Delhi District Court
State vs . Shankar on 1 July, 2022
CNR No. DL WT02-018540-2018
IN THE COURT OF SH. KAPIL KUMAR
CHIEF METROPOLITAN MAGISTRATE- WEST
TIS HAZARI COURTS, DELHI
CNR No. DL CT-02-018540-2018
CIS No. 9677/2018
State Vs. Shankar
FIR No. 380/2018
PS. Kirti Nagar
U/s. 33 Delhi Excise Act
JUDGMENT
1) The date of commission of offence : 07.10.2018
2) The name of the complainant : HC Sunil Singh.
3) The name & parentage of accused : Shankar S/o Sh. Mohan Lal.
4) Offence complained of : u/s. 33 Delhi Excise Act 5) The plea of accused : Pleaded not guilty 6) Final order : Acquitted 7) The date of such order : 01.07.2022 Date of Institution : 10.12.2018 Judgment reserved on : 01.07.2022 Judgment announced on : 01.07.2022
CIS No. 9677/2018, State Vs. Shankar ; FIR No.380/18; PS. Kirti Nagar; U/s. 33 Delhi Excise Act 1/8 CNR No. DL WT02-018540-2018 THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution against the accused is that on 07.10.2018 at about 06.20 PM at Rama Road, Plot No. 64-65, Hindustan Vegetable, Gate No. 1 Industrial Area, Kirti Nagar, he was found in possession of illicit liquor, which was seized vide seizure memo Ex.PW1/C, without any permit or license and in contravention of provision of Delhi Excise Act.
2) After investigation, charge-sheet was filed against the accused. The copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr. P.C. Thereafter, charge was framed against the accused under Section 33 Delhi Excise Act to which she pleaded not guilty and claimed trial.
3) In support of its version, prosecution has examined four witnesses. Accused admitted as per section 294 Cr.PC, the factum as to the registration of the present FIR, endorsement on rukka, copy of DD no. 39 A and chemical analysis report. The relevant documents were given exhibits number and the concerned witnesses were dropped.
4) After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
5) I have heard Ld. APP for State and Ld Counsel for accused. I have also perused the record carefully.
6) The testimonies of prosecution witnesses are being touched upon, in brief, as follows:-
6.1) PW1 HC Sunil Singh deposed that on 09.10.2018, he was on patrolling duty and at about 06.20 pm, when he reached Rama Road, Hindustan Vegetables, the accused was apprehended on the CIS No. 9677/2018, State Vs. Shankar ; FIR No.380/18; PS. Kirti Nagar; U/s. 33 Delhi Excise Act 2/8 CNR No. DL WT02-018540-2018 basis of suspicion and was found the possession of illict liquor. He deposed that the information was given the police station and IO ASI Sunil came at the spot. He deposed that public persons were asked to join the proceedings but none agreed. He further deposed that the accused was found in the possession of 100 quarter bottles of illicit liquor out of which two were separated as sample. He deposed that sample bottles and the remaining quarter bottles were sealed with the seal of 'SK' and form-M29 was filed. He deposed that tehrir Ex.PW1/A prepared and the FIR (Ex. A1) was got registered. He further deposed that site plan Ex. PW1/B was prepared followed by the prepartion of seizure memo Ex. PW1/C. He deposed that the accused was arresed vide Ex.PW1/D and personally search vide Ex.PW1/E. He correctly identified the accused. During his testimony MHC (M) produced one quarter sample bottle in unsealed condition which was identified by the witness as P1. The MHC (M) also produced the order of destruction of case property passed by Excise Commissioner, the copy of which mark PW1/G. 6.2) PW2 HC Ashok deposed that vide RC number 136/21/18 marked PW2/A, the sample bottles were deposited in Excise Lab ITO.
6.3) PW3 ASI Sunil Kumar deposed on the lines of PW1. 6.4) PW4 HC Naveen proved the relevant entries qua the deposit of the case property in the malkhana Ex.PW4/A.
7) It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
CIS No. 9677/2018, State Vs. Shankar ; FIR No.380/18; PS. Kirti Nagar; U/s. 33 Delhi Excise Act 3/8 CNR No. DL WT02-018540-2018
8) Ld Counsel for the accused vehemently argued that the present case is a false one and is the example of high handedness of the police. He argued that the accused has been illegally framed in the present case and it is evident from the fact that the accused was allegedly apprehended from the public place but there is no public witness to the proceedings. He argued that police officials posted at police station Kirti Nagar conducted the entire proceedings and same is not trustworthy. Ld APP for the State argued that the public persons did not join the proceedings despite requests.
9) The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. It is evident from the testimony of PW-1 and PW3 that accused was apprehended along with the alleged illicit liquor at public place but there is no public witness in the present case. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two CIS No. 9677/2018, State Vs. Shankar ; FIR No.380/18; PS. Kirti Nagar; U/s. 33 Delhi Excise Act 4/8 CNR No. DL WT02-018540-2018 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".
10) The names of the persons to whom the request was made to join the investigation has nowhere mentioned. No written notice has been placed on record which must be given to the public persons. Merely deposing that public person refused to join the investigation is of no avail. Considering the aforesaid observations made by the Higher Courts, the omissions/failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
11) The seal was handed over to police official only. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the CIS No. 9677/2018, State Vs. Shankar ; FIR No.380/18; PS. Kirti Nagar; U/s. 33 Delhi Excise Act 5/8 CNR No. DL WT02-018540-2018 police officials themselves. Therefore the possibility of tampering with the contents of the sealed 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 tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh vs. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
No seal handing over memo is on record. The police official having the possession of the seal was posted in the same police station in the malkhana of which the case property was lying. There was ample opportunity for tempering with case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
12) Further the case property was sent for chemical examination on 12.10.2018 while the same was seized on 07.10.2018. The entire paper formalities were completed in 07.10.2018 only. When the entire codal formalities were completed on 07.10.2018 than the delay of around 5 days in sending the exhibits for chemical examination is beyond comprehension. Again the police official having the possession of the seal was posted in the same police station where the case property was lying. There was ample opportunity for tampering with the case property and benefit of this laxity on the part of investigating officer should go to the accused.
CIS No. 9677/2018, State Vs. Shankar ; FIR No.380/18; PS. Kirti Nagar; U/s. 33 Delhi Excise Act 6/8 CNR No. DL WT02-018540-2018
13) Further, in the considered opinion of this court the identification of the case property not came up on record. During the testimony of PW-1, one unsealed sample bottle was produced. This is beyond comprehension. Vide testimony of PW-1 it is came up on record that two sample bottles were separated and sealed by the IO out of which one bottle sent to FSL. The other bottle which have been produced in the court must have been produced in sealed condition. The unsealed bottle is of no sanctity at all. Further the order of Excise Commissioner as to the destruction of the case property was also not proved as per law. The photocopy of the order was marked and there was no efforts to prove that order by summoning the record from the office of Excise Commissioner. Besides this when the case property was destroyed, the MHC (M) must have prepared the photographs of the case property and the video recording of the proceedings. There is no evidence n record as to whether the case property of this case was actually destroyed or not. This turns out to be fatal for the case of the prosecution and the accused is entitled to have benefit of the same.
14) Being guided by above-said case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
15) In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court CIS No. 9677/2018, State Vs. Shankar ; FIR No.380/18; PS. Kirti Nagar; U/s. 33 Delhi Excise Act 7/8 CNR No. DL WT02-018540-2018 held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution ..........................."
16) The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
CIS No. 9677/2018, State Vs. Shankar ; FIR No.380/18; PS. Kirti Nagar; U/s. 33 Delhi Excise Act 8/8 CNR No. DL WT02-018540-2018
17) In view of the aforesaid discussion, in my opinion accused has been able to raise a probable defence creating doubt about the existence or veracity of the prosecution version which renders the same untrustworthy. Accordingly, accused Shankar is acquitted of the charge leveled against her. Case property be confiscated to the State. Same be destroyed. Bail bonds U/s 437 A Cr.PC furnished. File be consigned to Record Room after due compliance.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2022.07.01
13:56:10 +0400
Announced in the open court (KAPIL KUMAR)
on 01.07.2022 Chief Metropolitan Magistrate
West District, Tis Hazari Courts/Delhi
CIS No. 9677/2018, State Vs. Shankar ; FIR No.380/18; PS. Kirti Nagar; U/s. 33 Delhi Excise Act 9/8