Delhi District Court
State vs . Raju And Ors. Fir No. 297/16 on 2 February, 2022
State vs. Raju and ors. FIR No. 297/16
IN THE COURT OF MS. UDITA JAIN GARG: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURT, DELHI
STATE Vs. RAJU & ORS.
FIR No. 297/16
U/sec. 33/38/52.2 Delhi Excise Act
PS: Mundka
Date of institution of the case: 01.09.2017
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 02.02.2022
JUDGMENT
a) Date of commission of the offence : 30.07.2016
b) Name of the complainant : HC Ajeet Singh
c) Name of the accused and his parentage : 1. Raju @Shashi Kumar S/o Sh. Kishan Lal R/o House No. A-514, Sawda JJ Colony, Ghevra Village, Delhi
2. Bina W/o Raju @ ShashiKumar R/o House no. A-514, Sawda JJ Colony, Ghevra Village, Delhi.
d) Offence complained of or proved : Sec. 33/38/52.2 Delhi Excise Act
e) Plea of the accused : Pleaded not guilty
f) Final order : Acquitted
g) Date of such order : 02.02.2022
Page No.1 of 11
State vs. Raju and ors. FIR No. 297/16
h) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 30 July 2017, Constable Anil Kumar alongwith Constable Dharamvir was patrolling in the area. At about 08:30 p.m., when they reached at Murga Market Road, Lekhram Park Colony, information was received from secret informer that one motorcycle bearing no. DL8SBG7836 Splendour Pro in colour will come from Bahadurgarh, Haryana containing illicit liquor. On receiving this information barricading was done and at 08:35 p.m. one motorcycle reached the spot. After seeing the police officials, its driver and started reversing his bike. He was chased and was caught by the above mentioned police officials. There was a katta (कटट टट) tied to the back seat. Katta was opened and it was found containing bottles of liquor. The accused, on interrogation, disclosed his name as Raju @Shashi s/o Shri Kishan Lal. Constable Anil Kimar informed in the police station about the recovery of illicit liquor. The said information was recorded vide DD Entry No. 27-A at police station Mundka and the same was assigned to the IO for necessary action. Thereafter, Head Constable Mahipal reached at the spot. Constable Anil Kumar and Dharamvir handed over to him the custody of accused and recovered liquor. Thereafter, he checked the katta. It was found containing 180 quarter bottles of ASLI SANTRA MASALEDAR FOR SALE IN HARYANA ONLY. He separated 1 quarter bottle as sample and sealed the remaining quarter bottles with the seal of "MP". Samples bottles were also sealed with the seal of "MP". Case property i.e. illicit liquor was seized vide seizure memo Ex.PW1/A and filled up the Form-29. Seal after use was handed over to Constable Dharamvir. Thereafter, he prepared the rukka and sent the tehrir through Constable Dharamvir to the Police Station on the basis whereof present FIR/Ex. PW3/B was registered against the accused under section 33/38 of the Delhi Excise Act (herein after referred to as the Act). After registration of the FIR, IO prepared the site plan/Ex.PW1/B, recorded the Page No.2 of 11 State vs. Raju and ors. FIR No. 297/16 disclosure statement of the accused, arrested him vide Ex. PW1/C and conducted his personal search vide Ex. PW1/D. Case property was deposited in the Malkhana. The ownership of the vehicle was then verified and it was found to be in the name of Bina w/o Raju. Offence under Sec. 52.2 Delhi Excise Act was then added in the case. The samples were sent to the Excise Laboratory for examination and the result was found to be positive.
After completion of the investigation, charge-sheet was filed before the court. Consequently, the accused were summoned to face the trial. On their 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 and 52.2 Delhi Excise Act (herein after referred to as the Act) was framed against the accused persons, respectively to which they pleaded not guilty and claimed trial.
With a view to connect the accused with the crime, the prosecution has examined as many as seven (7) witnesses.
PW1/Ct. Anil Kumar was the complainant.
PW2/ HC Dharamvir was patrolling in the area along with Ct. Anil Kumar.
PW3/ SI Krishan was the Duty Officer, who had recorded the FIR/EX.PW3/B (OSR) PW4/WHC Geeta accompanied the IO to arrest the co-accused Bina.
PW5/ HC Ajeet, second IO, filed the charge sheet after completion of the investigation.
PW6/ HC Sunil deposited the exhibits/ samples with the excise laboratory.
Page No.3 of 11State vs. Raju and ors. FIR No. 297/16 PW7/ HC Thakur Das was the malkhana incharge who produced register no. 19.
Thereafter, PE was closed and statement of accused under section 313 of the Code was recorded to afford them an opportunity to explain the incriminating circumstances appearing against them in evidence. They 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 Raju 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 also alleged that the accused Bina was also liable for enabling accused Raju in carrying the illicit liquor on the vehicle owned by her. He therefore, prayed that the accused be convicted of the charge levelled against them.
Per contra, it was argued on behalf of the accused that a false case has been foisted against the accused Raju and nothing was recovered from his possession. He submitted that as per the version of the prosecution, the illicit liquor was found in possession of the accused Raju, however, the case property has not been produced to prove the recovery.
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 levelled against him.
Page No.4 of 11State vs. Raju and ors. FIR No. 297/16 Decision and brief reasons for the same Accused Raju is charged for the offence punishable under section 33 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;
(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.Page No.5 of 11
State vs. Raju and ors. FIR No. 297/16 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.
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.
No independent witness was examined despite availability 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 Page No.6 of 11 State vs. Raju and ors. FIR No. 297/16 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 Anil Kumar and PW2/Constable Dharambir testified that they asked the persons passing by to join the proceedings but they refused. When they were questioned if any written notice was served upon those public persons, they answered in negative. As per prosecution, public persons were passing by or were present 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 liquor 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 memo of the liquor was prepared at the spot prior to registration of the FIR. However, this document bearing the number of the FIR. Prosecution has not offered any explanation as to under what circumstances number of the FIR has appeared on the top of this document. Reliance may be placed on a judgment passed by the Hon'ble High Court of Delhi in the case of Page No.7 of 11 State vs. Raju and ors. FIR No. 297/16 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."
Case property not connected/ tampering of seal on samples It was contended by the learned defence counsel that the alleged case property i.e. the liquor bottles were never produced before the court for the purpose of identifi- cation. He, therefore, prayed that an adverse inference should be drawn from the failure to produce the case property which was allegedly recovered from the pos- session 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 dated 15.05.2018. He submitted that as directed by the Hon'ble Superior courts, samples bottles were produced during the course of trial and the said sample bot- tles 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 Page No.8 of 11 State vs. Raju and ors. FIR No. 297/16 Rule 132(2) of Chapter -IX of Delhi Excise Rules, 2010. Relevant part reads as under:
"......be destroyed as per Rule 132(2) of Chapter -IX of Delhi Excise Rules, 2010. However, the samples of con- fiscated liquor are required to be preserved by the Inves- tigating 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 pun-
ishment 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 convic- tion 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 deal-Page No.9 of 11
State vs. Raju and ors. FIR No. 297/16 ing 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 seized 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.
Further, as per prosecution,180 quarter bottles of ASLI SANTRA MASALEDAR FOR SALE IN HARYANA ONLY was recovered from the accused person. He sepa- rated 1 quarter bottle as sample and sealed the remaining quarter bottles with the seal of "MP". The sample bottle was also sealed and seized with the seal of 1 st IO, which was sent to Excise laboratory for examination. During trial, one bottle was produced for the purpose of identification which was found with the seal PK. How and when the seal got changed is a mystery shrouded with doubts which has not been explained by the prosecution.
All these facts taken together create doubt on the entire warp and woof of the Page No.10 of 11 State vs. Raju and ors. FIR No. 297/16 prosecution story regarding recovery of illicit liquor from the possession of accused.
Result On overall appreciation of the oral and documentary evidence on record, this court is of the view that the recovery of alleged liquor from the possession of accused Raju is not proved beyond reasonable doubt; therefore, there is no presumption under section 52 of the Act. Now, since the recovery itself is not proved as above, the accused Bina can also not be held liable for the offence under Sec. 52.2 Delhi Excise Act.
Consequently, accused RAJU @ SHASHI and BINA are ACQUITTED of the crime charged.
File be consigned to record room after due compliance.
Announced in open Court on 02nd day of February, 2022 (Udita Jain Garg) MM-06, West District, Tis Hazari Courts/ Delhi/02.02.2022 This judgment contains 11 pages and each page bears my signature.
(Udita Jain Garg) MM-06, West District, Tis Hazari Courts/ Delhi/02.02.2022 Page No.11 of 11