN KUMAR
CASE No. 291/2018
FIR No. 408/2016
P.S- Khyala
U/S- 33/38 Delhi Excise Act,
2009
1. Date of commission of offence : 05.10.2016
2. Name of the Complainant : HC Noor Singh
3. Name of the accused,
and his parentage and residence: Pawan Kumar S/o Late
Sh. Mangat Ram, R/o E-339, JJ
Colony, Khyala, Delhi
4. Date when judgment : 19.09.2024
was reserved
5. Date when Judgment : 11.11.2024
was pronounced
6. Offence Complained of : Section 33/38 of Delhi
or proved Excise Act 2009
7. Plea of accused : Pleaded not guilty
8. Final Judgment : Acquitted
FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 1
1. BRIEF FACTUAL POSITION:-
1.1 The brief facts of the case of the prosecution are that on 05.10.2016, at
about 07.35 PM in front of Shop No.179, Guru Nanak, DDA Market, Khyala, Delhi within the jurisdiction of PS - Khyala, accused Pawan Kumar was found in possession of one plastic katta containing 68 quarter bottles of Impact Grain Whisky for Sale in Haryana only (180 ML) without any license, permit or pass and in contravention of the Delhi Excise Act, 2009. Case property was seized and the present case was registered, starting the investigation in the present matter.
1.2. After completion of investigation, chargesheet was filed on 12.01.2018 indicting the accused for commission of the offence U/s 33/38 of Delhi Excise Act, 2009. Ld. Predecessor took cognizance and issued summons to the accused on 12.01.2018. Copy of the chargesheet in compliance with Section 207 CrPC was supplied on 05.03.2018.
1.3. Charge for the offence U/s 33/38 of Delhi Excise Act, 2009 was framed against the accused on 23.05.2018 to which he pleaded not guilty and claimed trial. On 30.04.2024, proceedings u/s 294 CrPC were conducted wherein the accused admitted copy of FIR No. 0408/2016 dated 05.10.2016, Certificate u/s 65 B of Indian Evidence Act, RC No. 59/21/17 dated 24.03.2017 and Excise result dated 18.04.2017.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of its case, has examined 06 witnesses in total, the details whereof along with documents exhibited thereby are given as under:
S. Name of Documents Dates of Dates of
No. Prosecution Exhibited in examinatio cross-
witnesses Evidence. n-in-chief. examination
PW- HC HC Noor (I) Form 25.10.2019 25.10.2019
FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 2
1 Singh M-29 -
Ex.PW1/A
(ii) Seizure
memo-
Ex.PW1/B
(iii) Seal -
Ex.PW1/C
(iv) Rukka/
Tehrir -
Ex.PW1/D
(v) Site Plan
- Ex.PW1/E
PW- W/HC (I) Certified 25.01.2023 25.01.2023
2 Pramila copy of
departure
entry in
register no.2
Part B -
Ex.PW2/A
(OSR)
PW- HC Rajender (I) Disclosure 25.01.2023 25.01.2023
3 Statement -
Ex.PW3/A
(ii) Arrest
memo -
PW3/B
(iii) Personal
search memo
- Ex.PW3/C
PW- Ct. Veer (I) Order of 25.01.2023 25.01.2023
4 Bhan confiscation
and
destruction
FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 3 alongwith report dated 20.08.2018 and certificate with photograph -Ex.P4/1
(colly)
(ii) Entry regarding deposition of case property - Ex.P4/2 (colly) PW- HC Suresh (I) Report of 08.05.2023 08.05.2023 5 the ECL-
Mark X1 PW- HC Deepak (I) Sample 03.01.2024 03.01.2024 6 quarter bottle
- Ex.P1
(ii) Record qua confiscation and destruction order of case property alongwith report dated 20.08.2018 and certificate FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 4 with the photograph -
Ex.P1 (colly) 2.2 PW-1 was HC Noor Singh who was posted on 05.10.2016 at PS Khyala and had left the PS at around 05.30 pm with Ct. Deepak and Ct. Rajender. During patrolling at around 07.35 pm they reached near 830 Bus Stand, Guru Nanak, DDA Market, J.J. Colony, Khyala, Delhi, he saw that the present accused namely Pawan Kumar was entering in shop no.149, DDA Market, Khyala, Delhi and at that time, he was having the possession of one sack. On suspicion, the accused was asked to stop there but on seeing the police officials, the accused tried to escape from the spot while leaving the sack nearby the shop. However, the accused was apprehended after chasing at a distance of 10-15 feet and then the said sack was checked which was found containing 68 quarter bottles of Impact Grain Whiskey for sale in Haryana only. At that time, 4-5 passersby were requested to join the recovery proceedings but none of them agreed and left the spot without disclosing their names and addresses. Due to paucity of time, notice could not be served and afterwards, further proceedings were carried out. In continuation of proceedings, one quarter bottle was taken out as sample while the remaining were placed in the same sack. The quarter bottle which was taken out as sample was wrapped from its bottle neck with white cloth and sealed with the seal of NS. In the same manner, the sack containing the remaining quarter bottles was fastened with white cloth and sealed with the seal of NS. Form M-29 was prepared and the recovered liquor was taken into possession vide seizure memo and seal after use was handed over to Ct. Deepak vide memo. After that, rukka/tehrir was prepared and handed over to Ct. Rajender for the registration of FIR and accordingly, after registration of FIR, he returned at the spot with HC Suresh Kumar to whom further investigation was marked. On his arrival, PW-1 handed over to him the custody of the accused, recovered liquor and the documents as mentioned above. He prepared site plan at instance of PW-1. After recording statement of PW-1 u/s 161 Cr.P.C. by the I0 and he had no further role in the investigation.
FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 5 2.3 PW- 2 W/HC Pramila has stated that on 05.10.2016, she was posted at PS Khyala as Constable and on that day, she was deputed to perform the duty of DD Writer from 04.00 pm to 12.00 midnight. During the said duty hours, DD No. 57 B was maintained in the PS qua evening beat of HC Noor Singh, Ct. Deepak, Ct. Paul Soren and Ct. Rajender for beat no.1 and in addition to the said duty, in the same DD entry, the departure entry of the other staff members were also made. One copy of the same was handed over to the concerned IO of the present case. The certified copy of the entry was exhibited by PW-2.
2.4 PW-3 HC Rajender has stated that on 05.10.2016, he alongwith HC Noor Singh and Ct. Deepak left the PS at around 05.30 pm for patrolling duty in the beat area no.1 and during the patrolling duty at about 07.35 pm when they reached in front of Shop No. 179 DDA Market, Khyala, the accused namely Pawan Kumar was present there and having in his possession one plastic sack. On suspicion, the accused was stopped and asked about the sack but he did not reply and the said sack was checked and was found containing 68 quarter bottles bearing mark of Impact Grain Whisky for sale in Haryana only. Some passersby were requested to join the recovery proceedings but none agreed and they all left the spot without disclosing their names and addresses. Due to paucity of time, notice could not be served upon the said public persons. Out of the recovered 68 quarter bottles, one quarter bottle was taken out as sample which was moored with white cloth from bottleneck and sealed with the seal of NS. The sample was given serial no.1 A and the remaining 67 quarter bottles were put in the same sack and the same was moored from its face with white cloth and sealed with the seal of NS. The said sack was given serial no.1 and Form M-29 was filled by the IO. Seal after use was handed over to Ct. Deepak and thereafter, the recovered liquor was taken into possession vide seizure memo. Further, IO prepared rukka/ tehrir and the same was handed over to PW-3 for the registration of FIR and thereupon, he got the present FIR registered and returned at the spot with HC Suresh to whom the further investigation was entrusted. On his reaching at the spot, IO FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 6 HC Noor singh handed over the recovered liquor in sealed condition with seizure memos and other documents to him. Then HC Suresh had prepared the site plan and thereafter, the disclosure statement of the accused was recorded and the accused was arrested and personally searched. After completion of the aforementioned proceedings, the accused alongwith case property were taken to PS where the accused was put behind the bars after getting his medical examination and the case property was deposited by the IO with MHC (M). The statement of PW-3 u/s 161 CrPC was recorded.
2.5 PW-4 Ct. Veer Bhan brought the record qua confiscation and destruction of the case property i.e. liquor seized in the present case. The orders of confiscation and destruction alongwith report dated 20.08.2018 and certificate with photograph were taken on record.
2.6 PW-5 HC Suresh Kumar stated that on 05.10.2016, he was in PS when he got the information from Duty Officer that a registered case has been marked to him for further investigation. Thereafter he alongwith Ct. Rajender went to the spot i.e. Shop No. 179 DDA Market Khyala where he met HC Noor Singh, Ct. Deepak and the accused. HC Noor Singh produced the case property and the accused alongwith Form M-29, handing over memo of the seal to PW-5. The number of the FIR was not mentioned on these document and PW-5 mentioned the FIR on these documents. Thereafter at the instance of HC Noor Singh he prepared the site plan, made enquiry from HC Noor Singh and recorded his statement. Thereafter, he interrogated the accused Pawan and recorded his statement. Then he arrested and personally searched the accused, got him medically examined. Thereafter they all alongwith the accused and the case property went to the PS where the case property was deposited in the PS Malkhana and the accused was put inside the lock up. He recorded the statemetns of the witnesses. The sample of the case property seized was sent to ECL for testing. After the examination from the ECL, PW-5 obtained the result from the ECL. Thereafter, he prepared the chargesheet and submitted the same before the Court.
FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 7 2.7 PW-6 HC Deepak stated that on 05.10.2016, he alongwith HC Noor Singh and Ct. Rajender were on patrolling duty in the beat area. At around 07.35 pm, In front of shop no 179 DDA Market Khyala, Delhi, he saw the accused Pawan Kumar with a plastic katta. Upon seeing the police officers, he tried to flee the spot. Finding him suspicious, they apprehended him and checked his katta and found illicit liquor inside it. Thereafter IO asked 4-5 public persons to join the investigation but they refused the same and left the spot without disclosing their names and addresses. Due to paucity of time, no notice was served by IO to them. Thereafter, IO checked the said katta and it was found containing 68 quarter bottles of illicit liquor bearing mark of Impact Grain whiskey for sale in Haryana only. On being aksed, the said accused revealed his name and other particulars. Out of those 68 quarter bottles, one quarter bottle was taken out as sample and moored with the white cloth from its bottleneck and sealed with the seal of NS. The rest of the quarter bottles were put in the same plastic katta moored with the white cloth and duly sealed with the seal of NS. The said plastic katta was given serial no. 1 and the sample quarter bottle was given serial no. 1A. After sealing, the seal was handed over to PW-6, form M-29 was prepared by the IO and the abovesaid liquor as well as sample were seized vide seizure memo. Thereafter, IO prepared the tehrir and the same was handed over to Ct. Rajender for registration of FIR. Ct. Rajender went to the PS and got the FIR registered. After registration of FIR, he returned back at the spot with 2 nd IO HC Suresh and handed over the copy of FIR and original tehrir to IO at the spot. The 2nd IO prepared the site plan, recorded the disclosure statement of accused, arrested the accused and personally searched him.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 After the prosecution evidence was closed, the entire incriminating evidence was put to accused person in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C. and statement of accused was recorded separately on 30.07.2024 wherein he denied the allegations and tendered explanation that he had been falsely implicated and nothing was recovered from his possession.
He opted not to lead any DE in his defence.
FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 8
4. ARGUMENTS:
4.1 Ld. APP for the State has argued that the accused person was apprehended with the case property which was recovered from him and on a combined reading of prosecution witnesses' testimony, offence under section 33/38 of Delhi Excise Act, 2009 stand proved beyond reasonable doubt, against the accused person.
4.2 On the other hand, Ld. Counsel for the accused person has argued that there is no legally admissible evidence against the accused person and that the accused person has been falsely implicated in the present case. He submitted that no videography, photography, examination of any public witness was done hence the recovery was doubtful. He argued thus that prosecution has failed to prove the case against the accused person beyond reasonable doubt and hence, the accused person is entitled to be acquitted.
5. APPRECIATION OF EVIDENCE AND FINDINGS ON MERITS:
5.1 In the present case, the accused person has been charged with the offence U/s 33/38 Delhi Excise Act, for being found in possession of illicit liquor without any licence, permit or pass, and in contravention of the notification issued by the Delhi Government.
5.2 Section 33 of Delhi Excise Act, 2009 states that:
whoever, in contravention of provisions 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 FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 9 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 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 with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees.
5.3 Section 38 of Delhi Excise Act, 2009 states that:
whoever has in his possession any liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six months and fine which may extend to one lakh rupees .
5.4. From a combined reading of the testimonies of the prosecution witnesses examined and the material placed on record in the final report, several doubts have been created over the factum of alleged recovery from the accused. To begin with, it is abundantly clear that the investigating authority has not made any effort to have any public witness join the proceedings at the time of recovery, arrest or completing other formalities. It is not the case of the prosecution that no public witnesses were available and it is stated by all recovery witnesses that public persons were asked to join the investigation but no formal notice was served on them. All the witnesses stated that apprehension of the accused had happened at evening time in front of a shop in the DDA Market but no notice was served on the public persons which must have been present and their names and addresses were not noted down.
FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 10 5.5 This is especially pertinent as the accused was apprehended at a public spot in a market area. The witnesses also internally contradicted themselves as PW-5 stated in his cross-examination that public persons were not joined as there were fewer passersby it being night time. However, PW-6 stated in his cross-
examination that the said market is open till 12.00 midnight whereas the recovery proceedings have been completed by 09.30 pm. When a statutory provision mandates that an independent witness has to be joined in the investigation, the IO is duty bound to comply with the same. Merely stating that the public persons refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency, more so, when the IO failed to even record the names and details of such person, and failed to take any required steps in terms of provisions of Cr.P.C and IPC as noted below.
Section 100(4) Cr.P.C states that, "before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do"....
Section 37 Cr.P.C. states that, "every person is bound to assist a Magistrate or police officer reasonably demanding his aid-
(a) in the taking or preventing the escape of any other person whom such Magistrate or police Officer is authorized to arrest ; or
(b) in the prevention of suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property".
FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 11 Section 42 Cr.P.C. states that, "when any person who, in the presence of the police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such persons have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate, if so required;
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction".
Section 187 IPC states that, " whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both;
and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 12 apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
5.6 The importance of getting independent witnesses to join the investigation has been laid out by the superior courts in a catena of judgments. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, the Hon'ble High Court of Punjab and Haryana observed that such explanations that public persons refused to join the proceedings are unreliable. Moreover, the Hon'ble Supreme Court of India also noted in the case of Pradeep Narayana Vs. State of Maharashtra AIR 1995 SE 930 that failure of the police to get persons from the locality to join the investigation during search creates doubt about its fairness, benefit of which has to be given to the accused. In the present matter, hence, the chances of false implication and planted recovery, as alleged by the defence, cannot be ruled out.
5.7 In his cross-examination, PW-1 could not recall the DD entry number for the departure entry for patrolling that brought him to the spot of recovery whereas the other two witnesses could correctly state the same. It is noted that PW-5 and PW-6 admitted that they had refreshed their memory from the police file before deposing the court. There is also a contradiction in the version stated by the three recovery witnesses as PW-1 and PW-6 have both stated that the accused tried to flee the spot upon seeing the police officials, however, PW-3 who accompanied them has not stated any such thing, merely stating that accused was stopped and enquired but he did not reply. This inherent contradiction was not resolved by the prosecution.
5.8 The recovery witnesses i.e. PW-1, PW-3 & PW-6 also stated in their examination-in-chief that the documents prepared by PW-1 were form M-29, seizure memo and seal handing over memo whereas PW-5 has remained silent about the handing over of seizure memo to him when he took over the investigation. The witnesses such PW-3 also admitted that the contents of these documents were prepared by PW-1 in one go. PW-1 stated in his cross-
FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 13 examination that he had not mentioned the particulars of the FIR on the said documents whereas PW-5 stated in his chief examination that he had mentioned the FIR number on such documents. However, perusal of documents, the seizure memo in particular show that the FIR number is mentioned in the same handwriting as the rest of the contents of the documents.
5.9 As per prosecution evidence, seal after use was handed over to PW-6. Tampering with the seal cannot be ruled out as the same remained with officials of the same police station as the IO himself. No independent witness was examined with respect to the same and no photography or videography was done during recovery, sealing or seizure proceedings. In a case where only police witnesses are available, it becomes incumbent upon such officials to comply with all procedural requirements and failure of the same shall work in the favour of the accused.
5.10 Most importantly, the very existence of violation of the excise policy has been brought into question as only one quarter bottle among those seized was sent for chemical analysis and found to contain alcohol. The presence of alcohol in the remaining allegedly recovered liquor bottles has not been proved by the prosecution. Neither was the batch number of the remaining bottles noted to correlate them with the sample bottle, as admitted by PW-6 in his cross- examination. Now, since the State has only found 1 bottle containing 180 ml alcohol, allegedly recovered from the accused, an offence under Section 33 of the Delhi Excise Act, 2009 cannot be said to have been made out, as the same falls within the maximum permissible limit specified under Rule 20 of the Delhi Excise Rules, 2010. No batch number of the remaining bottles corresponding to the sample seems to have been noted to indicate similarity of contents.
5.11 The cardinal principle of law that the prosecution has to prove its case beyond all reasonable doubts, remains the dictating factor. The standard of proof in criminal cases is not preponderance of probabilities but proof beyond all reasonable doubt. It is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 14 in all possibility, the offence must have been committed by the accused. In the present case it is apparent that the case of the prosecution suffers from several glaring loopholes and the possibility of planted or tampered recovery cannot be ruled out. Under the circumstances, it would not be legally viable to convict the accused merely on the basis of testimony of the police officials. Hence, accused Pawan Kumar S/o Late Sh. Mangat Ram, R/o E-339, JJ Colony, Khyala, Delhi is acquitted of the offences punishable u/s 33/38 of Delhi Excise Act, 2009.
File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN Digitally signed by
SUKRITI SUKRITI SINGH
COURT ON 11.11.2024 SINGH Date: 2024.11.12
18:43:52 +0530
(SUKRITI SINGH)
JUDICIAL MAGISTRATE
FIRST CLASS-04/WEST/
TIS HAZARI COURTS/DELHI
Containing 15 pages, all signed by the presiding officer Digitally signed SUKRITI by SUKRITI SINGH SINGH 18:43:45 Date: 2024.11.12 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI FIR No. 408/16 State Vs Pawan Kumar U/s 33/38 Delhi Excise Act 15