Delhi District Court
State vs Mohd. Saleem U/S 33 Delhi Excise Act on 21 December, 2021
IN THE COURT OF SH. DEV SAROHA
MM05, (PATIALA HOUSE COURTS)
NEW DELHI DISTRICT: NEW DELHI
JUDGMENT
FIR No.:817/2015 PS: Sarojini Nagar
State vs Mohd. Saleem U/s 33 Delhi Excise Act
A The Sl. No. of the case : 10651/2017
b The date of commission : 09.11.2015
c The date of Institution of the case : 05.05.2016
d The name of complainant : HC Mahipal
e The name of accused and his : Mohd. Saleem S/o Sh Hanif R/o G 144, G Block, Saurabh Vihar, parentages Badarpur, Delhi.
f The offence complained of : 33 Delhi Excise Act. g The plea of accused : Not guilty h Orders reserved on : 17.12.2021 i The final order : Accused Mohd. Saleem S/o Sh. Hanif is acquitted for offence u/s 33 Delhi Excise Act. j The date of judgment : 21.12.2022
Brief statement of reasons for decision of the case:
1. Brief facts of the case are that on 09.11.2015 at about 06:15 PM, in front of Jain Mandir, Pillanji Village, New Delhi, within the jurisdiction of PS Sarojini Nagar, accused Mohd. Saleem S/o Sh Hanif was found in possession of one katta containing 4545 each quarter State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .1 of 16 illicit liquors having label of Spiced Country Spirit Masaledar Desi Sharab Asli (for sale in Haryana only) which were recovered from the possession of accused and accused did not have any permit or license for said illicit liquor. Matter was reported to Police Station. The illicit liquor recovered was seized and a case under Section 33 Delhi Excise Act, 2009 was lodged against the accused vide FIR No.817/2015, PS Sarojini Nagar.
2. After investigation, charge for offence under Section 33 Excise Act was filed. Compliance under Section 207 Cr.P.C. was done.
3. Charge was committing for the offence punishable under Section 33 Delhi Excise Act against the accused Mohd. Saleem, to which accused pleaded not guilty and claimed trial.
4. In support of its case, prosecution has examined 05 witnesses.
5. PW1/ Ct. Sudesh Kumar, who deposed that on 09.11.2015, he was posted at PS Sarojini Nagar as Constable. On that day, he and Constable Vikas were on road patrolling duty and duty hours from 8:00 AM to 8:00 PM. At about 6:15 PM, he along with Constable Vikas were standing in front of Jain Mandir, Pillanji Goan during their patrolling duty. They saw that there was a person who was carrying a plastic katta / bag on his head coming from Sarojini Nagar to Pillanji State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .2 of 16 Goan. When he saw them, he tried to turn back and tried to walk / fled away. On suspicion, they stopped him and they enquired about the abovementioned katta and asked him as to what was there in katta.
Thereafter, they opened the katta / bag in which there were two cartoon, with label of spiced country spirit masaledar Desi Sharab sale in Haryana only. There were other quotation printed on the aforesaid two cartoons. Thereupon, he was called to PS and narrated about the incident. After sometime HC Ashok along with Ct. Anoop came at the spot. Thereafter, HC/IO Ashok enquired about the accused person who disclosed his name Saleem S/o Haneef. The accused present in the Court was correctly identified by the witness. IO recorded his statement Ex.PW1/A bearing his signature and prepared the rukka and the same was handed over to Ct. Anoop to get the FIR registered. Thereafter, IO opened the aforesaid two cartoon and found 45 quarter each of Sharab labelled 'Asli Santra Masaledar Desi Sharab for sale in Haryana only". One quarter from each cartoon took out for sample and the same was sealed by the IO with the seal of AK and the rest 88 quarter Sharab were putted back in the aforesaid katta and the same was also, after tying with white cloth, sealed with the seal of AK. Thereafter, IO prepared seizure memo which is Ex.PW1/B bearing his signature at point A. Thereafter, IO arrested the accused vide arrest memo and personal search memo which is Ex.PW1/C and Ex.PW1/D respectively bearing his signature at point A. IO prepared the Form M
29. IO prepared the site plan on his instance which is Mark X and IO State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .3 of 16 recorded the disclosure statement of accused in his presence which is Ex.PW1/E bearing his signature at point A. The aforesaid sealed katta was handed over to Ct. Vikas, the case property has been destroyed as per the direction of the Assistant Commissioner Excise vide order no.FCONF/2017/814243 dated 03.07.2017 serial no.11 which is Ex.PW1/F (colly4 pages). It is submitted by the counsel for the accused that there is no objection regarding the identity of the case property. IO along with Ct. Anoop took the accused to PS and he left the place of incident.
The witness was cross examined by Defence counsel on behalf of accused. In his cross examination, the witness / PW1 has stated that he along with Ct. Vikas was on patrolling duty. The witness has admitted that the place of incident was public place. He does not know whether any public witness had joined in the investigation or not. He further states that the destruction order was shown to the witness which was already Ex.PW1/F, serial no.11. After seeing the same witness submits that the destruction order of the case property of FIR No.817/15 was of 87 nips, Rashila Santra Desi Sharab. Rest of the averments have been denied by the witness.
6. PW2 / HC Anoop Singh who deposed that on 09.11.2015 he was posted as Constable at PS Sarojini Nagar. On that day, on receiving of DD no.46B, he along with IO reached at the spot i.e. near Jain Mandir, Pillanji village, where Ct. Sudesh Kumar had produced accused Mohd.
State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .4 of 16 Saleem along with recovered illicit liquor. IO had recorded the statement of Ct. Sudesh. Thereafter, IO opened the plastic an two cartoons were taken from it bearing khakhi colour where on spiced country spirit masaledar desi sharab a quality product manufactured by ADS spirits Pvt. Ltd. villae Bhutiyam District Jhajjar, Haryana. IO checked the each peti and found 45 quarters of illicit liquor in each cartoon. Each quarter of illicit liquor was labelled as asli santra masaledar desi sharab for sale in Haryana only in addition to other text and lides of the quarter were of plastic and lids were covered by plastic tap. Thereafter, from each cartoon one quarter is taken out as specimen sample and seized and sealed by the seal of AK. Both the cartoons were given Sr. No.A1 and A2 and remaining quarter in each peti were seized and sealed by the seal of AK. Both the specimen sample were given serial no.B1 and B2. Entire case property were taken into possession vide seizure memo already Ex.PW2/B bearing his signature at point B. Form M29 were filled at the spot. Seal was handed over to Ct. Vikas. Thereafter, IO prepared tehrir for registration of case and handed over the same to him for registration of the case. He returned back at the spot and handed over the copy of FIR to the IO. During the course of investigation, IO arrested the accused vide arrest memo Ex.PW1/C bearing his signature at point B. A personal search was conducted of the accused vide memo Ex.PW1/D bearing his signature at point B. IO recorded the disclosure statement of accused vide memo Ex.PW1/E bearing his signature at point B. Thereafter, case property State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .5 of 16 was deposited in the malkhana and accused Mohd. Saleem was got medically examined and sent to lockup. On next day, he had also assisted the IO in the investigation of the present case. On next day, dossier of the accused was prepared at dossier cell Pushp Vihar Saket and thereafter, accused was produced before the concerned Court. He identified the accused Mohd. Saleem present in the Court and he stated that he can identify the case property if shown to him. At this stage, case property was shown to witness and after seeing the case property, the witness had stated that it was recovered from the possession of the accused Mohd. Saleem, quarter bottle is Ex.P1. Remaining case property has already been destroyed vide Ex.PW1/F. MHC(M) also produced two photographs while destroying the illicit liquor in execution of the abovementioned order. Both the photographs are Ex.P2 (colly). The witness was not cross examined on behalf of accused.
7. PW3 Constable Vikram who deposed that on 10.12.2015, he was posted at PS Sarojini Nagar as constable. On that day, he had taken the sample of illicit liquor of present case from malkhana and deposited the same to Excise Commissioner Office ITO, Delhi through road certificate no.69/21/15 dated 10.12.2015, the samples were two quarter bottle of asli santra masaledar desi sharab for sale in Haryana only and the same were sealed with the seal of AK. The serial number of the same were B1 and B2. Till the time the above said samples were in his State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .6 of 16 possession, they were intact condition. Road Certificate is Ex.PW3/A. The witness was cross examined by Ld. Defence counsel.
8. PW4/ ASI Ashok Kumarwho deposed that on 09.11.2015, he was posted as PS Sarojini Nagar as HC. He received DD no.46B regarding apprehension of one person along with illicit liquor at Jain Mandir near Pillanji Goan, New Delhi. Thereafter, he went to the spot along with Ct. Anoop. There, he met with Ct. Sudesh and Ct. Vikas. Ct. Sudesh had handed over him the illicit liquor and the accused. He had recorded the statement of complainant / Ct. Sudesh and prepared the one rukka. Complaint is already Ex.PW1/A bears his signature at point B. Rukka is Ex.PW4/B bears his signature at point A. He handed over the rukka to Ct. Anoop for registration of FIR. After sometime, Ct. Anoop came back at the spot and handed over him the original rukka and copy of FIR. The illicit liquor were containing in cartoon box each was containing 45 quarter bottles of asli santra masaledar desi sharab for the sale in Haryana only. He took out one quarter bottle from each box for sample. He made the pullanda of each box and sample. He gave serial no.A1 to A2 to cartoon boxes and gave serial no.B1 and B2 to samples. He sealed the same with the seal of AK after using the seal to Ct. Vikas. He seized the the case property vide seizure memo already Ex.PW1/B bearing his signature at point A. He arrested the accused Saleem and conducted his personal search. Arrest memo is already Ex.PW1/E, personal search memo Ex.PW1/D bears his signature at State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .7 of 16 point C. He also recorded the disclosure statement of accused Ex.PW1/E. The accused has been correctly identified by the witness in the Court. He also filled the Form no.M29 which is Ex.PW4/C bears his signature at point A. He also requested few public persons to join the investigation, however, no one had joined the same and left the spot without telling their name and addresses. The witness stated that he can identify the case property if shown to him. However, case property was disputed by the accused and his counsel.
The witness has been cross examined on behalf of Ld. Defence counsel. In his crossexamination, the witness / PW4 has stated that the spot was a public place. The witness has denied that he did not get joined any public person as independent witness as the accused is falsely implicated in the present case as the case property has been falsely planted to the accused. He further stated that he is an auto driver. The witness has denied that accused was apprehended from his house and not from the alleged spot. He also denied that he did not do the investigation in fair and proper manner.
9. PW5 / ASI Mahipal who deposed that he received the file of the present case for further investigation. He has gone through the file and the file was almost complete except the excise lab report. He got received the excise record. After completion investigation, he prepared the chargesheet and filed the same in the Court. The witness was cross examined by Ld. Defence counsel.
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10. Statement of the accused Mohd. Saleem under Section 294 Cr. PC was recorded wherein he admitted the factum of registration of FIR no.817/2015 as Ex. A1, Certificate u/s 65 B Indian Evidence Act as Ex. A2, DD No. 11B dated 09.11.2015 as Ex. A3, DD no.46B dated 09.11.2015 as Ex.A4, Result of Excise report dated 12.12.2015 as Ex A5.
11. Statement of the accused Mohd. Saleem S/o Sh Hanif was recorded under Section 313 Cr.P.C. separately, wherein the accused denied the recovery of illicit liquor from him. He alleged that he has been falsely implicated and the case property was planted upon him. The accused does not want to lead any defence evidence in his support. Hence, DE was closed vide order dated 01.11.2021.
12. Final arguments advanced by learned APP for State and learned Defence counsel were heard. Judicial record carefully perused.
13. 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.
State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .9 of 16 Further, it is a 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.
14. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused Mohd. Saleem is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story.
15. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: "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.
16. In the present case, the above said provision appears to have not been State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .10 of 16 complied with by the prosecution. As per the prosecution version, at the time of the apprehension of the accused with illicit liquor from him possession, Constable Sudesh (PW1) and Constable Vikas left the PS for patrolling duty, but the said DD entries vide which they had left the PS for patrolling duty and have not been brought on record. In the opinion of this Court, the prosecution was under an obligation to bring on record and prove the above said DD entries vide which the above said police officials had left the PS, so as to prove the possibility of availability of said police officials 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 officials 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 officials were under bounden duty to enter their 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. Constable Vikas was not even made a witness by the prosecution.
17. 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 State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .11 of 16 viewed by the court with suspicion, if the 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 actions of the members of the patrolling /raiding party.
18. As deposed, PW4 asked few public persons to join the investigation, but all of them refused and left the spot without disclosing their names and addresses. PW1 also admitted in his cross examination that place of seizure was a public place. It is clear that no serious attempt was made by the concerned IO 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. 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 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 State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .12 of 16 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 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 rigors 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 State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .13 of 16 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 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 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 State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .14 of 16 make the prosecution case highly doubtful".
19. The accused also took the defence that he has been falsely implicated in the present case and that he is just an auto driver and one person stopped him with a katta (bag) with him. He was coming from Sarojini Nagar to Pillanji Goan and after seeing the police, he fled away leaving the katta / bag in the auto.
20. The accused also took the defence that he was falsely implicated in this case as he failed to pay illegal gratification to the police official. In this present case considering the submission made on behalf of Ld. Counsel for accused, the possibility of false plantation of quantity on the accused cannot be completely ruled out.
21. Keeping in view the background of the case, defence of the accused, nonfollowing 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 State vs. Mohd. Saleem FIR No.817/2015 U/s 33 of Delhi Excise Act Page No .15 of 16 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 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."
22. 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 Mohd. Saleem beyond reasonable doubt. The accused Mohd. Saleem S/o Sh. Hanif is hereby acquitted for the charged offences u/s 33 Delhi Excise Act.
23. Accused Mohd. Saleem is directed to furnish bond under Section 437A Cr.P.C. in the sum of Rs.10,000/.
Announced in the Open (DEV SAROHA)
Court on 21.12.2022 MM05/PHC/New Delhi
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