Delhi District Court
State vs . 1- Kanta on 31 January, 2023
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 533/16
U/s : 33/38 Delhi Excise Act
P.S. : Ranhola
State Vs. 1- Kanta
2- Pushpa
JUDGMENT:
a) CNR No. : DLWT02-01457-2017
b) Sl. No. of the Case : 6582/17
c) Name & address of the : Raju Chauhan S/o
complainant. Sh. Ramdhari Chauhan,
R/o K-5/94, Part_I, Mohan Garden,
Uttam Nagar, New Delhi.
d) Name & address of : 1- Smt Kanta, W/o Late Sh. Kailash,
accused R/o K-5/32, 33, K-5 Extension,
Near Kali Mata Mandir,
Mohan Garden, New Delhi.
2-Smt.Pushpa W/o Sanjeev Kumar,
R/o K-5/34, K-5 Extension,
Near Kali Mata Mandir,
Mohan Garden, New Delhi.
e) Date of Commission of : 14.07.2016
offence
f) Offence complained off : U/s 33/38 Delhi Excise Act
g) Plea of the accused persons : Pleaded not guilty.
FIR No: 533/16 State v. Kanta & Ors. Page No.1/37
h) Final Order : Both accused persons are Convicted
i) Date of such order : 31.01.2023
j) State Represented by : Sh. Abhishek Pandey, Ld. APP
k) Accused persons : Sh. R.P. Singh, Ld. Counsel
Represented by
Date of Institution : 28.10.2017
Final arguments heard on : 19.01.2023
Judgment Pronounced on : 31.01.2023
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 14.07.2016 at about 10:40 AM in front of H.No. K-5/34, K-5 Extension, Mohan Garden, Delhi, within the jurisdiction of PS Ranhola, both the accused were found in possession of three gatta petties of illicit liquor each containing 48-48 quarter bottles of "NV Besto Whiskey" for sale in Haryana only and one plastic katta containing 90 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only and one plastic katta containing 150 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only without any license or permit. FIR No: 533/16 State v. Kanta & Ors. Page No.2/37
2. After investigation, challan for offence U/s 33/38 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33/38 Delhi Excise Act was framed against both the accused on 13.09.2018, to which they pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined four witnesses.
5. PW-1 Ct. Purushotam, PIS No. 28093329, DAP II Battalion, who deposed that on 14.07.2016, he was posted at PS Ranhola as Ct. On that day, information was received by HC Praveen Kumar regarding apprehension of two females at K-5, Mohan Garden alongwith illicit liquor. On that information he left the PS alongwith HC Praveen Kumar and W/Ct. Savita. The said information was received at 10:30 AM and when they reached at the aforesaid place of recovery, one person/complainant namely Sh. Raju Chauhan met to them and the present accused persons FIR No: 533/16 State v. Kanta & Ors. Page No.3/37 namely Kanta and Pushpa were in his custody. At the same point of time, it was apprised by the complainant that the aforesaid accused persons were putting down three cartons of illicit liquor from rickshaw and when they saw towards the aforesaid residence, it was found that two sacks were lying there. At the spot, the aforesaid three cartons alongwith sacks were opened and the same were found containing liquor bearing mark of "Besto Whiskey" for sale in Haryana only and the sacks were containing "Asli Santara Masaledar Sharab" for sale in Haryana only. From the aforesaid cartons two quarter bottles were taken out as sample while two samples were taken out from each sack. The samples which were taken out from the cartons and sacks were given serial no. 1A to 5A, while the remaining liquor which were placed in the respective cartons and sacks were given serial no. 1 to 5. Each sample was wrapped with a cloth from their bottleneck and then seal was affixed by the IO as "PK". In the same manner, the respective cartons and sacks were fastened with white cloth and they were sealed with the seal of "PK". Seal after use was handed over to him. After completion of aforesaid proceedings the statement of FIR No: 533/16 State v. Kanta & Ors. Page No.4/37 complainant Raju Chauhan was recorded by the IO and on his statement rukka/tehrir was prepared by the IO which was handed over to him for the registration of FIR. Accordingly, he got FIR registered the case and after that he returned at the spot where copy of FIR alongwith original rukka/tehrir were handed over to the IO. In continuation of proceeding, form M-29 was filled by the IO which was already on record and hereby marked as Mark PA/1. Thereafter, the present accused namely Kanta and Pushpa were arrested vide their respective memos which were already on record and hereby exhibited as Ex.PW1/A and Ex.PW1/B respectively. Both the accused persons were personally searched by W/Ct Savita vide memos Ex.PW1/C and Ex.PW1/D respectively. Both the present accused persons were interrogated and their disclosure statement were recorded by the IO which were already on record and thereby marked as Mark P1/2 and Mark P1/3 respectively. The recovered liquor was taken into possession vide seizure memo Ex.PW1/A. The handing over memo of the seal was prepared by the IO which was already on record and thereby marked as Mark P1/4. Both the accused persons were present in the court that day and correctly FIR No: 533/16 State v. Kanta & Ors. Page No.5/37 identified by the witness. After completion of aforesaid proceedings, both the present accused persons were taken to PS where they were put behind the bars after their medical examination and the case property was deposited with MHC(M). in that regard, his statement was recorded by the IO. He could identify the case property, if shown to him.
At that stage, MHC(M) of PS Ranhola produced two sealed quarter bottles duly sealed with the seal of "MS" seals were intact and legible. Both the quarter bottles were opened with the permission of court and the same bearing mark of "Asli Santara Masaledar Sharab" for sale in Haryana only and the "Besto Whiskey" for sale in Haryana only. The said quarter bottles bearing particulars of the present case FIR i.e. F-533/16. The same were shown to the witness and witness correctly identified the same and both the quarter bottles were thereby respectively exhibited as Ex.P1 and Ex.P2.
At that stage, MHC(M) also produced photocopy of confiscation order dated 21.03.2017 alongwith destruction order wherein the particulars of the present case FIR were mentioned as FIR No: 533/16 State v. Kanta & Ors. Page No.6/37 serial no. 66. The said confiscation and destruction orders were attached with certificate under the signature of concerned SHO with certificate u/S 65-B of Indian Evidence Act qua the photographs taken at the time of destruction of seized property of the present case. The said photographs alongwith CD were thereby taken on record and the said documents were collectively thereby marked as Mark P3 (Colly).
At that stage, Ld. APP sought permission to ask leading questions and it was heard and allowed by the court. Witness further deposed that each carton containing 48 quarter bottles bearing mark of "Besto Whiskey" for sale in Haryana only. It was correct that the sacks were containing illicit liquor bearing mark of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only in numbers of 90.
In his cross-examination, whereby witness was recalled u/S 311 Cr.P.C, witness deposed that he left the PS along with HC Praveen at about 10:30 AM along with W/Ct. Savita. He did not remember as to on which vehicle. The distance between the scene of crime and PS was about one and a half kilometer and it FIR No: 533/16 State v. Kanta & Ors. Page No.7/37 took 15 to 20 minutes to reach the spot i.e., the scene of crime. It was correct that the spot i.e., the scene of crime was situated in a street (Gali) and the same was properly residential. Some public persons were there at the spot. IO asked some public persons apart from Raju Chauhan to join the investigation but no one agreed. No written notice was served on them. Raju Chauhan was standing near both the accused. The accused person was not under apprehension or custody of the Raju Chauhan but she was standing along with her. The said public witness Raju Chauhan remained with them till they finally left the spot. He went to PS for registration of the case at about 12:40 PM and came back after an hour. He did not remember by which mode of vehicle he went to the PS. The site plan was prepared by the IO when he went to the PS for registration of the case. IO prepared seizure memo and form M29 before sending rukka. The piece of cloth by which the mouth of the sample was covered was brought from the PS. He could not tell whether it was a piece of cloth or any length of cloth, as same could be told by the IO itself. .It was wrong to suggest that 8 cartons were recovered from the accused person as stated by Ram Naval Chauhan, and FIR No: 533/16 State v. Kanta & Ors. Page No.8/37 there were only 3 cartons and 2 sacks. It was wrong to suggest that no 3 cartons and 2 sacks were recovered from the accused persons. The arrest memo was prepared at about 02:15 PM. The seal was handed over to him before preparation of rukka and the same was deposited in the Maal Khana on the same day. He did not remember the time when we left the spot finally. He did not remember by which mode of transport were the accused persons and the case property was take to the PS. No number was given on the remaining bottles which were put in the respective cartons and sacks. It was wrong to suggest that nothing was recovered from the accused person. It was wrong to suggest that he was deposing falsely
6. PW-2 Ram Naval Chauhan @Raju Chauhan S/o Sh.
Ram Dhari, who deposed that on that day, he did not remember the exact date and month of the recovery in question but the same was taken effect in the year of 2016. He was running a business at D-129, Fateh Nagar, Jail Road. His house i.e. K-5/94 was situated nearby the place of recovery and on the date of recovery at about 10:30 AM, he was present at his aforesaid address alongwith his FIR No: 533/16 State v. Kanta & Ors. Page No.9/37 family members. Before the present case recovery, the present accused persons namely Kanta and Pushpa were directed that not to sale the illicit liquor in the locality. The present accused persons were directed also by some other local residents but both the present accused persons did not pay heed to our direction or advise.
On the date of recovery, he alongwith other local residents advised/objected to accused Pushpa that not to sale the illicit liquor in locality as due to that reason some bad elements used to come in the street due to which all were suffering but accused Pushpa started to abuse him and also to other local residents and in the meantime, he called at 100 number on which the police official came at the spot but the present accused Pushpa also started to abuse them upon which other police staff member including lady police was called at the spot and then the premises of the present accused was searched where from illicit liquor was recovered in the manner that 8 cartons were found inside her premises and at the same time it also revealed that accused Kanta was also having in her possession illicit liquor which was kept by her FIR No: 533/16 State v. Kanta & Ors. Page No.10/37 in the sacks and then the police official taken into possession all the cartons alongwith sacks recovered from present accused persons. Both the accused persons were present in the court that day and correctly identified by the witness. After recovery of liquor from the possession of present accused persons, the same were taken into possession by the police in his presence and in continuation of proceedings the present accused persons were arrested vide arrest memos already Ex.PW1/A and Ex.PW1/B respectively. In the PS, he had signed the aforesaid documents after recording his statement which was already on record and thereby exhibited as Ex.PW2/A. The site plan was also prepared by the IO in his presence which was already on record and thereby exhibited as Ex.PW2/B. At that stage, Ld. APP sought permission to ask leading questions and it was heard and allowed by the court.
Upon asking leading questions, witness deposed that it was correct that he had signed his statement Ex.PW2/A after reading the contents of the same. It was incorrect that he had stated to the police in his statement Ex.PW2/A that only three cartons alongwith two sack were recovered. Vol. He had stated to FIR No: 533/16 State v. Kanta & Ors. Page No.11/37 the police that 8 cartons were recovered but the police official did not pay heed to his statement and stated that "case to itni paitiyo me bhi utna hi banega aur 8 m bhi utna hi". It was wrong to suggest that he had stated to the police that eight cartons were recovered. It was correct that the recovered illicit liquor was taken into possession by the police in his presence. At that stage, the attention of witness was withdrawn on the seizure memo Ex.PW1/E, whereupon witness admitted his signature at point "B". It was correct that the date of incident was 14.07.2019. it was incorrect that he had told to the police officials that on the date of incident at H.No. K-5/34 Mohan Garden, Delhi, when he was crossing the said house, he saw one rickshaw, which was carrying some cartons of liquor and the same were taken off in front of the abovesaid house.
At that stage, Ld. APP for the state sought permission from the court to cross-examine the witness as he had turned hostile. It was heard and allowed by the court.
In his cross-examination by Ld. APP for the State, witness deposed that it was wrong to suggest that on the date of incident, both the accused ladies were helping in taking off the FIR No: 533/16 State v. Kanta & Ors. Page No.12/37 cartons of the illicit liquor and were also taking the said cartons in their houses. It was wrong to suggest that when the police officials arrived and checked the house of accused ladies the three cartons of illicit liquor and two plastic kattas of white colour containing illicit liquor were recovered from the house of the accused. It was wrong to suggest that he was being won over by the accused persons and not deposing correctly. It was wrong to suggest that he was deposing falsely.
In his cross examination, whereby he was recalled u/s 311 Cr.P.C. witness deposed that the distance between his and house of accused person Pushpa was about 20-25 mtr and it was about 4-5 houses away from his house in the same line. The distance between his and house of accused person Kanta was about 50mtr and it was about 10 houses away from his house in the same line. Accused persons are living there since 1990. The distance between his residence and his shop was about 6 KM. On the date of incident he did not go to shop and remained at his house. On the date of incident he along with his family member was at his residence. It was wrong to suggest that at the time of incident illicit FIR No: 533/16 State v. Kanta & Ors. Page No.13/37 liquor was being taken off from the rickshaw. Vol. It was already in the house of accused person Pushpa. Illicit liquor was also found from the house of Kanta. He dialed the 100 number around between 9:30 AM to 10:00 AM and the police reached around 15 minutes. The police including PCR van reached in front of house of accused Pushpa. He had seen in the previous night, accused Pushpa was unloading illicit liquor and keeping them in her house. There were 8 cartons. Time was around 3.00-3:30 AM . He watched the same fact for about 10-15 minutes. He did not call the PCR at the time when the illicit liquor was being unloaded and being kept in the house of Pushpa. Many local resident were also present there at the time of unloading and keeping of illicit liquor. The local resident who witnessed the same were of the same locality where he and accused persons used to reside. The name of some local residents were Bijender, Raja, Sanjay Kanojia. None of them dialed 100 number in his presence. The unloading was in the house of accused Pushpa at that time and not in the house of Kanta. Vol. The illicit liquor was already in the house of accused Kanta. He along with local residents remained collected there for about 10 minutes. FIR No: 533/16 State v. Kanta & Ors. Page No.14/37 While unloading, family members of Pushpa were present in the house. The unloading was done from the vehicle make of wagonr and again kept on a motorcycle after which it was kept in house of Pushpa. It was dark. He did not note Reg. no. of wagonr and the motorcycle. Vol. The vehicle wagonr and motorcycle were without number plates. He did not know as to who was driving the wagonr and how many passengers were there in. He could not tell at what distance did the wagonr stopped at. He did not see what was inside the wagonr. He saw the motorcycle after the wagonr but he could not tell from which house did it come and who was driving it or who was the pillion rider. It was correct that the rider and pillion rider of motorcycle did not belong to house of accused Pushpa and Kanta. All that happened around 3:45 AM at which unloading was done. All the local residents whom he had named above also witnessed incident of unloading illicit liquor. He had named only few local residents as above whom he remember at present. However, other local residents also witnessed the same. The whole incident of unloading from wagonr, loading on motorcycle and again unloading in house of Pushpa took around 5 minutes. No local resident did call FIR No: 533/16 State v. Kanta & Ors. Page No.15/37 100 number during the interval of loading unloading from wagonr till the house of accused Pushpa. At the time while he was dialing 100 number to inform police about the illicit liquor he did not check in the house about the illicit liquor. Vol. Before dialing at 100 he had already seen previous night at about 3:30 AM the accused person Pushpa keeping the illicit liquor in her house. He had requested Pushpa to abstain from such activities in the area and when she refused his request and started abusing him, he dialed 100 number. When he was making request to Pushpa, her children were inside her house. He and other local residents requested her to abstain from such activity at about 9:00 AM. Our request and her not paying heed to it went for about half an hour. There were around 20 persons including him in the local residents. The PCR was called about 9:40-45 AM and it came after around 10-15 minutes. After further 10-15 minutes local police also reached there. 12-13 police persons reached at the spot and some of them were on motorcycle and some of them including additional SHO Om Prakash in a gypsy. It was correct that additional SHO Om Prakash was also present at the time of recovery. Vol. He did not remember exact designation of FIR No: 533/16 State v. Kanta & Ors. Page No.16/37 Sh. Om Prakash nor he remembers the exact name. The recovery was made one after the other from the house of accused Pushpa and Kanta. He was present during recovery of illicit liquor at both the places. The PCR van remained at the spot for about 5-6 minutes. In the meanwhile vehicle of police station had arrived at spot. Nothing was recovered while the PCR remained at the spot. It was correct that till the staff of police station remained at the spot no women staff was with them. He did not remember what documents were the police officials preparing at the house of accused Pushpa when illicit liquor was found from her house. After the women staff came the police recovered the illicit liquor. He did not remember whether police have entered the house of accused Pushpa before the arrival of women staff. He did not know the name of women staff who reached at the spot nor could he tell as to how many women staff reached there. He did not remember by which vehicle did the women staff reached at the spot. After leaving of the PCR, in about 20 minutes the whole staff including the women one was present at the spot. The police remained at the house of accused Pushpa for about 2-3 minutes and within that time the case FIR No: 533/16 State v. Kanta & Ors. Page No.17/37 property recovered from accused Pushpa was kept in the gypsy. At that time several local residents were also present. Thereafter the police staff including the women one went to the house of Kanta. He was also present there. He did not remember as to whether any member was present in the house of accused Kanta. Police remained at the house of accused Kanta for about 10-15 minutes. He did not remember exact number of illicit liquor found in the house of accused Kanta. Police did not counted the no. of illicit liquor in his presence nor in the presence of local residents. He did not remember as to what documents police was preparing while they were in house of Kanta. Vol. It is they who were preparing, not him. It was the same gypsy in which the case property recovered from Kanta was kept. Thereafter police left for the PS along with the case property kept in the gypsy. The accused persons were also taken by them. He signed certain documents at the spot itself. As far as he remember he signed one document at the spot. He signed certain documents in the PS also and he did not know about others. The police did not came to the spot again in his presence after it left with the recovered case property. It was wrong to suggest that illicit FIR No: 533/16 State v. Kanta & Ors. Page No.18/37 liquor belong to him and he kept these in the houses of accused persons to falsely implicate them and saved himself from legal punishment.
7. PW-3 ASI Praveen Kumar, No. 1141/PCR, is the IO in the present case, who deposed that on 14.07.2016, he was posted at PS Ranhola as HC. On that day, he received DD entry No. 27-A dated 14.07.2016 regarding apprehension of the accused alongwith illicit liquor and the copy of the same was marked as mark 3/A on that information, he reached at the spot i.e. K-5/34, K-5 Extension, Mohan Garden, Delhi, where he met with Ct. Purshottam and W/Ct. Savita, who handed over him the custody of accused persons and recovered illicit liquor. He made inquiry from the accused persons who revealed her name as Kanta and Pushpa, (accused Pushpa was present in the court and correctly identified by the witness and Kanta was exempted and her identity was not disputed by her Ld. Counsel). He checked the recovered three gatta petties which were found containing illicit liquor and on counting 48-48 quarter bottles of 180 ML each of N.V. Besto for sale in Haryana were there and the FIR No: 533/16 State v. Kanta & Ors. Page No.19/37 total number of the said quarter bottles were 144. he also checked the recovered two white colour kattas which were found containing illicit liquor and on counting the first katta was found containing 150 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana were there and the second katta was found containing 90 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana and the total number of said quarter bottles were 240. He also met with complainant namely Raju Chauhan, who was also present at the spot. He asked around 4-5 public persons to join the investigation of the present case but all of them refused and left the spot without disclosing their names and addresses and due to the urgency of the matter, no legal notice could be served upon them. Thereafter, he put the recovered quarter bottles in the said gatta petties and the kattas and sealed the mouth of the gatta petties with the help of one white cloth and used the seal of "PK". The recovered quarter bottles of illicit liquor were also kept in above said recovered kattas and the mouth of the same were sealed with the seal of "PK". He kept 1-1 sample bottle out of the recovered quarter bottles of illicit liquor and sealed the mouth of all the FIR No: 533/16 State v. Kanta & Ors. Page No.20/37 samples with the seal of "PK". Thereafter, he prepared the seizure memo of the recovered illicit liquor which was already Ex.PW1/E and also prepared form M-29, which was already marked as Mark-PA/1 and then Ex.PW3/A. He prepared the site plan at the instance of complainant Raju Chauhan already Ex.PW2/B. Thereafter, he recorded the statement of complainant vide Ex.PW2/A. Thereafter, he prepared the rukka which was Ex.PW3/B and handed over the same to Ct. Purushottam to get the FIR lodged from PS Ranhola. As per his directions, Ct. Purushottam went to PS Ranhola and after some time he returned alongwith the copy of FIR which was marked as Mark 3/B and the original rukka and FIR was handed over to him. He arrested the accused persons with the help of W/Ct. Savita vide memos already Ex.PW1/A and Ex.PW1/B and conducted personal search of accused persons vide memo already Ex.PW1/C and Ex.PW1/D. He also recorded the disclosure statement of accused persons vide already Mark P1/2 and Mark P1/3 and then Ex.PW3/C and Ex.PW3/D. Thereafter, accused and case property were brought to the PS and the case property was deposited in the safe custody of MHC(M). Accused persons were got medically examined and FIR No: 533/16 State v. Kanta & Ors. Page No.21/37 thereafter produced before the concerned court where they were sent to JC. During the course of investigation, he sent the sample to Excise Control Laboratory vide road certificate and the copy of the same was Mark 3/C. Thereafter, he got transferred and the file was handed over to MHC(R).
He could also identify the case property, if shown to him. The case property was already exhibited in the testimony of Ex.P1, Ex.P2 and Ex.P3.
In his cross-examination he deposed that the spot was surrounded by residential units. He prepared seizure memo, form M-29 , handing over memo before sending rukka. Ct. Purushottam went to PS at about 12:40 PM and he came back at about 01:40 PM. During that period, he prepared site plan. He had not made any addition or alteration before sending rukka. The seal was given back to him on the next day of incident. No memo was prepared in that regard. Accused was arrested at about 02:20 PM. He finally left the spot at about 03:40 PM. The case property was brought to PS in private hired vehicle i.e. gypsy. He could tell the registration number of the said gypsy, nor its driver's name nor he had been FIR No: 533/16 State v. Kanta & Ors. Page No.22/37 cited as witness in the present case. No specific number was given on the quarter bottles which were kept back in their respective petties and kattas. It was wrong to suggest that the investigation of the present case was not properly conducted by him or that he never visited the spot or that the accused was falsely implicated in the present case or that any recovery was effected from the possession of the accused or that signatures of accused taken forcibly on semi printed and blank papers and later on converted into different documents to make out a false case against the accused or that all the written work was done while sitting in the PS. It was wrong to suggest that he was deposing falsely.
8. PW-4 Ex. ASI Subey Singh R/o Village and Post Jurina, Distt Jhunjunu, Rajasthan, who deposed that in the month of September, 2016, he was posted at PS Ranhola as ASI. In the said month, he received the investigation of present case. He prepared the challan and filed the same before the court.
In his cross-examination, witness deposed that it was wrong to suggest that he did not conducted fair investigation or FIR No: 533/16 State v. Kanta & Ors. Page No.23/37 that he prepared false charge-sheet against the accused persons.
9. After completion of prosecution evidence, all the incriminating evidence was put to accused persons U/s 313 Cr.P.C and their explanation were recorded, wherein they denied all the incriminating evidence against them and claimed to have been falsely implicated and case property planted upon them. Accused persons chose not to lead DE.
10. The accused persons admitted Certificate 65-B, DD No. 52-B dated 14.07.2016, Chemical Examiner report, Statement of W/Ct. Savita and Ct. Ashok vide Ex.A-1 to Ex.A-5 u/s 294 Cr.P.C respectively.
11. I have heard Ld. APP for the State, Ld. Counsel for accused persons and have carefully gone through the material on record.
12. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable FIR No: 533/16 State v. Kanta & Ors. Page No.24/37 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. 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.
13. In the considered opinion of this Court, as a cumulative effect of the following reasons, both accused Kanta and accused Pushpa are liable to be convicted for the charge as the prosecution has been able to successfully discharge its burden of proof beyond reasonable doubt.
14. The allegations of the prosecution upon the accused FIR No: 533/16 State v. Kanta & Ors. Page No.25/37 persons are that on 14.07.2016 at about 10:40 AM in front of H.No. K-5/34, K-5 Extension, Mohan Garden, Delhi, within the jurisdiction of PS Ranhola, both the accused were found in possession of three gatta petties of illicit liquor each containing 48-48 quarter bottles of "NV Besto Whiskey" for sale in Haryana only and one plastic katta containing 90 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only and one plastic katta containing 150 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only without any license or permit. The total quantity of illicit liquor found in possession of the accused persons as per seizure memo Ex.PW1/E will be around 69.12 litres because the quantity in one bottle was approximately 180 ML as per excise result Ex.A3. Therefore, as per the prosecution case, accused persons were found in possession of 69.12 litres of illicit liquor at the time when they were apprehended by public person PW2, who on the date of recovery of illicit liquor had objected to the sale of illicit liquor in the locality as it was attracting bad elements and had requested accused persons Pushpa and Kanta not to sale liquor in the locality but when the accused persons did not pay heed and FIR No: 533/16 State v. Kanta & Ors. Page No.26/37 accused Pushpa started abusing PW2 and other residents, PW2 called 100 number upon which police officials came at the spot and apprehended the accused persons Pushpa and Kanta and illicit liquors was recovered from the possession of the accused persons. PW3, who is the IO in the case deposed that the recovered illicit liquor comprised three gatta petties of illicit liquor each containing 48-48 quarter bottles of "NV Besto Whiskey" for sale in Haryana only and one plastic katta containing 90 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only and one plastic katta containing 150 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only upon which he put the recovered quarter bottles in the said gatta petties and the kattas and sealed the mouth of the gatta petties with the help of one white cloth and used the seal of "PK". The recovered quarter bottles of illicit liquor were also kept in above said recovered kattas and the mouth of the same were sealed with the seal of "PK". He kept 1-1 sample bottle out of the recovered quarter bottles of illicit liquor and sealed the mouth of all the samples with the seal of "PK". Thereafter, he prepared the seizure memo of the recovered illicit FIR No: 533/16 State v. Kanta & Ors. Page No.27/37 liquor which was already Ex.PW1/E and also prepared form M-29, which was already marked as Mark-PA/1 and then Ex.PW3/A. He prepared the site plan at the instance of complainant Raju Chauhan already Ex.PW2/B. Thereafter, he recorded the statement of complainant vide Ex.PW2/A. Thereafter, he prepared the rukka which was Ex.PW3/B and handed over the same to Ct. Purushottam to get the FIR lodged from PS Ranhola. As per his directions, Ct. Purushottam went to PS Ranhola and after some time he returned alongwith the copy of FIR which was marked as Mark 3/B and the original rukka and FIR was handed over to him. He arrested the accused persons with the help of W/Ct. Savita vide memos already Ex.PW1/A and Ex.PW1/B and conducted personal search of accused persons vide memo already Ex.PW1/C and Ex.PW1/D. He also recorded the disclosure statement of accused persons vide already Mark P1/2 and Mark P1/3 and then Ex.PW3/C and Ex.PW3/D. Thereafter, accused and case property were brought to the PS and the case property was deposited in the safe custody of MHC(M). Accused persons were got medically examined and thereafter produced before the concerned court where they were sent to JC. FIR No: 533/16 State v. Kanta & Ors. Page No.28/37 During the course of investigation, he sent the sample to Excise Control Laboratory vide road certificate and the copy of the same was Mark 3/C. Thereafter, he got transferred and the file was handed over to MHC(R). PW1 has also deposed that on the date of incident PW2, who is a public person met him and woman Constable Savita and presented the accused persons Kanta and Pushpa, who were having possession of illicit liquor. In the considered opinion of this Court, PW2 who is a public person alongwith the police officials PW1 and PW3 are the best witnesses to describe the possession and recovery. There is no reason why they would frame innocent persons in such a serious offence which they have alleged completely knowing its implications without any previous enmity with the accused persons. Further, it is categorically stated by PW2 that he requested the accused persons to abstain from selling illicit liquor in the locality. It is admitted that PW2 is a neighbour of accused persons, who are residing nearby his house. There is no suggestion in the cross examination of these witnesses or in the examination of accused persons u/s 313 Cr.PC regarding any "motive" of false implication on behalf of complainant or any FIR No: 533/16 State v. Kanta & Ors. Page No.29/37 enmity with the complainant. The bald suggestion given to PW2 in his cross-examination that PW2 was the owner of illicit liquor who had kept it in the house of the accused persons to falsely implicate them and save himself from legal punishment in my view does not discredit the testimony of PW2 as the same is categorical, cogent and logical in the narration of the events, which transpired leading to the apprehension of the accused persons with illicit liquor. Since the witness PW2, who is a public person shared the information with the police upon which instance the police officials PW1 and PW3 themselves have apprehended the accused persons, it would require very convincing submissions to discard the evidence of the these witnesses when the story propounded by them seems to be most probable. It is not the case of the accused persons that they were not present at the spot of incident nor they pleaded any kind of alibi in this case. The testimony of the witnesses does not appears to be embellished or embroidered in respect of the offence committed nor could be impeached in their cross examination. In the present case, therefore the occurrence of the offence is proved by the witnesses against the accused persons and there is no good FIR No: 533/16 State v. Kanta & Ors. Page No.30/37 reason to discard their testimony which is found to be consistent and reliable and also inspires confidence. In my view, the testimony of PW2 regarding recovery of 8 cartons of illicit liquor does not discredit his testimony due to the fact that he did not personally examine the 5 cartons, which were seized by the police and who prepared the seizure memo. The FIR was promptly registered and there was no opportunity to the complainant to embellish or falsely implicate the accused persons. Testimonies of all the witnesses are corroborated in material particulars with each other. The witnesses has been duly cross examined but still there is nothing in there testimony to impeach their credit. All of them have categorically deposed the place and the manner in which the liquor was recovered and therefore I am of the view that the testimonies, of these witnesses inspires confidence and the probative force in their testimony is so strong so as to convict the accused persons.
15. It is pertinent to discuss the offences with which the accused persons Kanta and Pushpa are charged. The accused persons are charged with two offences ie. U/s 33/38 Delhi Excise Act 2009. FIR No: 533/16 State v. Kanta & Ors. Page No.31/37
16. Section 33 reads as under: Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any license, permit or pass, granted under this Act.
(a) manufacture, imports, exports, transports or removes any intoxicant
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purpose warehouse
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant, collects, possesses or buys any intoxicant other than toddy or taari;
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant FIR No: 533/16 State v. Kanta & Ors. Page No.32/37 beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees.
In clause 'f' if person contravenes the provisions of this Act or any rule under this law, he will commit an offence U/s 33 of Delhi Excise Act. Delhi Excise Rules 2010 under Rule 20 prescribed the maximum limit of retail liquor an individual can possess. The maximum quantity of Indian liquor(whiskey in the present case) for the purpose of Delhi Excise Act which can be possessed by individual can be 9 litres. It means that by possessing 3 gatta petties containing 48-48 quarter bottles each of "NV Besto Whiskey" for Sale in Haryana only ( 48x3x180 = 25.92 litres) and two plastic katta, out of which first plastic katta was containing 90 quarter bottles of illicit liquor of "Asli Santra Masaledar Deshi Sharab" for sale in Haryana only ( 90x180 = 16.2 litres) and second plastic katta was containing 150 quarter bottles of illicit liquor of "Asli Santra Masaledar Deshi Sharab for sale in Haryana FIR No: 533/16 State v. Kanta & Ors. Page No.33/37 only ( 150x180 = 27 litres), the accused persons were possessing a cumulative quantity of 69.12 litres of illicit liquor.
17. Accused persons in present case violated the provisions of this Act because the accused could lawfully only have possessed upto 9 litres of the liquor, in view of the Delhi Excise Rules 2010. Therefore this rule has been violated and accused has committed an offence U/s 33 (f) of Delhi Excise Act by possessing 69.12 litres of illicit liquor. Therefore, the possession of illicit liquor by the accused persons beyond permissible limits is proved and therefore commission of offence under section 33 Excise Act has been proved.
18. The other offence with which the accused persons are charged is section 38 Delhi Excise Act. Section 38 reads as under:
Whoever has in his possession any liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six FIR No: 533/16 State v. Kanta & Ors. Page No.34/37 months and fine which may extend to one lakh rupees.
19. It has clearly come on record that the whiskey bottles which the accused persons were carrying for sale in Haryana only which means that no prescribed duty was paid in respect of the case property to state of Delhi. There is no suggestion by Ld. defence counsel in the cross examination of these witnesses that these liquor bottles were not for sale in Haryana only. It has been categorically proved that by carrying liquor bottles for sale in Haryana only the accused persons have committed an offence u/s 38 of Delhi Excise Act, 2009.
20. Ld. Counsel for the accused persons vehemently iterated that PW2, who is an independent witness stated in his deposition that 8 gatta pettis of illicit liquor were recovered but the police only showed 5 cartons of illicit liquor in the seizure memo Ex.PW1/E and police told PW2 that " itni petio mein bhi utna hi case banega aur 8 mein bhi utna hi." It is seen that the alleged offence took place on 14.07.2016, whereas testimony of PW2 was recorded on 05.02.2019 FIR No: 533/16 State v. Kanta & Ors. Page No.35/37 i.e. after almost 2 and half years which may have clouded the memory of the witness, since the seizure memo Ex.PW1/E mentions the signatures of the witness PW2 at point "B" and shows that five cartons of illicit liquor were recovered from the accused persons. In my view, even if the contention of the Ld. Counsel for the accused persons is accepted that there were 8 cartons and not five cartons, however, still testimony of PW2 is consistent to the extent of the recovery of the illicit liquor from the accused persons, which in my view does not wholly discredit or creates disbelief in the testimony of PW2. It is settled law that prosecution case is not to be discarded merely due to some inconsistencies in the testimony of the witnesses as they are prone to give some exaggerated account in order to appear convincing, however, considering the entire evidence available on record and presented by the prosecution as well as the bald defence of false implication taken by the accused persons, the case of the prosecution is proved beyond reasonable doubt qua the charged offences.
21. Keeping in view the aforesaid facts and circumstances of the FIR No: 533/16 State v. Kanta & Ors. Page No.36/37 present case and the evidence produced on record, it is held that the prosecution has successfully proved the alleged offences under Section 33/38 Delhi Excise Act against both the accused Kanta and accused Pushpa beyond reasonable doubt. Accordingly, both the accused Kanta and accused Pushpa are hereby convicted under Section 33/38 Delhi Excise Act,2009.
22. A copy of this judgment is supplied free of cost to the convicts.
23. Let the convicts be heard on the point of sentence for 07.02.2023.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 31st day of January, 2023 31.01.2023
FIR No: 533/16 State v. Kanta & Ors. Page No.37/37