Delhi District Court
State vs . Pahari @ Guddu Fir No. 579/15 on 21 December, 2019
State vs. Pahari @ Guddu FIR No. 579/15
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURT, DELHI
State vs. Pahari @ Guddu
FIR No. 579/15
U/sec. 33/38 Delhi Excise Act
PS: Mundka
Date of institution of the case: 03.11.2018
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 21.12.2019
Unique I. D. No. 8447/18
JUDGMENT
a) Date of commission of the offence : 10.11.2015
b) Name of the complainant : Constable Gaurav
c) Name of the accused and his parentage : Pahari @ Guddu S/o. Sh. Abbu Mohd.
R/o. H.No.612, Om Prakash Ka Makan SBI wali Gali VPO Mundka, Delhi.
Permanent: Mohalla Ghar Hazar VPO Maner, PS Maner District Panta.
d) Offence complained of or proved : Sec. 33/38 Delhi Excise Act e) Plea of the accused : Pleaded not guilty Page No.1 of 13 State vs. Pahari @ Guddu FIR No. 579/15 f) Final order : Acquitted g) Date of such order : 21.12.2019
h) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 10 November 2015 Constable Gaurav along with Head Constable Suresh and Constable Surender were on picket duty. At about 01:45 p.m., they received secret information that a Champion vehicle loaded with illicit liquor would come from Bahardurgarh side. Therefore, without wasting time, they started checking the vehicles. After some time, the said vehicle came from Bahadurgarh side. Police party checked the vehicle. It was found containing illicit liquor. A DD Entry No. 31-B to this effect was recorded at police station Mundka, which was assigned to Head Constable Manjeet for necessary action. Accordingly, he went to the spot. On search of the car, 68 carton boxes were found loaded in the said vehicle. Out of 68 boxes, 18 boxes were found containing quarter bottles of Asli Santra while remaining boxes were found containing quarter bottles of Impact Whiskey. The case property recovered was seized and converted into pullanda after taking sample of one quarter from each box. On the basis of the aforesaid recovery, the present case FIR was registered against the accused Pahari @ Guddu and investigation was conducted.
After completion of the investigation, charge-sheet was filed before the court. Consequently, the accused was summoned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused as per norms.
Thereafter, charge under section 33/38 Delhi Excise Act (herein after referred to as the Act) was framed against the accused to which he pleaded not guilty and claimed trial.Page No.2 of 13
State vs. Pahari @ Guddu FIR No. 579/15 With a view to connect the accused with the crime, the prosecution has examined as many as six witnesses.
PW1/Constable Gaurav was the complainant, who has set the criminal law into motion.
PW2/Head Constable Surender was recovery witness. PW3/ASI Azad Singh was the Duty Officer, who had recorded the FIR/EX.PW3/B. PW4/ASI Nirmal Singh was the MHC(M).
PW5/Head Constable Manjeet was the 1st IO of the case while PW6/ASI Ramesh was the second IO.
During the course of trial, accused admitted the report of Deputy Chemical Examiner under section 294 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code).
Thereafter, PE was closed and statement of accused under section 313 of the Code was recorded to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. He denied the allegations and pleaded false implication.
I have heard the rival submissions of the learned APP for State and learned defence counsel and perused the material on record very carefully. Arguments It was argued on behalf of the State that prosecution has proved that accused Pahari @ Guddu was found in possession of liquor without any licence. He submitted that in view of section 52 of the Act, onus lies on the accused to rebut the presumption but he failed to rebut the presumption. He therefore, prayed that the accused may be convicted of the charge leveled against him. Per contra, it was argued on behalf of the accused that a false case has been foisted against the accused and nothing was recovered from his possession. He submitted that as per the version of the prosecution, the complainant, who is a Constable, Page No.3 of 13 State vs. Pahari @ Guddu FIR No. 579/15 along with other police officials were patrolling in the area when they apprehended the accused with illicit liquor on the basis of secret information, however, the departure entry regarding the patrolling duty was not proved by the prosecution. Nor the secret informer was examined.
He further submitted that all the prosecution witnesses are interested witnesses and there is no independent corroboration to their statements. In view of the above, he prayed that accused may be acquitted of the charge leveled against him.
Decision and brief reasons for the same Accused Pahari @ Guddu is charged for the offence punishable under section 33/38 of the Act. Section 33 of the Act provides punishment for unlawful import, export, transport, possession, sale etc of any intoxicant. It reads as under:-
Section 33 - 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 licence, permit or pass, granted under this Act-
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or work; any manufactory or warehouse;
(c) bottles any liquor or purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than today or tan;
(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;Page No.4 of 13
State vs. Pahari @ Guddu FIR No. 579/15
(f) sells any intoxicant, collects, possesses or buys any intoxicant 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 but which may extend to one lakh rupees.
It was argued on behalf of the State that since the accused was found in possession of illicit liquor without any licence, the burden rests on him to dispel the statutory presumption raised under section 52 of the Act.
Per contra, it was argued on behalf of the accused that "presumption" can be invoked against the accused only if the prosecution successfully proves the "recovery" beyond reasonable doubt.
Section 52 of the Act provides for presumption as to commission of offence in certain cases. It reads as under:-
52. Presumption as to commission of offence in certain cases. - (1) In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
From a bare reading of section 52 of the Act, it is evident that presumption under section 52 could be drawn only if the factum of recovery is proved beyond reasonable doubt.
Now let us see whether the recovery of illicit liquor is proved by the prosecution beyond a reasonable doubt and whether the presumption of offence alleged to have been committed by the accused would arise in this case.
Non examination of the secrete informer Page No.5 of 13 State vs. Pahari @ Guddu FIR No. 579/15 Foremost contention of the learned counsel for the accused was that that as per prosecution, accused was apprehended with illicit liquor on the basis of secret information; however, the provider of that secret information was not examined as a prosecution witness. Thus, according to the learned defence counsel, prejudice has been caused to the accused by non-examination of the secret informer. In criminal proceedings, it is the obligation of the prosecution to establish a case beyond reasonable doubt against the accused. Where the "narrative" of a given criminal act is not adequately set forth, elements of the offence might not be properly proven, and the prosecution risks losing its case. I am of the considered view that "essential to the . . . narrative" does not mean that all the persons who had witnessed the incident have to be called by the prosecution to prove its case.
In the case in hand, the testimony of the complainant was essential to the unfolding of the narrative and he has been examined by the prosecution as PW1. The secret informer was not cites as a witness and thus he was not called as a prosecution witness. I am of the considered view that a witness who is not called at trial does not offer any evidence against an accused. Secret informer was not the "accuser" in this case. The main witness (the accuser) was the complainant, who has been examined as PW1. The accused had an adequate opportunity to cross-examine him and the other prosecution witnesses. Thus, no prejudice was caused to the accused by non-examination of secret informer.
In view of the above discussion, I find no merit in the submission of the learned defence counsel and thus, the same is rejected.
Departure Entry regarding patrolling in the area not proved As per prosecution, police officials were on picket duty when they apprehended the accused with illicit liquor.
Page No.6 of 13State vs. Pahari @ Guddu FIR No. 579/15 At this stage, it would be advantageous to refer to clause (c) of Rule 22.49 Chapter 22 Punjab Police Rules, as applicable to NCT of Delhi, which reads as under:-
(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.
From the reading of the above mentioned rule, it is evident that all the police officials irrespective of their rank are bound to record their arrival and departure entry at the time of leaving their office.
The Hon'ble Delhi High Court while dealing with a similar situation in the case of Rattan Lal vs. State 32 (1987) DLT 1=1987 (2) Crimes 29 observed as under:
"If the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach, their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive."
In the present case, though both the recovery witnesses have testified that they were on picket duty when they apprehended the accused with illicit liquor. However, no such DD entry is proved by the prosecution to establish that PW1/ Constable Gaurav and PW2/Head Constable Surender were actually present in the area at the relevant time in connection with picket duty. In view of the above, I am of the considered view that the failure by the prosecution to bring on record the DD entries concerning the departure of the police official for picket duty casts a shadow of doubt on the genuineness of prosecution version regarding recovery of illicit liquor from the possession of the accused.
Page No.7 of 13State vs. Pahari @ Guddu FIR No. 579/15 DD Entry No. 31-B not proved
As per prosecution, PW1/Constable Gaurav informed the Duty Officer about the recovery of the illicit liqour. However, the said DD Entry was not proved by the prosecution.
Further, PW3/ASI Azad Singh testified that on 10.11.20915, he was working as Duty Officer and his duty hours were from 02:00 p.m., to 08:00 p.m. However, he has not stated anything about receiving any call regarding recovery of illicit liqour. No independent witness was examined despite availability Further, no independent witness was examined by the prosecution despite availability.
It is settled proposition of law that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency then unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public person was not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in absence of the independent public witnesses.
In Ritesh Chakarvati vs. State 2006(4) RCR (Criminal) 480(SC), no effort was made to join an independent witness despite availability. The names of the persons from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held by the Hon'ble Supreme Court of India that the case of the prosecution was doubtful and ultimately, the accused was acquitted.
The principle of law, laid down in Ritesh Chakarvarti's case (supra) is fully applicable to the instant case.
PW1/Constable Gaurav testified that IO asked 2-3 public persons to join the proceedings but they refused. Per contra, it was stated by another recovery witness Page No.8 of 13 State vs. Pahari @ Guddu FIR No. 579/15 PW2/Head Constable Surender Singh that IO asked 4-5 public persons to join the proceedings but they refused. Similar was the testimony of PW5/IO. When IO was questioned if any written notice was served upon those public persons, he answered in negative.
As per prosecution, public persons were available at the alleged spot of recovery. Yet no witness from the public was associated with the recovery. Thus, failure to join witnesses from the public especially when they are available casts shadow of doubt on the prosecution case regarding recovery of illicit liqour from the possession of accused.
FIR number on the top of the documents which were allegedly prepared prior to registration of the FIR As per the prosecution version, seizure memos of the liquor and vehicle were prepared at the spot prior to registration of the FIR. However, these document bear number of the FIR. Prosecution has not offered any explanation under what circumstances number of the FIR has appeared on the top of these documents. Reliance may be placed on a judgment passed by the Hon'ble High Court of Delhi in the case of Pawan Kumar vs. the Delhi Administration 1989 Crl. L.J 127 wherein it was held as under:
"In the normal circumstances, the FIR number 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 FIR number 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."Page No.9 of 13
State vs. Pahari @ Guddu FIR No. 579/15 Case property not connected
It was contended by the learned defence counsel that the case property i.e. the liquor bottles and the vehicle were never produced before the court for the purpose of identification.
He, therefore, prayed that an adverse inference should be drawn from the failure to produce the case property which was allegedly recovered from the possession of the accused.
In reply, it is submitted by the learned APP for the State that entire case property could not be produced as the same has already been destroyed vide order Mark "X". He submitted that as directed by the Hon'ble Superior courts, samples bottles were produced during the course of trial and the said sample bottles were duly identified by the witnesses.
He also drew the attention of the court towards Mark "X" wherein it is stated that case property has been destroyed as per Rule 132(2) of Chapter -IX of Delhi Excise Rules, 2010. Relevant part reads as under:
"......be disposed off as per Rule 132(2) of Chapter -IX of Delhi Excise Rules, 2010. However, the photo of confiscated vehicle and samples of confiscated liquor are required to be preserved by the Investigating Officer and the SHO of the police station to meet the evidentiary requirements as provided under section 60 of the Delhi Excise Act, 2009..."
Section 60 of the Act provides for destruction of the intoxicants. It reads as under:-
60. Order of confiscation and destruction not to interfere with other punishment (1) The order of confiscation under section 58 shall not prevent imposition of any other punishment to which a person is liable under this Act.
(2) Notwithstanding anything contained in any other law for the time being in force, the disposal of confiscated Page No.10 of 13 State vs. Pahari @ Guddu FIR No. 579/15 goods in the manner, thereby non-production of case property before the trial court, shall not affect the conviction for an offence under this Act:
PROVIDED that the samples of the intoxicants and the photographs of the confiscated property may be preserved to meet the evidentiary requirements. The Hon'ble High Court of Delhi in the case of Manjeet Singh vs. State while dealing with liquor and narcotic drugs, held as under
"74. Prompt action should be taken in disposal of the liquor bottles/pouches and narcotic drugs after preparing a detailed panchnama containing an inventory; retaining a sample thereof; taking photographs of the entire lot of setion not to interfere with other punishment (1) The order of confiscation under section 58 shall not prevent imposition of any other punishment to which a person is liable under this Act.
(2) Notwithstanding anything contained in any other law for the time being in force, the disposal of confiscated goods in the manner, thereby non-production of case property before the trial court, shall not affect the conviction for an offence under this Act:
PROVIDED that the samples of the intoxicants and the photographs of the confiscated ized bottles/pouches/narcotic drugs and security bond. The sample shall be kept properly after sending it to the chemical analyst, if required.
75. The sample along with the photographs of the case property and the panchnama would be sufficient evidence at the stage of trial."
In the case in hand, neither the photographs of the entire lot of seized bottles nor the inventory as directed by the Hon'ble High Court of Delhi in the case of Manjeet Singh (supra) is placed on record. Though the MHC (M) had produced Page No.11 of 13 State vs. Pahari @ Guddu FIR No. 579/15 two photographs along with the order Mark "X" during evidence, however, nothing can be deciphered from the photograph, which is of some kattas' and rear side of the a vehicle which is without number plate.
As per prosecution witnesses, 58 carton box were recovered from the vehicle. The said carton boxes were kept in 13 plastic kattas after taking out the samples. Those sample bottles tied with a piece of cloth and the kattas were sealed with the seal of "MS". However, the sample bottles which were produced during evidence in the court were found sealed with the seal of "PK".
How and when the seal got changed is a mystery shrouded with doubts which has not been explained by the prosecution.
Discrepancy regarding quantity of bottles allegedly recovered from the possession of accused As per prosecution, 68 cartons were recovered from the vehicle. Out of which 18 cartons were found containing 50 quarter bottles and remaining carton boxes were found containing 48 quarter bottles of illicit liqour. Out of 16 boxes, 6 bottles were separated as samples while 20 bottles were taken out from 50 carton boxes. Thus, total, 26 bottles were separated as samples which were later on sent to Excise Control Laboratory for examination. This fact finds corroboration from the report of Excise Laboratory Ex.X1.
Thus, out of total recovered bottles which were 3300, 3274 bottles were directed to be disposed of vide order Mark "X", 26 bottles were consumed by the Excise Control Laboratory while two quarter bottles were produced before the court during evidence. If we add all these bottles, then the total comes to 3302 (3274+26+2) whereas recovered bottles were 3300. This gives rise to presumption that the two (2) samples bottles produced during evidence in the court were not the part of the bottles which were allegedly recovered from the possession of accused, which creates doubts about the veracity of the State's case.
Page No.12 of 13State vs. Pahari @ Guddu FIR No. 579/15 All these facts taken together create doubt on the entire warp and woof of the prosecution story regarding recovery of illicit liquor from the possession of accused.
Result On overall appreciation of the oral and documentary evidence on record, I am of the view that the recovery of alleged liquor from the possession of accused is not proved beyond reasonable doubt; therefore, there is no presumption under section 52 of the Act.
Consequently, accused PAHARI @ GUDDU is ACQUITTED of the crime charged.
File be consigned to record room after due compliance. Announced in open Court on 21st day of December, 2019 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/21.12.2019 This judgment contains 13 pages and each page bears my signature. Digitally signed by BABITA BABITA PUNIYA PUNIYA Date:
2019.12.23 18:31:57 +0530 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/21.12.2019 Page No.13 of 13