Delhi District Court
State vs Pappue Kumar on 28 May, 2024
IN THE COURT OF SH. NIDHISH KUMAR MEENA
MM-10, DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-018022-2021
Cr. Case 4577/2021
STATE Vs. PAPPUE KUMAR
FIR No. 435/2020
P.S Kapashera
28.05.2024
JUDGMENT
Case No. : 4577/2021 Date of commission of offence : 18.09.2020
Date of institution of the case : 06.04.2021
Name of the complainant : Ct. Manoj Kumar
Name of accused and address : Pappue Kumar
S/o Sh. Satish
Sharma
R/o H. No. 416,
near Old Water
Tank, Bijwasan
Village, Kapashera,
New Delhi.
Offence complained of or proved : U/s 33/58 Delhi Excise Act.
Plea of the accused : Pleaded not guilty Final order : Acquitted
Date when reserved for judgment : 28.05.2024 Date of judgment : 28.05.2024 State Vs. Pappue Kumar Page No.1 / 17 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused Pappue Kumar (hereinafter referred to as the accused), pursuant to charge sheet filed qua him under Section 33/58 of Delhi Excise Act, 2009 (hereinafter the Delhi Excise Act) subsequent to the investigation carried out at P.S: Kapashera, in FIR no.
435/2020.
2. It is the case of the prosecution that on 18.09.2020, at about 08.45 p.m, near Babbar Chowk, Bijwasan, New Delhi, the accused was found driving vehicle i.e. Scooty bearing registration no. DL4SCZ8132 of which the accused was found owner and from the said vehicle one white gunny bag in which 2 brown colour boxes containing Officer's Choice Blue Grain Whiskey for sale in the State Delhi only 180 ml each containing 48 quarters, 20 loose bottle having label Royal Stage premium Whiskey for sale in the State of Delhi only, duty paid in Delhi net 375 ml and 8 quarters having label Royal Stag Premium Whiskey for sale in the State of Delhi only, net quantity 180 ml, without any permit or licence. The same were seized by the police officials and thereafter, an FIR was registered qua the accused. After investigation, the police filed the present charge sheet against the accused for commission of offence punishable u/s 33/58 of the Delhi Excise Act.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing the arguments, charge for offence punishable u/s 33/58 of The Delhi Excise Act was State Vs. Pappue Kumar Page No.2 / 17 framed qua the accused to which he pleaded not guilty and claimed trial. Further, the accused, vide his statement u/s 294 Cr.P.C, had admitted the genuineness of copy of FIR No. 435/2020 along-with certificate u/s 65B of IEA Ex. A1 (colly), Excise Lab report Ex. A2 and DD No. 70A and 80A both dated 18.09.2020 Ex. A3 (colly).
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined four witnesses in total.
5. PW-1 was HC Sandeep, who deposed that on 18.09.2020, he was on patrolling duty alongwith Ct. Manoj.
During patrolling, one secret informer met him. Again said, met Manoj. He told Manoj that one person who is coming on scooty is carrying illicit liquor with him. Ct. Manoj informed in this regard to the SHO, PS Kapashera. SHO, PS Kapashera directed Ct. Manoj to take appropriate action. Thereafter, he alongwith Ct. Manoj went to Babbar Chowk, Bijwasan as told by secret informer. The secret informer was not accompany. Again said, secret informer was also accompanying us. There secret informer pointed towards one person who was coming on a scooty bearing no. DL1SCZ8132 is carrying illicit liquor. Ct. Manoj asked him to stop the scooty but he tried to fled away from there after which The said PW put his motorcycle in front of his scooty to stop him. On checking, it was found that the said person has kept one plastic katta in front of scooty. On checking the said plastic katta it was found containing two cartons and some loose half bottles State Vs. Pappue Kumar Page No.3 / 17 and some quarter bottles of illicit liquor. Ct. Manoj shared this information to DO and asked him to send investigation officer. After some time, HC Narender came at the spot. Ct. Manoj shared all the information with Narender and handed over the custody of accused and case property to him. Thereafter, the said PW further deposed with respect to the investigation carried out by the IO in the present case after reached at the spot. Thereafter, the said PW was cross-examined by Ld. APP for the State as he was resiled from his previous statement. Through him, arrest memo, personal search memo and disclosure statement of accused was exhibited as Ex. PW1/A , Ex. PW1/B and Ex. PW1/C, seizure memo of illicit liquor was exhibited as Ex. PW1/D, seald handing over memo was exhibited as Ex. PW1/E, seizure memo of scooty was exhibited as Ex. PW1/F, seizure memo of RC was exhibited as Ex. PW1/G, his statement was marked as Mark 1/A, rukka was exhibited as Ex. PW1/X1, site plan was exhibited as Ex. PW1/X2 and case property was exhibited as Ex. P1, P2 and P3.
6. PW-2 was ASI Om Parkash, who deposed on similar lines as PW-1 and further deposed with respect to the investigation carried out by the IO in the present case after reached at the spot. Through him, his statement was exhibited as Ex. PW2/A.
7. PW-3 was HC Narender, who was the IO in the present case deposed that on 18.09.2020, he received DD no. 80A regarding apprehension of one person with illicit liquor. Thereafter, he went to the spot where he met Ct. Manoj, Ct.
State Vs. Pappue Kumar Page No.4 / 17Sandeep and one person whose name was revealed as Pappu Kumar. Ct. Manoj told me that illicit liquor was recovered from possession of Pappu Kumar and handed over his custody and one plastic katta to him. Thereafter, the said PW further deposed with respect to the investigation carried out by him in the present case after reached at the spot. Through him, form M-29 was exhibited as Ex. PW3/A.
8. PW-4 was HC Ashok Kumar, who deposed that on 24.12.2020, he gave the sample of this case to Ct. Vijay to deposite the same at Excise Lab. The RC in this regard was registered vide RC No. 247/21/20. Ct. Vijay later on handed over the receiving of the same to him. The said PW further deposed that till the case property is in his possession, no tampering was done.
9. On account of admission of accused u/s 294 Cr.P.C, PW at serial no. 2 HC Anil and PW at serial no. 6 Sh. Rajesh Joshi, as per list of prosecution witnesses were dropped from the list of prosecution witnesses and the formal proof of the documents sought to be proved by them was dispensed with.
10. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
11. Statement of the accused u/s 281 Cr.P.C read with Section 313 Cr.P.C. was recorded separately in which all the State Vs. Pappue Kumar Page No.5 / 17 incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case. Accused further opted to not lead evidence in his defence, hence DE was closed.
FINAL ARGUMENTS:
12. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s 33/58 of Delhi Excise Act has been proved beyond doubt.
13. Per contra, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused and that the accused has been falsely implicated by the police officials and the recovery of illicit liquor has been planted upon him. Arguing further, Ld. counsel has inter-alia submitted that no public witnesses were joined by the police officials during investigation and no recovery photographs were also taken on record by the investigating officer. It has also been argued that even if it is assumed that the police officials had genuinely made the alleged recovery from the accused, the prosecution has failed to prove that the accused was found in possession of alcohol, beyond the permissible limits. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused be given the benefit of doubt and is therefore, entitled to be State Vs. Pappue Kumar Page No.6 / 17 acquitted.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
14. Arguments adduced by Ld. APP for State and Ld. Counsel for accused have been heard. The evidence and documents on record have been carefully perused.
15. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Pappue Kumar has been indicted for the offence u/s 33/58 of Delhi Excise Act.
16. In order to prove the offence under Section 33 of the Delhi Excise Act, the prosecution must establish the fulfillment of all the essential ingredients of the offence. The contents of Section 33 of the Delhi Excise Act are reproduced as follows:
"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, State Vs. Pappue Kumar Page No.7 / 17 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."
It is also significant to note that Section 52 of Delhi Excise Act lays down a rebuttable presumption which goes as follows:
"Section 52. Presumption as to commission of 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.
2. ........."
17. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, as discussed hereinafter, careful scrutiny of the evidence placed on record State Vs. Pappue Kumar Page No.8 / 17 brings to light the fact that the case of the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible, owing to which, no presumption, as provided for under Section 52 of the Act, can be raised against the accused in the present case.
i). Doubtful Seizure Memo and Form M-29.
18. A careful reading of the testimony of PW-1 and PW- 2 reflects that HC Narender had seized the illicit liquor vide seizure memo Ex. PW1/D and filled in the form M 29 Ex. PW3/A, all at the spot and thereafter, had prepared the rukka Ex. PW1/X1 and handed over the same to Ct. Manoj, for registration of FIR. The narration of such a chronology of events leads to the irresistible conclusion that the seizure memo of the liquor and Form M-29 were prepared at the spot, prior to the rukka being sent to the police station for registration of the FIR and that the FIR was, therefore, admittedly registered after the preparation of these documents. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Ct. Manoj. Thus, ordinarily, the FIR number should not find mention in the seizure memo and Form M-29, both of which documents came into existence before registration of the FIR. However, quite surprisingly, perusal of seizure memo and Form M-29 reflects the mentioning of the full particulars of the FIR thereupon, which fact has remained unexplained on behalf of the prosecution. It is not even the case that the same, on the face of it, appears to have been written in separate ink or at some left over space. Rather, it appears to have been recorded in same State Vs. Pappue Kumar Page No.9 / 17 continuity, handwriting and ink as rest of the contents of these documents. No explanation from the prosecution is forthcoming as to how the FIR number surfaced on a document which was prepared prior to the registration of the FIR. This fact casts a fatal doubt upon the case of prosecution.
19. At this stage, reference may be made to the decision of the Hon'ble High Court of Delhi in Lalit v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as follows:
"....Learned counsel for the state concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex.PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa Ex.PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW 11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
20. Similarly, in paragraph 4 of Mohd. Hashim vs State, 82 (1999) DLT 375, the Hon'ble High Court of Delhi observed:
"...Surprisingly, the secret information (Ex. P.W. 7/A) received by the Sub-Inspector Narender Kumar Tyagi (P.W. 7), the notice under S. 50 of the Act (Ex. P.W. 5/A) alleged to have been served on the appellant, the seizure memo (Ex. P.W. 1/A) State Vs. Pappue Kumar Page No.10 / 17 and the report submitted under S. 57 of the Act (Ex. P.W. 7/D) bear the number of the FIR (Ex. P.W. 4/B). The number of the FIR (Ex. P.W. 4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex. P.W. 4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. P.W. 4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
21. The aforesaid rulings of the Hon'ble High Court of Delhi squarely apply to the facts in the present case as well, which leads to only one of the either inference, that is, either the FIR was registered prior to the alleged recovery of the illicit liquor, or that the said documents were prepared later in point of time. In either of the scenarios, a dent is created in the version of the prosecution, the benefit of which must accrue to the accused.
ii). The non-joining of any independent / public witness.
22. It is evident from the record that no public witness to the recovery of the liquor has been either cited in the list of prosecution witnesses or has been examined by the prosecution. Apparently, IO had even asked a few public persons to join the investigation, however, all of them refused to join the investigation and left the spot. Further, admittedly no notice was served to any such public person upon their refusal to join the investigation in the case. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, State Vs. Pappue Kumar Page No.11 / 17 from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi Vs. State"
1992 (2) C.C. Cases 314 (HC), wherein it was 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."
23. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"........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 from 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 into enmity between them and the petitioner.
4. 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 State Vs. Pappue Kumar Page No.12 / 17 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 IO must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non- joining 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."
24. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or more independent and respectable inhabitants of the locality are required to be made witnesses to such search, and the search is to be made in their presence. Under Section 100(8) Cr.P.C, refusal to be a witness can render such non willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the present case. Therefore, non-compliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity, makes the prosecution version highly doubtful.
25. This Court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the police witnesses in the State Vs. Pappue Kumar Page No.13 / 17 present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above, and hereinafter.
iii). Possibility of misuse of seal of the investigating officer.
26. As per rukka Ex. PW1/X1, after sealing the case property and the samples of illicit liquor with seal of 'NS', the aforesaid seal was handed over to Ct. Sandeep. However, Ct. Sandeep was a recovery witness and had apprehended the accused and was subsequently, a part of the investigation in the present case. Thus, the seal was not handed over to any independent witness. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness. Further though handing over memo is on record to show the genuineness of fact of actual handing over of seal by IO to Ct. Sandeep however no taking over memo is there on record to show as to when the seal was taken back from Ct. Sandeep or if it remained with him forever. In such a factual backdrop, since the seal was given to Ct. Sandeep, the seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property.
27. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
State Vs. Pappue Kumar Page No.14 / 17"....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 samples being tampered with cannot be ruled out. In the present case, the seal of Investigating Officer-Hoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out."
28. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the seealed 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 tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out...."
Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
State Vs. Pappue Kumar Page No.15 / 17iv). Other infirmities in the prosecution case.
29. Furthermore, inconsistency apparent from record pertains to information given by Ct. Manoj via DD no. 80A, wherein, the name of the person apprehended has not been mentioned in the same. Now, as per PW-1, the accused was first stopped, then his scooty was checked, and then upon finding the same to be containing illicit liquor, he was apprehended and his name was revealed to be Pappue Kumar. It was after this that information regarding the same was given by Ct. Manoj at the police station. In such a scenario, when the police official himself was the complainant in this case, the omission of name of apprehended accused in the relevant DD entry, raises doubt regarding the proceedings having been conducted at the spot and gives rise to the suspicion that the same were done in a mechanical manner in the PS itself and accused may have been falsely implicated in the present case. This fact has remained unexplained on behalf of the prosecution. In fact, this possibility of planted recovery upon the accused, further gains strength from the fact that the police did not bother at all to discover the source of illicit liquor or to further enquire about the potential customers of the same.
30. There is no gainsaying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the State Vs. Pappue Kumar Page No.16 / 17 prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for offence u/s 33/58 of Delhi Excise Act beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal.
31. Accordingly, this Court hereby accords the benefit of doubt to the accused for the offence u/s 33/58 of Delhi Excise Act and holds the accused not guilty of commission of the said offence. Accused Pappue Kumar is thus, acquitted of the offence u/s 33/58 of Delhi Excise Act.
32. Copy of this judgment be given free of cost to the accused.
Announced in the open court
on 28.05.2024, in presence of
accused and Ld. Counsel for
accused. NIDHISH Digitally
by NIDHISH
signed
KUMAR KUMAR MEENA
Date: 2024.05.28
MEENA 17:12:32 +0530
(NIDHISH KUMAR MEENA)
M.M-10/Dwarka Courts/28.05.2024
It is certified that this judgment contains 17 pages, Digitally signed by NIDHISH NIDHISH KUMAR all signed by the undersigned. KUMAR MEENA Date: 2024.05.28 MEENA 17:12:39 +0530 (NIDHISH KUMAR MEENA) M.M-10/Dwarka Courts/28.05.2024 State Vs. Pappue Kumar Page No.17 / 17