Delhi District Court
State vs Jagdish on 30 August, 2024
IN THE COURT OF SH. UMESH KUMAR, JUDICIAL
MAGISTRATE FIRST CLASS -09, SOUTH-EAST
DISTRICT / SAKET COURTS, DELHI
Cr. Case no. 20909/2019
STATE VS. JAGDISH
FIR No. 144/2018
PS (LODHI COLONY)
JUDGMENT
(a) C.N.R No. DLSE02-029715-2019
(b) Name of the Complainant SI Lala Ram
(c) Name of accused person Jagdish
S/o Sh. Ramu Ram
R/o Jhuggi No. T-442, Harijan
Camp, Mehar Chand Market,
Lodhi Colony, New Delhi
(d) Offence charged U/s 33 of Delhi Excise Act
(e) Date of commission of On 15.10.2018
offence
(f) Date of Institution 28.06.2019
(g) Plea of accused Accused pleaded not guilty and
claimed trial
(h) Order Reserved on 29.08.2024
(i) Date of judgment 30.08.2024
(j) Final Order Acquitted
BRIEF FACTS AND REASONS FOR DECISION:
1 The case of the prosecution is that on 15.10.2018 at about 06:30 P.M in front of Jhuggi No.T-442, Harijan Camp, Mehar Chand Market, Lodhi Colony, New Delhi, within UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.08.30 16:59:34 +0530 FIR No. 144/2018 State Vs. Jagdish 1 of 21 PS Lodhi Colony the jurisdiction of PS Lodhi Colony, accused Jagdish was found in possession of 2 plastic katta containing total 145 quarter bottles of illicit liquor having brand name Santa Masaledar Deshi Sharab without any license or permit. Accordingly, it has been contended that the accused Jagdish committed offence punishable under section 33 Delhi Excise Act, 2009.
2 After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence on 28.06.2019, the accused was summoned on to face trial.
3 On his appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under Section 33 of Delhi Excise Act, 2009 was framed against accused Jagdish, to which he pleaded not guilty and claimed trial.
4 Accused has admitted the document u/s 294 Cr.PC i.e. report of the chemical examiner no. SZD034138- SZD034139 dated 03.12.2018.
UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.08.30 16:59:40 +0530 FIR No. 144/2018 State Vs. Jagdish 2 of 21 PS Lodhi Colony 5 The prosecution has examined Retired SI Lalaram as PW-
1. He deposed that on 15.10.2018 he was posted as SI at PS Lodhi colony. He deposed that on that, he was on patrolling duty alongwith Ct. Jai Prakash and Ct. Saket and while patrolling when they reached at beat no. 6, Mehar Chand Market, shop no. 16. At about 6:20 pm, one secret informer had told him that the accused Jagdish is carrying illicit liquor to be sold in Haryana and was going to give it to Sumer Singh at his jhuggi. He further deposed that the secrete informer also told that if he be raided on time, he can can be apprehended by illicit liquor. He further deposed that he tried to join the public persons in the raiding party, however, they refused after giving various reasons. He further deposed that he then constituted the raiding party. He further deposed that after being pointed out towards the accused Jagdish, they apprehended the accused who was in possession of two white plastic sacks. He further deposed that he then searched the white plastic sacks, in which one of the sacks contained 100 quarter bottles and another contained 45 quarter bottles, on which it was written only for sale in Haryana only. He further deposed that he kept one sample bottle from each sack and sealed the remaining with the seal of "LR" and he also sealed the sample with his seal "LR" and prepared the Excise Form at the spot. He further deposed that he had seized the illicit liquor vide seizure memo Ex PW-1/A UMESH Digitally signed by UMESH KUMAR KUMAR 16:59:48 +0530 Date: 2024.08.30 FIR No. 144/2018 State Vs. Jagdish 3 of 21 PS Lodhi Colony bearing his signatures at point A. He further deposed that he gave the seal to Ct. Jai Prakash and prepared the seal handing over memo Ex PW-1/B bearing his signatures at point A. He further deposed that he then prepared the rukka Ex PW-1/C bearing his signatures at point A and handed over the same to constable Jai Prakash to get the FIR registered. He further deposed that after getting the FIR registered Constable Jai Prakash came back to the spot with IO HC Jawahar Singh. He further deposed that after IO came to the spot, he handed over the documents to him and the accused. He correctly identified the accused in the court. He correctly identified the photographs of said illicit liquor Ex P-1. He also correctly identified the sample bottles Ex P-2 and Ex P-3.
6 PW-1 has been duly cross-examined by Ld. Counsel for the accused.
7 The prosecution has examined HC Saket as PW-2. He deposed that on 15.10.2018 he was posted as S.I at PS Lodhi colony. He deposed that on that day he was on patrolling duty alongwith Ct. Jai Prakash and SI Lala Ram. He further deposed that while patrolling when they reached at beat no. 6, Mehar Chand Market, shop no. 16, at about 6:20 pm, one secret informer had told him that the accused is carrying illicit liquor to be sold in Haryana and UMESH Digitally signed by UMESH KUMAR KUMAR 16:59:58 +0530 Date: 2024.08.30 FIR No. 144/2018 State Vs. Jagdish 4 of 21 PS Lodhi Colony was going to give it to Sumer Singh at his jhuggi. He deposed that the said secrete informer also told that if he be raided on time, he can be apprehended by illicit liquor. He further deposed that he tried to join the public persons in the raiding party, however, they refused after giving various reasons. He further deposed that he then constituted the raiding party and after being pointed out towards the accused Jagdish, they apprehended him who was in possession of two white plastic sacks. He further deposed that he then searched the white plastic sacks in which one of the sacks contained 100 quarter bottles and another contained 45 quarter bottles on which it was written only for sale in Haryana only. He further deposed that he kept one sample bottle from each sack and sealed the remaining with the seal of "LR". He also sealed the sample with my seal "LR" and prepared the Excise Form at the spot. He further deposed that he had seized the illicit liquor vide seizure memo Ex PW-1/A bearing his signatures at point B. He further deposed that he gave the seal to Ct. Jai Prakash and prepared the seal handing over memo Ex PW-1/B bearing his signatures at point B. He further deposed that he then prepared the rukka and handed over the same to Ct. Jai Prakash to get the FIR registered and after getting the FIR registered Ct. Jai Prakash came back to the spot with IO HC Jawahar Singh. He further deposed that after IO came to the spot he handed over Digitally signed UMESH by UMESH KUMAR KUMAR 17:00:08 Date: 2024.08.30 +0530 FIR No. 144/2018 State Vs. Jagdish 5 of 21 PS Lodhi Colony documents to him and the accused. He further deposed that thereafter the second IO prepared site plan Ex PW-2/A bearing his signatures at point A. He further deposed that the accused was arrested by HC Jawahar Singh Ex PW- 2/B bearing his signatuers at point A and also conducted his personal search vide memo Ex PW-2/C bearing his signatures at point A. He further deposed that the disclosure statement was recorded vide memo Ex PW-2/D bearing his signatuers at point A. He further deposed that IO recorded his statement u/s 161 Cr.PC. He correctly identified the accused in the court. He also correctly identified the case property.
8 PW-2 has been duly cross-examined by Ld. Counsel for the accused.
9 The prosecution has examined ASI Shyam Lal as PW-3. He had brought the register No. 19 of year 2018 and the copy of relevant page containing the entry No. 997 for deposition of case property of present case i.e. 100 quarters "asli santra masaledar desi sharab for sale in Haryana only" in Malkhana is Ex.PW3/A (OSR). He had also brought order no. F.CONF./2019/5319-20 dated 14.10.2020 wherein the case property in the present FIR number was destroyed given at serial no. 17 and the copy of the order is Mark A (colly).
Digitally signedUMESH by UMESH KUMAR KUMAR Date: 2024.08.30 17:00:13 +0530 FIR No. 144/2018 State Vs. Jagdish 6 of 21 PS Lodhi Colony 10 PW-3 has been duly cross-examined by Ld. Counsel for the accused.
11 The prosecution has examined HC Jai Prakash as PW-4.
He deposed that on 15.10.2018 he was posted as Constable at PS Lodhi colony. He deposed that on that day he was on patrolling duty alongwith Constable Saket and SI Lala Ram and while patrolling when they reached at beat no. 6, Mehar Chand Market, shop no. 16. At about 6:20 pm, one secret informer had told Ct. Saket that the accused is carrying illicit liquor to be sold in Haryana and was going to give it to Sumer Singh at his jhuggi. He further deposed that he tried to join the public persons in the raiding party, however, public persons refused after giving various reasons. He further deposed that he then constituted the raiding party and after being pointed out towards the accused Jagdish, they apprehended the accused who was in possession of two white plastic sacks. He further deposed that he then searched the white plastic sacks in which one of the sacks contained 100 quarter bottles and another contained 45 quarter bottles on which it was written only for sale in Haryana. He further deposed that he kept one sample bottle from each sack and sealed the remaining with the seal of "LR". He further deposed that he also sealed the sample with my seal "LR" and prepared the Excise Form at the spot. He further deposed that he had seized the illicit liquor vide seizure memo Ex PW-1/A Digitally signed by UMESH UMESH KUMAR KUMAR Date:
2024.08.30 FIR No. 144/2018 State Vs. Jagdish 17:00:19 +0530 7 of 21 PS Lodhi Colony bearing his signatures at point C. He further deposed that the seal was given to him and seal handing over memo was prepared Ex PW-1/B. He further deposed that HC Jawahar Singh then prepared the rukka and handed over the same to him to get the FIR registered and after getting the FIR registered he came back to the spot with IO HC Jawahar Singh. He further deposed that IO came at the spot and handed over documents to him alongwith the accused. He further deposed that thereafter second IO prepared the site plan Ex PW-2/A. He further deposed that the accused was arrested by HC Jawahar Singh Ex PW-2/B bearing his signatures at point B and also conducted his personal search vide memo Ex PW-2/C bearing his signatures at point B. He further deposed that the disclosure statement of accused was recorded vide memo Ex PW-2/D bearing his signatures at point B. He further deposed that IO recorded his statement u/s 161 CrPC. He identified the case property Ex P-2 and Ex.P-3 and the photographs Ex.P-1.
12 PW-4 has been duly cross-examined by Ld. Counsel for the accused.
13 The prosecution has examined ASI Jawahar as PW-5. He deposed that on 15.10.2018 he was posted as HC at PS Lodhi Colony. He further deposed that the investigation of Digitally signed by UMESH UMESH KUMAR KUMAR Date:
2024.08.30 17:00:27 +0530 FIR No. 144/2018 State Vs. Jagdish 8 of 21 PS Lodhi Colony the present case was marked to him after the registration of FIR. He further deposed that he along with HC Jai Prakash went to the spot where he found SI Lala Ram, Ct. Sanju along with accused Jagdish. He further deposed that SI Lala Ram handed over the accused and case property to him. He further deposed that he then prepared the site plan Ex. PW2/A bearing his signature at point B. He further deposed that he arrested the accused vide arrest memo Ex. PW2/B bearing his signature at point B and also conducted his personal search vide personal search memo Ex. PW2/C bearing his signature at point B. He further deposed that he also recorded disclosure statement of accused Ex. PW2/C, bearing his signature at point C. He further deposed that after getting medical examination of accused, he was sent to lockup. He further deposed that on 02.11.2018 he had sent the sample to excise laboratory vide road no. 100/21/2018 and the RC Ex. PW5/A bearing his signature at point A. The identify of accused was not disputed during his cross examination.
14 PW-5 has been duly cross-examined by Ld. Counsel for the accused.
15 The prosecution has examined ASI Kailash Chand as PW-
6. He deposed that on 30.12.2018 he was posted as HC at PS Lodhi Colony. He further deposed that on that date the Digitally signed UMESH by UMESH KUMAR KUMAR Date: 2024.08.30 17:00:42 +0530 FIR No. 144/2018 State Vs. Jagdish 9 of 21 PS Lodhi Colony case file was marked to him after the registration of FIR. He further deposed that he collected the report from Excise Department Ex.A4. He further deposed that the investigation was complete in all other aspects. He further deposed that he then prepared the charge sheet and filed before the court.
16 PW-6 was cross-examined by Ld. Counsel for the accused.
17 Thereafter, Prosecution evidence was closed vide order dated 17.05.2024 and the statement of accused Jagdish under Section 313 Cr.P.C was recorded on 29.08.2024. Accused denied all evidence led against him as incorrect and also pleaded innocence and false implication. The accused opted not to lead defence evidence. Thereafter, the matter was listed for final arguments.
18 Final arguments were heard from Ld. APP for the State and Ld. Counsel for the accused. Record has been carefully perused.
19 The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the Digitally signed UMESH by UMESH KUMAR KUMAR Date: 2024.08.30 17:00:48 +0530 FIR No. 144/2018 State Vs. Jagdish 10 of 21 PS Lodhi Colony prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
20 In the present case, the Prosecution has alleged that the police officials of PS Lodhi Colony recovered illicit liquor on 15.10.2018 at about 06:30 P.M in front of Jhuggi No.T- 442, Harijan Camp, Mehar Chand Market, Lodhi Colony, New Delhi from accused Jagdish who was found in possession of 2 plastic katta containing 145 quarter bottles of Illicit liquor having brand name Santra Masaledar Deshi Sharab for sale in Haryana only seizure memo Ex. PW-1/A without any license or permit and has committed an offence under Section 33 of Delhi Excise Act, 2009.
21 It is a settled proposition of criminal law that the Prosecution is supposed to stand its own legs and to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled law that primary burden of proof for proving offence in a criminal trial rest on the shoulders of the Prosecution. It has to be seen whether the Prosecution had been able to establish the guilt of the accused beyond reasonable doubt.
22 As elaborated above, the Prosecution has examined six witnesses who all are formal/police witnesses. Evidently, no public witness to the recovery of the liquor has been Digitally signed UMESH by UMESH KUMAR KUMAR Date: 2024.08.30 17:00:55 +0530 FIR No. 144/2018 State Vs. Jagdish 11 of 21 PS Lodhi Colony either cited in the list of witnesses or examined by the Prosecution. The recovery is alleged to have been effected from a public place at around 06:30 P.M. Thus, at the place and time of the alleged recovery of illicit liquor and apprehension of the accused Jagdish, public persons would in all likelihood have been present and available or have at least passed by the spot. In fact, almost all the police officials in the raiding party have admitted the presence of public persons and they were asked to join the raiding team as witnesses but none of those joined. During cross examination of PW-1, PW-3 and PW-4, they deposed that public persons were asked to join the investigation but they refused after giving various reasons. There is nothing on record to show if any notice was given to the public persons for joining the proceedings.
23 Be that as it may, the Prosecution has failed to prove that any serious effort was made by recovery witnesses who were police officials to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. Section 100 (4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Further, there is nothing on record to show that recovery witnesses / police officials had served any notice under Section 160 Cr.PC upon the UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.08.30 17:01:02 +0530 FIR No. 144/2018 State Vs. Jagdish 12 of 21 PS Lodhi Colony persons who refused to join the investigation Same has not been done in the present case. Joining of independent witnesses would have given credibility to the recovery proceeding. Therefore, non-joining of independent witness casts a doubt on the fairness of the investigation.
24 In a case law reported as "Anoop V/s State", 1992 (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 shop-keepers 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".
25 In an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
"3. 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 evidence of the prosecution UMESH Digitally signed by UMESH KUMAR KUMAR 17:01:09 +0530 Date: 2024.08.30 FIR No. 144/2018 State Vs. Jagdish 13 of 21 PS Lodhi Colony witnesses that some witnesses from the public were available and they were asked to join the investigation but they refused to do 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 Investigation 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 he witnesses from the public had refused to 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 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".
26 In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-
"5. In a criminal trial, it is for the prosecution to UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.08.30 17:01:15 +0530 FIR No. 144/2018 State Vs. Jagdish 14 of 21 PS Lodhi Colony establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
27 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.
28 Having observed as above, this Court is also conscious that the Prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. However, in the present case, it is UMESH Digitally signed by UMESH KUMAR FIR No. 144/2018 KUMAR 17:01:24 +053015 of 21 State Vs. Jagdish Date: 2024.08.30 PS Lodhi Colony not only the absence of public witnesses which raises a doubt on the Prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the Prosecution version.
29 One other glaring loophole in the story of the prosecution is that that entire version of the prosecution hinges on the information given by one "secret informer", however, for reason best known to the prosecution, such secret informer has neither been named nor finds any mention in the list of witnesses. Had such witness been examined it would have lent necessity support to the story of the prosecution.
30 The next inconsistency in the case of the prosecution is the failure to prove the arrival and departure entries of the police officials. It is pertinent to mention that the present case rests entirely on the alleged recovery of case property, i.e. illicit liquor from the possession of the accused persons at the relevant time by the police officials who were on patrolling duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for above purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:-
UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.08.30 17:01:30 +0530 FIR No. 144/2018 State Vs. Jagdish 16 of 21 PS Lodhi Colony "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."
31 Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials who were allegedly on patrolling duty at the relevant time and had apprehended the accused with case property becomes a vital piece of evidence. In the case in hand neither the departure entry nor arrival entry was proved by prosecution. Proof of the said entry is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official. Therefore, the failure to prove the aforementioned entries casts a doubt on the story of the prosecution.
32 In such cases, the chemical analysis of the liquor sample is of utmost importance and is an essential piece of evidence, however the handling of the sample and its subsequent examination has also been put to doubt. As per the prosecution story, the alleged liquor was seized on 15.10.2018, however, the sample was deposited in the Digitally signed UMESH by UMESH KUMAR KUMAR 17:01:35 Date: 2024.08.30 +0530 FIR No. 144/2018 State Vs. Jagdish 17 of 21 PS Lodhi Colony Excise Control Laboratory on 02.11.2018. It has not been explained in whose custody the sample remained till the time it was sent for examination, therefore, the authenticity of sample or its tampering cannot be ruled out.
33 PW-1/ Retired SI Lala Ram, during his cross examination has deposed that he had not informed the higher official when the illicit liquor was seized from the accused. However, PW-2 / HC Saket and PW-4 / HC Jai Prakash, during their cross examination, had deposed that PW-1 had informed the higher officials through his mobile phone about the recovery of illicit liquor at about 06:30 P.M. 34 Further, as per evidence on record, the seal after use was not given to any independent public person but was infact given to PW-4/ HC Jai Prakash by PW-1/ Retrd. SI Lala Ram, who was also a material prosecution witness being a witness to the alleged recovery of the illicit liquor from the possession of the accused, such material witness of a case is always interested in the success of the case of the prosecution and keeping in view of this fact, chances of fabrication of case property cannot be ruled out. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.08.30 17:01:41 +0530 FIR No. 144/2018 State Vs. Jagdish 18 of 21 PS Lodhi Colony on the judgment of 'Ramji Singh Vs. State of Haryana' 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
"7. 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."
35 Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the 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."
36 PW-4/ HC Jai Prakash is recovery witness in the present case. The same is clear from his deposition and is also reflected in the seizure memo Ex. PW-1/A. He deposed that case property was seized vide seizure memo Ex.PW1/A. Thereafter, endorsement on rukka Ex. PW-1/C was prepared and same was sent through PW-4/HC Jai Prakash for registration of FIR. It is, therefore, clear that the seizure memo of the liquor was prepared at the spot before the rukka was sent to the police station for UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.08.30 17:01:50 +0530 FIR No. 144/2018 State Vs. Jagdish 19 of 21 PS Lodhi Colony registration of the FIR. Now perusal of seizure memo shows that seizure memo do not contain the DD entry number, but it contains the details of present FIR. If recovery was effected from the accused, then contemporaneous entry should have been made on the recovery memo showing all the recovered articles. Contemporaneous entry in recovery memo reflects the sanctity of documents as well as genuineness of the fact that whatever was recovered was entered contemporaneously into the recovery memo. The conduct of IO in not mentioning the DD number on the seizure memo creates some doubt regarding genuineness of recovery proceedings. Further, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo despite the fact that FIR was not registered at the time of recovery proceedings. The same leads to only one inference that either the said document was prepared later or that the FIR was registered at an earlier point of time. In other words, mentioning of FIR number on seizure memo was not contemporaneous with the preparation of seizure memo.
37 It is trite in criminal jurisprudence that the Prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance UMESH Digitally signed by UMESH KUMAR KUMAR 17:01:58 +0530 Date: 2024.08.30 FIR No. 144/2018 State Vs. Jagdish 20 of 21 PS Lodhi Colony of probabilities but proof beyond reasonable doubt, that too on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
38 In light of the above discussion, it can be safely said that Prosecution remained unsuccessful in proving guilt of accused persons beyond all reasonable doubt. Therefore, benefit of doubt is hereby given to accused persons. Accordingly, accused Jagdish is hereby acquitted for charges of commission of offence under Section 33 Delhi Excise Act, 2009.
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.08.30
17:02:07 +0530
Announced in the Open (UMESH KUMAR)
Court on 30.08.2024 JMFC-09/SED/ Saket Courts/
New Delhi/ 30.08.2024
FIR No. 144/2018 State Vs. Jagdish 21 of 21
PS Lodhi Colony