Delhi District Court
State vs . Bimla Devi on 5 May, 2022
IN THE COURT OF SH. JITENDRA PRATAP SINGH,
CHIEF METROPOLITAN MAGISTRATE (EAST):
KARKARDOOMA COURT: DELHI
FIR No. : 402/2010
PS : Pandav Nagar
U/s : 33 Delhi Excise Act.
STATE Vs. BIMLA DEVI
JUDGMENT
A.New No. 9316/2021
B Name of the HC Dharamvir Singh, No. 261/E, PS
complainant Pandav Nagar, Delhi.
C Name of the accused Smt. Bimla Devi W/o Sh. Rajbir
persons & their Singh, R/o Jhuggi No.160, Shastri
parentage and Mohalla, Patparganj Village, Delhi
110091.
addresses
D Offence Complained of 33 Delhi Excise Act. E Date of commission of 17.11.2010 offence.
F Date of Institution 30.04.2011 G Offence Charged 33 Delhi Excise Act. H Plea of the accused Pleaded not guilty. I Order Reserved on 05.05.2022 J Date of 05.05.2022 Pronouncement K Final Order Acquitted FIR No. 402/2010 State vs. BIMLA DEVI PS Pandav Nagar Date of Decision : Page 1 of 11
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE
1. Briefly stated the case of prosecution is that on 17.11.2010 at about 11.05am at Jhuggi No. 160, Shastri Mohalla, Patparganj, Mayur Vihar, Phase3, Delhi, within the jurisdiction of PS Pandav Nagar, the accused Smt. Bimla Devi was found in possession of illegal illicit liquor in huge quantity as mentioned in the seizure memo Ex.PW1/a without having any permit. Accordingly, the present FIR was registered against the accused for offence punishable u/s 33 Delhi Excise Act. Investigation was taken up. After completion of investigation, charge sheet was filed against the accused Smt. Bimla Devi for offence U/s 33 Delhi Excise Act and cognizance of the offence was taken on 19.09.2011 by the Ld. Predecessor of this Court.
CHARGE
2. On the basis of the chargesheet and after compliance of Sec.207 Cr.P.C., charge was framed upon the accused Smt. Bimla Devi 19.09.2011 for offence U/s 33 of Delhi Excise Act by Ld. Predecessor of this Court, to which charge, the accused pleaded not guilty and claimed trial.
3. PROSECUTION EVIDENCE
4. To bring home the guilt against the accused, prosecution has FIR No. 402/2010 State vs. BIMLA DEVI PS Pandav Nagar Date of Decision : Page 2 of 11 examined six witnesses in the case.
5. PW1 HC Akhilesh Kumar deposed that on 17.11.2010, he was posted at PS Pandav Nagar and was working as duty officer from 8.00am to 4.00pm. On that day, at about 1.40pm, Ct. Amit had produced a rukka before him in the PS for registration of FIR, which was sent by HC Dharamvir Singh. On the basis of rukka, he had registered present case FIR and proved computerized copy of the same as Ex.PW1/A and had made endorsement on the same vide Ex.PW1/B. After registration of FIR, he handed over the copy of FIR and original rukka to SI Praveen Kumar who left the PS with lady Ct. Bimla and Ct. Amit for further investigation.
6. PW2 HC Dharamvir deposed that on 17.11.2010, he was posted at PS Pandav Nagar, on that day he was on arrangement duty of Eid along with Ct. Raj Kumar and Ct. Amit. At about 10.50am, they were present at Shashi Garden, Patparganj, when one secret informer told regarding the sale of illicit liquor at Jhuggi No.160, Shashtri Mohalla, Patparganj, Delhi. He conveyed this fact to the SHO, who directed to raid the spot. He asked 34 public persons to join the raiding party, but none agreed and left the spot. Without wasting time, he along with members of raiding party reached the spot,i.e., Jhuggi No.160, Shastri Mohalla, where they found a woman inside the jhuggi. There were some cartoons of illicit liquor which were kept inside the jhuggi. That woman revealed her name as Bimla. She told them that jhuggi belonged to FIR No. 402/2010 State vs. BIMLA DEVI PS Pandav Nagar Date of Decision : Page 3 of 11 her. Accused Bimla was correctly identified by the witness. On counting, 24 cartons of illicit liquor were found out of which 8 cartons were of beer make Haywards 5000 Super Strong beer. Each carton was having 12 bottles. 16 cartons were of Desi Raseela Santra Masaledar.
He further stated that he put the numbers 1 to 8 on beer cartoons and 9 to 24 on Desi Raseela Masaledar bottles. He took out two bottles as sample randomly from the beer cartons and 3 quarter bottles randomly from the 16 cartons. He sealed the case property and the samples with the seal of DVS. After use the seal was handed over to Ct. Raj Kumar. He prepared the seizure memo Ex. PW2/A bearing his signature at point A. He seized the sample vide Seizure Memo Ex. PW2/C bearing his signature at point A. He prepared the site plan Ex. PW2/D bearing his signature at point A. He prepared the rukka Ex. PW2/B bearing his signature at point A. Ct. Amit Kumar was sent to the PS alongwith the rukka for registration of the FIR. Ct. Amit accompanied SI Praveen Kumar who came back to the spot and handed over to him the original rukka and copy of the FIR. Further investigation of the case was handed over to SI Praveen Kumar. Accused as well as the recovered case property and the documents were handed over to SI Praveen Kumar. He identified the case property and the same was exhibited as Ex. P1.
7. PW3 Ct. Bimla deposed that on 17.11.2010, he was posted at PS Pandav Nagar as W/Constable. On that day, she joined the FIR No. 402/2010 State vs. BIMLA DEVI PS Pandav Nagar Date of Decision : Page 4 of 11 investigation with IO. She alongwith SI Praveen reached Jhuggi No. 107, Shashi Garden, Shashri Mohalla, Patparganj, Delhi where HC Dharamveer, Ct. Raj Kumar and lady accused namely Bimla Devi and case property were present. HC Dharmbir told the IO that illicit liquor was recovered from the possession of the female accused and he handed over custody of the accused alongwith the recovered illicit liquor and already prepared documents to the IO. IO arrested the accused Bimla Devi vide memo Ex. PW3/A bearing his signature at point A. Personal search memo of accused was conducted by her in the house of the accused which was exhibited as Ex. PW3/B bearing her signature at point A. Her disclosure statement was also recorded. Thereafter, they all alongwith the case property and accused came to the PS after her medical examination. Case property was deposited in the malkhana. Thereafter, accused was sent to the J.C. IO recorded her statement. She identified the accused.
8. PW4 HC Raj Kumar and PW5 Ct. Amit Gulia corroborated the testimony of PW2 HC Dharambir. They also correctly identified the accused and the case property in the Court.
9. PW6Inspector Praveen Kumar deposed that on 17.11.2010, he was posted at PS Pandav Nagar. On that day, the investigation of the present case was handed over to him. Duty Officer gave him copy of FIR and original Tehrir. Thereafter, he alongwith Wct. Bimla and Ct. Amit reached at the spot, where HC Dharambir, Ct.
FIR No. 402/2010 State vs. BIMLA DEVI
PS Pandav Nagar
Date of Decision : Page 5 of 11
Raj Kumar met them and produced the accused along with recovered liquor from her. HC Dharambir handed over the seizure memo, form No. M29, site plan and case property to him. Thereafter, he interrogated the accused and arrested her vide memo Ex. PW3/A bearing his signature at point X and her personal search was conducted by Lady Ct. Bimla vide memo Ex. PW3/B bearing his signature at point X. Thereafter, they left the spot. Case property was deposited in the Malkhana. Accused was sent to JC. During Course of investigation, he sent the sample bottle to Excise Lab and after getting the result he prepared the chargesheet and filed before the Court. Accused was correctly identified the witness.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
10. Statement of accused persons was recorded u/s 313 Cr.P.C. on 08.04.2022 wherein the entire incriminating evidence proved on record against her, was put to the accused. She claimed to have been falsely implicated by the police officials because of her quarrel with one political leader namely Sandhya Verma who got her falsely implicated in this case and no recovery was effected from her. The accused opted not to lead any evidence in her defence.
11. I have heard the arguments as advanced by the Ld. APP for the State and the Ld counsel for the accused and have also perused the record.
FIR No. 402/2010 State vs. BIMLA DEVI
PS Pandav Nagar
Date of Decision : Page 6 of 11
12. The accused is charged with offence punishable u/s 33, Delhi Excise Act, 2009 which reads as under : "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 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 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 lakh rupees."
13. Chapter 22 Rule 49 of Punjab Police Rules, 1934, pro vides that the hour of arrival and departure on duty at or from a po lice 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 shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure FIR No. 402/2010 State vs. BIMLA DEVI PS Pandav Nagar Date of Decision : Page 7 of 11 of the officer concerned and shall be attested by the latter person ally by signature or seal.
In the present case, no departure entry of the police officials on patrolling or arrangement duty has been proved on record by the prosecution. Therefore, the circumstances leading to the fact of HC Dharamvir, Ct. Raj Kumar and Ct. Amit arriving at the house of ac cused has remained suspicious. The accused deserves to be given the benefit of this doubt. Reliance is placed on Rattan Lal Vs. State 1987 (2) Crimes 29.
14. In the present case, as per the police witnesses, public persons were requested to join the investigation by the IO but none of them agreed. However, no written notice was served upon them to join the proceedings in the present case or to face action U/sec. 187 IPC. Therefore, it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
15. Admittedly, the seal after sealing the case property and the sample was not handed over to any independent person. As per PW2, it was handed over to Ct. Raj Kumar. This creates a doubt on the integrity and authenticity of the sample. In the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) FIR No. 402/2010 State vs. BIMLA DEVI PS Pandav Nagar Date of Decision : Page 8 of 11 452, the Hon'ble Punjab and Haryana High Court held in Para 7 as :
"The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the sam ples being tampered with cannot be ruled out".
This was also held in Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773.
16. There is a serious question with regard to genuineness of seizure memo of case property. As per PW2, PW4 and PW5, the seizure memo Ex. PW2/A was prepared before the registration of the FIR. However perusal of seizure memo Ex. PW2/A shows that the FIR number of the present case is mentioned over the same. Same pen has been used to write the FIR no. as well as the other contents of the memo. This was not possible until and unless the seizure memo was prepared after the registration of FIR or that the IO had inserted the FIR number after the seizure memo was al ready prepared and thereby tampered it. Under both the circum stances, it creates doubt on the genuineness of the memo. In Mohd. Hasim Vs. State, 1999 VI AD (DELHI) 569, it has been held by Hon'ble Delhi High Court that: "Documents prepared before registering the FIR bears FIR Number, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording the FIR, and was held that in both case, prosecution case would FIR No. 402/2010 State vs. BIMLA DEVI PS Pandav Nagar Date of Decision : Page 9 of 11 collapse."
17. Lastly, it comes as a matter of extreme surprise that in none of the cases under Excise Act, the IO bothers to investigate regarding the source of illicit liquor and how the accused came to possess the same. The investigation on the same would not only make the prosecution case more credible but will also put a curb on similar such offences being committed in future, if the supplier is apprehended. However for reasons best known to the police, no investigation is done in this regard. The prosecution case invariably of a stereotype manner that some police officials were on law and order maintenance duty when they received secret information which led them to the accused from whose possession the liquor was recovered. This sounds too unrealistic to be true in every case.
18. It would also be worthwhile to refer to the judgement of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab AIR 1957 SC 637 regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after more than 50 years of its passing. It was observed in this case : "There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecu tion story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, re liable and unimpeachable evidence before an accused can be convicted."
FIR No. 402/2010 State vs. BIMLA DEVI
PS Pandav Nagar
Date of Decision : Page 10 of 11
19. Again in Jagdish Prasad vs State (Govt of NCT of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that : "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt."
20. In view of above observations and findings, in my considered opinion, the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accused Bimla Devi is given benefit of doubt and is hereby acquitted from offence punishable u/s 33 of Delhi Excise Act.
21. Ordered accordingly. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (JITENDRA PRATAP SINGH) CMM (EAST)/KKD/05.05.2022 Certified that this judgement contains 11 pages and each page bears my signatures.
(JITENDRA PRATAP SINGH)
CMM (EAST)/KKD/05.05.2022
FIR No. 402/2010 State vs. BIMLA DEVI
PS Pandav Nagar
Date of Decision : Page 11 of 11