Delhi District Court
State vs Teena on 18 April, 2023
IN THE COURT OF MS. DEEKSHA SETHI, MM-03, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-016520-2019 FIR No. : 228/2019 U/s : 33 Delhi Excise Act P.S. : Bindapur State versus Teena a) ID. No. of the Case : 18540/2019 b) Name & address of the : Ct. Vikram Complainant No. 1883/DW, PIS No. 28104937 PS Bindapur, Dwarka District, New Delhi. c) Name & address of : Teena accused W/o Sh. Rajender @ Radhe R/o H.No. C-121, Bhagwati Vihar, Uttam Nagar, New Delhi d) Date of Commission of : 20.03.2019 offence e) Offence complained of : 33 Delhi Excise Act State v/s Teena Page 1 of 17 Cr. Case No. 18540/2019 f) Plea of the accused : Pleaded not guilty. g) Ld. APP for the State : Sh. Manish Kaushik h) Final Order : Acquitted. i) Date of Institution : 26.11.2019 j) Judgment Pronounced on : 18.04.2023 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 20.03.2019 at about 11:40 AM, Ct. Vikram (hereinafter referred to as the 'complainant') was on patrolling duty in beat no. 4 and when he reached at the road in front of DD Flats, Bindapur, he saw that one lady was carrying a heavy white colored plastic katta on her shoulder and was going towards Partap Garden. The complainant stopped the accused (Teena) and checked the katta. It was found to be containing quarter bottles of illicit liquor. Thereafter, the complainant informed about the said incident at the police station and police official from PS Bindapur reached at the spot. An FIR bearing no. 228/2019 u/s 33 Delhi Excise Act was registered at PS Bindapur. Investigation of the case was thereafter handed over to Investigating Officer ASI Mukesh Kumar.
Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., State v/s Teena Page 2 of 17 Cr. Case No. 18540/2019 Teena. After taking cognizance of the offence, the accused was summoned to face trial.
3. On her appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against her, to which she had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined the following witnesses:
(i) PW-1 HC Vikram Kumar has deposed that he was posted at PS Bindapur as a constable. On 20.03.2019, he was on patrolling duty and was present at beat no. 4. At about 11:40 am when he reached on road, at Peer Baba Majar in front of DDA Flats Bindapur, he saw that one lady was carrying a heavy white plastic katta on her shoulder and was going from DDA Flats, Bindapur to Pratap Garden. Upon seeing him, she started walking away hastily. He (PW-1) stopped her and checked the katta. Upon checking, he found plastic quarter bottles of illicit liquor inside the plastic katta. The accused told her name as Teena w/o Rajender @ Radhey R/o house no. C-121, Bhagwati Vihar, Uttam Nagar, New Delhi. He shared the said information with the duty officer of the police station. ASI Mukesh reached at the spot along with a State v/s Teena Page 3 of 17 Cr. Case No. 18540/2019 woman constable. He produced the apprehended lady along with plastic katta of illicit liquor before them. IO recorded his statement and the same was exhibited as Ex. PW-1/A. IO checked the plastic katta and found it to be containing 48 quarter bottles (180 ml each) of Asli Santra Masaledar Desi Sharab for sale in Haryana only. IO took one quarter bottle as sample. He put back remaining quarter bottles into the plastic katta and tied its with opening as well as the sample with white cloth and sealed with the seal of 'MK'. IO seized the samples as well as the remaining illicit liquor vide memo Ex. PW-1/B. IO filled M-29 form at the spot and handed over the seal after use to him. IO prepared tehrir and handed it over to him for getting the FIR registered. After getting the FIR registered, he came back at the spot and handed over a computerised copy of FIR as well as original tehrir to the IO. The IO had prepared the site plan (Ex. PW-1/C) at his instance. After interrogation, IO recorded disclosure statement of accused which is exhibited as Ex. PW-1/D and arrested the accused vide memo Ex. PW-1/E. W/Ct.
Anita took the accused to DDU hospital for her medical examination. The case property as well as Form M-29 was deposited at the malkhana of the police station. The witness identified the accused in court. The destruction order of case property was exhibited as Ex. P-1 (OSR)(Colly.). The witness State v/s Teena Page 4 of 17 Cr. Case No. 18540/2019 identified the sample of the case property, i.e., one plastic quarter bottle of Asli Santra Masaledar desi Sharab for sale in Haryana only (180 ml). The same was exhibited as Ex. P-2. The witness was thoroughly cross-examined by Ld. Counsel for the accused.
(ii) PW-2 HC Baburam has deposed that he was posted at PS Bindapur as a constable. On 04.07.2019, on directions of the IO he had taken the sealed exhibits/ samples along with form M-29 vide RC no.
169/21/19 from MHC(M), PS Bindapur and deposited the same at Excise office ITO for result analysis. On the same day, he handed over the copy of receiving of RC to MHC(M) of the police station. The witness further deposed that the sealed exhibits/ samples were not tampered with during the time they were in his possession. IO recorded his statement u/s 161 CrPC. This witness was not cross- examined by Ld. Defence counsel despite having been granted an opportunity to do so.
(iii) PW-3 ASI Arvind has deposed that on 20.03.2019, he was posted at PS Bindapur as MHC(M) CP. On the directions of IO ASI Mukesh, he collected the case property and samples, both sealed with the seal of 'MK' and deposited them at the malkhana of the police station vide mud No. 2426/2019. The relevant record was exhibited as Ex. P-1 (OSR)(colly.). On 04.07.2019. He handed over the sealed exhibits vide State v/s Teena Page 5 of 17 Cr. Case No. 18540/2019 RC No. 169/21/19 to Ct. Baburam, who had deposited the same at Excise Office, ITO for result analysis. Ct. Baburam had handed over the receipt regarding the same to him (PW-3). The relevant record was exhibited as Ex. P-2 (OSR). The witness stated that the exhibits were not tampered with during the time they were in his possession. This witness was not cross-examined by Ld. Defence counsel despite having been granted an opportunity to do so.
(iv) PW-4 W/HC Anita has deposed that he was posted at PS Bindapur as W/Ct. On 20.03.2019 she was present at PS Bindapur and on the directions of the duty officer, she along with ASI Mukesh Kumar reached at the spot, i.e., in front of Peer Baba Bazar and met the complainant, who had produced one apprehended lady along with plastic katta which contained illicit liquor before them. The name of the apprehended lady was Teena W/o Rajender @ Radhey R/o Hno.C-121, Bhagwati Vihar, Uttam Nagar, Delhi. IO checked the plastic katta and found it to be containing 48 quarter bottles (180 ml each) of Asli Santra Masaledar desi Sharab for sale in Haryana only. The letters 'ADS' were written on cap of each quarter bottle. IO took one quarter bottle as sample and put back the remaining quarter bottles into the same plastic katta and tied its opening as well as the sample with a white cloth and sealed it State v/s Teena Page 6 of 17 Cr. Case No. 18540/2019 with the seal of 'MK'. IO had filled M-29 form at the spot. The sample and the remaining quarter bottles were seized vide memo Ex. PW-1/B. IO had handed over the seal after use to Ct. Vikram. IO recorded the statement of Ct. Vikram and prepared tehrir at about 1:20 PM. IO handed over the tehrir to Ct. Vikram for the purpose of getting the FIR registered. Ct. Vikram reached at the spot after some time after getting the FIR registered and handed over a computerised copy of FIR, certificate u/s 65- B of Indian Evidence Act and original tehrir to the IO. IO prepared site plan at the instance of Ct. Vikram. After interrogation, IO recorded disclosure statement of accused (Ex. PW-1/D) and arrested accused Teena in his (PW-4) presence vide memo Ex. PW-1/E. IO ASI Mukesh Kumar conducted the personal search of the accused in his (PW-4) presence vide memo Ex. PW-4/A. The witness further stated that he took the accused to DDU hospital for her medical examination. The case property was thereafter deposited at the malkhana of police station along with Form M-29. The witness identified the accused in court. The destruction order of case property was exhibited as Ex. P-1 (OSR) (Colly.). The witness identified the sample of the case property, i.e., one plastic quarter bottle of Asli Santra Masaledar desi Sharab for sale in Haryana only (180 ml). The same was exhibited as Ex. P-2.
State v/s Teena Page 7 of 17 Cr. Case No. 18540/2019The witness was thoroughly cross-examined by Ld. Counsel for the accused.
(v) PW-5 ASI Mukesh Kumar has deposed that he was posted at PS Bindapur as ASI. On 20.03.2019, upon receipt of DD no. 19B about the recovery of illicit liquor, he alongwith W/Ct Anita reached at the spot, i.e., in front of Peer Baba Majar, DD Flats, Bindapur and met Ct. Vikram who handed over the custody of the accused along with the plastic katta containing illicit liquor to him. The name and address of apprehended lady was Teena W/o Rajender @ Radhey r/o C-121, Bhagwati Vihar, Uttam Nagar, New Delhi aged about 22 years old. He recorded the statement of Ct. Vikram Ex. PW-1/A. He had asked four-five public persons to join the investigation but none of them agreed and had left the spot after disclosing their personal reasons and without informing their names and addresses. He checked the plastic katta and found it to be containing 48 quarter bottles (180 ml each) of Asli Santra Masaledar desi Sharab for sale in Haryana only. He took one quarter bottle as a sample and had put back the remaining quarter bottles in the plastic katta and tied the opening of plastic katta as well as the sample with a white cloth and sealed them with the seal of 'MK'. He seized the sample as well as remaining illicit liquor vide memo Ex. PW-1/B. He handed over the seal after use to Ct. Vikram and State v/s Teena Page 8 of 17 Cr. Case No. 18540/2019 filled M-29 form (Ex. PW-5/A). He prepared the tehrir (Ex. PW-5/B) and handed it over to Ct. Vikram for the purpose of getting an FIR registered. After some time, Ct. Vikram came back at the spot after getting the FIR registered and handed over to him a computerised copy of FIR and original tehrir. He prepared the site plan (Ex. PW-1/C) at the instance of Ct. Vikram. After interrogation, he recorded disclosure statement of accused Teena (Ex. PW-1/D) under supervision of W/Ct Anita. He arrested the accused under supervision of W/Ct. Antita vide memo Ex. PW-1/E. He also conducted personal search of the accused Teena vide memo Ex. PW-4/A under supervision of W/Ct. Antia. The case property was deposited at the malkhana of the police station along with form M-29 and a copy of seizure memo. He sent samples to the Excise office through Ct. Baburam for result analysis. The witness identified the accused in court. The destruction order of case property was exhibited as Ex. P-1 (OSR) (Colly.). The witness identified the sample of the case property, i.e., one plastic quarter bottle of Asli Santra Masaledar desi Sharab for sale in Haryana only (180 ml). The same was exhibited as Ex. P-2. The witness was thoroughly cross-examined by Ld. Counsel for the accused.
5. Vide separate statement of the accused u/s 294 CrPC, she had admitted the genuineness of FIR no. 228/2019 without State v/s Teena Page 9 of 17 Cr. Case No. 18540/2019 contents, DD No. 19B dated 20.03.2019 and result analysis of Excise Control Laboratory. The above-said documents were exhibited as Ex. A-1, Ex. A-2 and Ex. A-3 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC was recorded on 17.04.2023 wherein all the incriminating evidence appearing against the accused was put to her, which she had denied to be correct and submitted that she was innocent and falsely implicated. The accused chose not to lead any evidence in his defence.
7. It is argued by Sh. Manish Kaushik, Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of 48 quarter bottles of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and she be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, she be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the State v/s Teena Page 10 of 17 Cr. Case No. 18540/2019 relevant provisions of law and given my thoughts to the matter.
Findings of the Court
10.It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11.The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12.This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the cross examination of PW-1 HC Vikram Kumar (the complainant), cross examination of PW4 W/Head Constable and examination of PW-5 ASI Mukesh Kumar (the IO) reveals that the IO had asked four-five public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non- joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC State v/s Teena Page 11 of 17 Cr. Case No. 18540/2019 also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.'' (Emphasis supplied)
13.In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
14.Perusal of the record further reveals that there is a delay of about one hundred and four days in sending the samples to the Excise Control Laboratory for examination. The State v/s Teena Page 12 of 17 Cr. Case No. 18540/2019 Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
15.In the instant case, alleged recovery was made on 20.03.2019 yet the samples were sent to the Excise Control Laboratory for examination on 04.07.2019, i.e., after about one hundred and four days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
16.Perusal of the record further reveals that PW-1 HC Vikram Kumar (the complainant) as well as PW-5 ASI Mukesh Kumar (the IO) had stated in their cross-examination that he (the IO) had prepared the seizure memo Ex. PW-1/B of the illicit liquor and Form-M29 (Ex. PW-5/A) first and rukka was thereafter prepared and sent to the police station State v/s Teena Page 13 of 17 Cr. Case No. 18540/2019 for registration of FIR through PW-1 HC Vikram Kumar. It is, therefore, clear that the seizure memo of the illicit liquor as well as Form M-29 were prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, registered after the preparation of the seizure memo Ex. PW-1/B of the illicit liquor as well as Form M-29 Ex. PW-5/A, however, surprisingly, both the documents, i.e., seizure memo Ex. PW-1/B and Form M-29 Ex. PW-5/A bear the FIR number and it is thus, amazing since the number of the FIR could have come to his knowledge (PW-5) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by ASI Mukesh Kumar on seizure memo as well as Form M-29, which came into existence before registration of the FIR. However, as discussed above, the seizure memo Ex. PW- 1/B of the illicit liquor as well as Form M-29 Ex. PW-5/A bear the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"... 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, PW11/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.State v/s Teena Page 14 of 17 Cr. Case No. 18540/2019
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."
(Emphasis supplied)
17.In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/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 circumstance number of the FIR (Ex. PW4/B) had appeared on State v/s Teena Page 15 of 17 Cr. Case No. 18540/2019 the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/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."
(Emphasis supplied)
18.Let this court now analyse the evidence appearing on record keeping in mind the above judgments of the Hon'ble High Court of Delhi. In the present case, PW-1 HC Vikram Kumar (the complainant) and PW-5 ASI Mukesh Kumar (the IO) have categorically deposed in their cross-examination that the IO had prepared the seizure memo Ex. PW-1/B as well as Form M-29 (Ex. PW- 5/A) before the tehrir was prepared. In such a scenario, it remains unexplained as to how the FIR No. and its details figure on the top of the documents Ex. PW-1/B and Ex. PW-5/A. This creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said documents were prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.
19.Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case State v/s Teena Page 16 of 17 Cr. Case No. 18540/2019 beyond reasonable doubt that a katta which contained illicit liquor was recovered from the possession of the accused. The accused Teena is, therefore, acquitted of the offence u/s 33 Delhi Excise Act.
20.This judgment contains 17 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
21.Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
Digitally signed by Deeksha Sethi ANNOUNCED IN THE OPEN COURT Deeksha Date:
TODAY, i.e., ON 18.04.2023 Sethi 2023.04.18 15:10:05 +0530 Deeksha Sethi Metropolitan Magistrate-03 South-West District/New Delhi 18.04.2023 State v/s Teena Page 17 of 17 Cr. Case No. 18540/2019