Delhi District Court
State vs . Parveen Kumar on 6 July, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 174/19
U/s : 33 Delhi Excise Act
P.S. : Paschim Vihar West
State Vs. Parveen Kumar
JUDGMENT:
a) CNR No. : DLWT02-017324-2019
b) Sl. No. of the Case : 8636/19
c) Name & address of the : Ct. Mahender, No. 2034/OD,
complainant. PIS No. 28, PS Paschim Vihar West,
Delhi.
d) Name & address of : Parveen Kumar
accused S/o Lt. Sh. Lakshman Prasad
R/o Jhuggi, W-116/424-A, Camp
No. 4, Jwalapuri, Delhi.
e) Date of Commission of : 16.04.2019
offence
f) Offence complained off : u/S 33 Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Acquitted
i) Date of such order : 06.07.2022
Date of Institution : 24.10.2019
Final arguments heard on : 06.07.2022
Judgment Pronounced on : 06.07.2022
FIR No: 174/19 State v. Parveen Kumar Page No.1/19
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 16.04.2019 at about 07:50 PM at near Udhyog Nagar, Metro Station, Paschim Vihar within the jurisdiction of PS Paschim Vihar West, accused was found in possession of one plastic sack carrying on his shoulder containing 76 quarter bottles of 'Asli Santara Masaledar Deshi Sharab' for sale in Haryana only without any license or permit.
2. After investigation, challan for offence u/S 33 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33 Delhi Excise Act was framed against accused on 06.02.2020, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined two witnesses.
5. PW-1 Ct. Mahender, No. 2034/OD is the complainant who FIR No: 174/19 State v. Parveen Kumar Page No.2/19 deposed that on 16.04.2019, he was posted as Ct. at PS Paschim Vihar West, he was on patrolling duty at beat no. 3. At about 07:50 PM, when he reached Udyog Nagar Metro Station, he found that one person was carrying one plastic sack on his shoulders was coming from the direction of camp no. 4, Jhuggi. On looking him the person immediately turned back and tried to proceed towards Nangloi. He asked him loudly to stop but that went unheard by him. He paced his steps to stop him and stopped him. He asked him to bring down the plastic sack from which smell of illicit liquor was coming. He interrogated him and he told his name as Parveen. Accused was present in the court and was correctly identified by the witness. He opened the mouth of the sack and foul smell of illicit liquor was coming from it. He immediately called PS Paschim Vihar West, where he informed the DO. After which the IO ASI Jagdish came at the spot. He produced the accused and plastic sack before the IO and handed over him. IO tried to collect some public witnesses to involve in the investigation but they denied citing their own reasons. Thereafter, IO checked the plastic sack and found that it was containing 76 quarter bottles of "Asli Santra Masaledar Deshi FIR No: 174/19 State v. Parveen Kumar Page No.3/19 Sharab" for sale in Haryana only each of 180 ML. IO took out one quarter bottle as a sample bottle and put back all the 75 in the plastic sack. The mouth of the sample bottle was covered with a white cloth and sealed with the seal of "JP" and the mouth of the plastic sack was also covered with a seal of "JP". The seal was returned to him. The IO filled the M-29 form. Thereafter IO recorded his statement. The same was exhibited as Ex.PW1/A. IO seized the case property vide seizure memo Ex.PW1/B. Thereafter, IO prepared tehrir/rukka and sent him to the PS for registration of the FIR. After registration of the same he came back with the copy of FIR and Asal tehrir and handed over the same to IO. Thereafter, IO arrested the accused and personally searched vide memo Ex.PW1/C and Ex.PW1/D. IO prepared the site plan exhibited as Ex.PW1/E. The medical of the accused got conducted. Thereafter, they went to the PS alongwith the accused and deposited the case property.
At that stage, the MHC(M) has brought the case property. The MHC(M) has produced the order no. 14811/2019/4893-94 dated 18.10.2019, of the confiscation under Section 59 of the DEA, 2009 as per which it was ordered that 76 nips seized in the FIR No. FIR No: 174/19 State v. Parveen Kumar Page No.4/19 174/2019 PS Paschim Vihar West was destroyed. The order runs into 1 page. The copy of the order running into one page is marked as Mark "A". The case property i.e. sample bottle bears the details of the FIR with the seal of "JP". The witness was shown the sample nip/bottle of the seized case property to which he correctly identified as the part of the case property seized during the investigation.
In his cross-examination, witness/complainant deposed that the accused was arrested at around 11:00 PM by the IO concerned. He made call around to PS at about 07:50 PM. He was alone on patrolling duty. It was public place near the Metro there was lot of crowd. He caught the accused person without the help of public person. There was lot of public persons but no notice was served due to paucity of time otherwise and no public was ready to join the investigation. He did not remember that at what cloth was the accused wearing at the time of arrest. He did not remember whether IO prepared any document before preparing rukka. It was wrong to suggest that he has not joined the investigation. It was wrong to suggest that he did not remember the exact time of FIR No: 174/19 State v. Parveen Kumar Page No.5/19 process involved in the investigation because he was not there. It was wrong to suggest that he was deposing falsely and recovery was planted.
6. PW-2 ASI Jagdish, No. 181/OD is the IO in the present case who deposed that on 16.04.2019, he was posted as ASI in Paschim Vihar West. He got the information vide DD NO. 67-B, which was already Ex. As A-3. On receiving the information vide DD No. 67-B at around 08:05 PM he reached at the spot at Udyog Nagar Metro Station and met with Ct. Mahender, who produced before him one accused alongwith one plastic katta containing illicit liquor. He tried to collect public witness to join the investigation but they denied citing their own reason. Thereafter, he checked the plastic sack and it was found that plastic sack was containing 76 quarter bottles of illicit liquor of 180 ML each levelled as "Asli Santra Masaledar Deshi Sharab" for sale in Haryana only. One bottle was taken from plastic sack as sample and remaining 75 bottle were again put in sack and the sack containing bottles was sealed with the seal of "JP" and the sample bottle was sealed with the seal of FIR No: 174/19 State v. Parveen Kumar Page No.6/19 "JP" After covering its mouth with a white cloth. The case property was seized vide seizure memo already Ex.PW1/A. Thereafter, he filled form M-29. The same was marked as Mark "A". Now the same was Ex.PW2/A. The statement (Ex.PW1/A) of Ct. Mahender was recorded and he arrested the same at point B. he prepared the rukka which was Ex.PW2/B. The seal was given to Ct. Mahender and was sent to the PS for registration of the FIR. Ct. Mahender returned at the spot with the copy of FIR and the Asal Tehrir. Thereafter, he inquired the accused Parveen and he was arrested vide arrest memo Ex.pW1/C and he was personally searched vide personal search memo Ex.PW1/D. Accused was present in the court and was correctly identified by the witness. He could identify the case property, if shown to him. The site plan already Ex.PW1/E. Thereafter, he went to the PS, where he deposited the case property in the malkhana and whereafter, accused was produced before the court. He recorded his statement of witness. He recorded the statement of witnesses and prepared the chargesheet and submitted in the court. He could identify the case property, if shown to him.
FIR No: 174/19 State v. Parveen Kumar Page No.7/19
At that stage the MHC(M) has brought the case property. The MHC(M) has produced the order no. 14811/2019/4893-94 dated 18.10.2019, of the confiscation under Section 59 of the DEA, 2009 as per which it was ordered that 76 nips seized in the FIR no. 1741/19 PS Paschim Vihar West was destroyed. The order runs into one page. The copy of the order running into one page was marked as Mark "A". The case property i.e. sample bottle bears the details of the FIR with the seal of "JP". The witness was shown the sample nip/bottle of the seized case property to which he correctly identified as the part of the case property seized during the investigation. The same was Ex.P-1.
In his cross-examination, witness/IO deposed that it was about 07:45 KM distance between the police station and the site of crim. He reached the site of crime by his motorcycle. He did not remember the registration number of his bike, however, he remember that it may be DL-9SAQ-0385 make of Hero. The site of the crime was a crowded place and there was a heavy running traffic. It took about 10 minutes to reach to scene of the crime. He was informed in the PS by the DO at about 08:07 PM. He reached at FIR No: 174/19 State v. Parveen Kumar Page No.8/19 the spot at about 08:20 PM. He was alone at that time. When he reached at the spot, he found the accused alongwith the Ct. Mahender. He asked 3-4 public persons to join the investigation. He arrested the accused at about 11:00 PM and prepared the arrest memo at the spot of crime. He alongwith Ct. Mahender and accused went to the PS after the process of investigation completed on the scene of crime. At the time of making the arrest of the accused he informed the mother of the accused but she did not come at the spot. It was wrong to suggest that he had not prepared any arrest memo on the spot or that he had not informed mother of the accused. He did not remember that what cloth was the accused wearing at the time of arrest. It was wrong to suggest that he had not conducted the investigation. It was wrong to suggest that he did not remember the exact time of process involved in the investigation because he was not there. It was wrong to suggest that he was deposing falsely and recovery was planted.
7. After completion of prosecution evidence, all the incriminating evidence was put to accused U/s 313 Cr.P.C and his FIR No: 174/19 State v. Parveen Kumar Page No.9/19 explanation was recorded, wherein he denied all the incriminating evidence against him and claimed to have been falsely implicated and case property planted upon him. Accused chose not to lead DE.
8. The accused admitted FIR 174/19 alongwith certificate u/s 65B of Indian Evidence Act, DD No. 67-B dated 16.04.2019, Statement of Ct. Anil and Chemical Examiner report vide Ex.A-1 to Ex.A-5 u/s 294 Cr.P.C respectively.
9. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
10. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a FIR No: 174/19 State v. Parveen Kumar Page No.10/19 settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
11. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused Parveen Kumar is entitled to be acquitted for the charge by reasons of reasonable doubts in the prosecution story.
12. To infer the innocence of accused, it is noticed that there is no DD entry on the judicial record whereby PW1 Ct. Mahender had departed for patrolling duty on 16.04.2019 in beat no. 3 PS Paschim Vihar West. No explanation has been given by the prosecution as to the non production of the said DD entry vide which PW1 had proceeded on patrolling duty from the PS. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: FIR No: 174/19 State v. Parveen Kumar Page No.11/19
"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 & Police Posts where Register No. II is maintained.
13. In the present case, the above said provision appears to have not been complied with by the prosecution. As per the prosecution version, at the time of the apprehension of the accused with illicit liquor from his possession, Ct. Mahender (PW1), had left the PS for patrolling duty at 07:50 PM, but the said DD entries vide which he had left the PS for patrolling duty and to perform proceedings post seizure of illicit liquor have not been brought on record. In the opinion of this Court, the prosecution was FIR No: 174/19 State v. Parveen Kumar Page No.12/19 under an obligation to bring on record and prove the above said DD entries vide which the above said police official had left the PS, so as to prove the possibility of availability of said police official PW1 at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have brought on record and prove the DD entries by which the above said police official had left the PS, so as to inspire the confidence regarding their availability and presence at the place of apprehension of the accused, since the said police official was under bounden duty to enter his departure and arrival from/at the police station by making a D.D. entry in that respect as per the aforesaid mentioned Punjab Police Rules.
14. At this juncture, it is relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the FIR No: 174/19 State v. Parveen Kumar Page No.13/19 necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record and prove the relevant DD entries as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the police officials.
15. As deposed in examination in chief, PW1 has stated that IO/ASI Jagdish had asked some public persons to join the investigation, but all of them refused and left citing their own reasons. It is clear that no serious attempt was made by the concerned IO/PW2 to get independent public persons to join the police proceedings of seizure and apprehension of the accused with case property despite availability of such witnesses as admittedly the place of apprehension was nearby the metro station and the time was 07:50 PM and there was a lot of crowd at the spot. In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice FIR No: 174/19 State v. Parveen Kumar Page No.14/19 in writing to join the police proceedings for joining the investigation since after the apprehension of the accused person with case property, there was no possibility of accused person escaping their arrest or crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of apprehension by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. 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: " 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 FIR No: 174/19 State v. Parveen Kumar Page No.15/19 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 a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: " I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result FIR No: 174/19 State v. Parveen Kumar Page No.16/19 into enmity between them and the petitioner. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The FIR No: 174/19 State v. Parveen Kumar Page No.17/19 failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
16. Keeping in view the background of the case, defence of the accused, non-following the established procedure of law by the investigating agency, as discussed above, this Court is of the opinion that the accused is entitled to the benefit of doubt. In this regard, reliance can be placed on the case of State of Haryana v. Bhagirath, AIR 1999 SC 2005, the Hon'ble Supreme Court illustrated the doctrine of benefit of doubt in the words "The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but FIR No: 174/19 State v. Parveen Kumar Page No.18/19 an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
17. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, it is held that the prosecution has failed to prove the alleged offence under Section 33 Delhi Excise Act against the accused Parveen Kumar beyond reasonable doubt. The accused Parveen Kumar is hereby acquitted for the charged offence.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 06th day of July, 2022 06.07.2022.
FIR No: 174/19 State v. Parveen Kumar Page No.19/19