Delhi District Court
State vs Bhimi on 28 September, 2024
IN THE COURT OF SH. AVIRAL SHUKLA, JUDICIAL MAGISTRATE
FIRST CLASS-05, SOUTH DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
CNR No. DLST02-038406-2019
IN THE MATTER OF:
STATE Vs. BHIMI
FIR no. 272/2019
PS MEHRAULI
U/s 33 Delhi Excise Act
JUDGMENT
A) Sl. No. of the case : CR No. 4329/2019
B) The date of commission of : 09.05.2019
offence
C) The name of the complainant : HC Virender Singh, No. 928/SD, PS
Mehrauli, New Delhi.
D) The name and address of accused : Bhimi, W/o Sh. Dashrath, R/o H. No.
Jhuggi near Qutub Minar Bus Stop,
Umeed Aman Ghar, New Delhi.
E) Offence complained of : 33 of the Delhi Excise Act, 2009.
F) The plea of accused : Not Guilty
G) Final Order : Acquittal
H) The date of such Order : 28.09.2024
DATE OF INSTITUTION : 30.08.2019
DATE OF FINAL ARGUMENTS : 26.09.2024
DATE OF JUDGMENT : 28.09.2024
FIR No.272/2019 PS Mehrauli Page No.1 of 12
Digitally signed
AVIRAL by AVIRAL
SHUKLA
SHUKLA Date: 2024.09.28
16:53:04 +0530
BRIEF FACTS
1. The present case has originated from the charge-sheet filed by the State under Section 33 of the Delhi Excise Act, 2009, against accused Bhimi, W/o Sh. Dashrath. As per the charge-sheet, on 09.05.2019 at around 10:05 AM near Jhuggi, Near Ladosarai, in front of CNG pump, Chhattarpur, New Delhi i.e. within the jurisdiction of PS Mehrauli, accused was found in possession of 144 quarter bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only measuring 180 ml each and kept these illicit liquors without having any license / permit and thereby committed an offence punishable under Section 33 of the Delhi Excise Act.
2. On the basis of the charge-sheet, the Court took cognizance of the offence on 30.08.2019 and was supplied with copy of chargesheet and documents in compliance of Section 207 Cr.P.C on 26.09.2022. Court framed the charge against the accused for offence punishable under Section 33 of Delhi Excise Act. Charge was read over and explained to him to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. In order to prove its case, the prosecution has examined the following three witnesses:
(i) PW1 was ASI Asha Rani;
(ii) PW2 was ASI Virender;
(iii) PW3 was ASI HC Anil;
(iv) PW4 was Ct. Naresh Kumar; and
FIR No.272/2019 PS Mehrauli Page No.2 of 12
Digitally signed
AVIRAL by AVIRAL
SHUKLA
SHUKLA Date: 2024.09.28
16:53:10 +0530
(v) PW5 was ASI Rajeev Sharma.
4. PW-1 ASI Asha Rani deposed that on 09.05.2019, she was posted at PS Mehrauli as HC. On that day, she alongwith HC Virender and Ct. Naresh were on patrolling duty. A secret informer had informed HC Virender that a lady is carrying illicit liquor near Lado Sarai, opposite CNG pump and she could be caught in possession of such illicit liquor. HC Virender informed the same to the SHO who gave further directions to immediately raid and seize the said illicit liquor. She further deposed that they made efforts to join public persons to be the part of the raiding party but none of them joined citing their personal difficulty. She further deposed that they alongwith the secret informer reached at jhuggi near Lado Sarai where the secret informer pointed out towards that lady and told that she was the same lady who was carrying illicit liquor. PW ASI Asha Rani apprehended that lady and found one gatta peti in her possession.
5. PW-1 ASI Asha further deposed that she made further search and found that there were two more gatta pettis inside the jhuggi. On checking all the three pettis, they found total 144 quarter bottles of Asli Masaledar Desi Sharab for sale in Haryana only. Out of 144 quarter bottles, one quarter bottle was taken as a sample and the same was covered in a pulanda that was marked as Mark A. She deposed that rest of the quarter bottles i.e. 143 were marked as Mark B. Thereafter, all the gatta pettis were put in a white katta, sealed with the seal of 'RK' and seized vide seizure memo Ex.PW1/A. Thereafter the seal was handed over to Ct. Naresh Kumar and form M-29 was filled. The seal handing over memo was prepared vide Ex.PW1/B. She further deposed that HC Virender prepared rukka and handed over FIR No.272/2019 PS Mehrauli Page No.3 of 12 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA 16:53:16 Date: 2024.09.28 +0530 the same to Ct. Naresh Kumar for registration of FIR. After registration of FIR, Ct. Naresh Kumar alongwith HC Rajiv came at the spot. HC Virender had handed over the custody of accused and the case property to HC Rajiv. PW-1 ASI Asha Rani further deposed that HC Rajiv prepared the site plan. Thereafter, HC Rajiv arrested the accused vide arrest memo Ex.PW1/C and personally searched the accused vide memo Ex.PW1/D. The disclosure statement of accused was recorded vide memo Ex.PW1/E. Thereafter, the medical examination of the accused was got conducted by her and the accused was produced before the Court. PW-1 ASI Asha Rani correctly identified the accused in the court. She was duly cross examined by Ld. defence counsel.
6. PW-2 ASI Virender also deposed on the similar lines as deposed by PW-1 ASI Asha Rani as she along-with ASI Virender were on patrolling duty. PW-2 correctly identified the accused in the court. He was duly cross examined by Ld. defence counsel.
7. PW-3 HC Anil deposed that on 17.05.2019, he had gone to the Delhi Excise Laboratory, ITO to submit the sample received in the present matter for the purpose of their examination. He deposed that he was sent by MHC (M) to submit the sample. Thereafter, he handed over the receiving copy of Road Certificate to MHC (M). He was duly cross examined by Ld. defence counsel.
8. PW-4 Ct. Naresh Kumar also deposed on the similar lines as deposed by PW- 1 ASI Asha Rani as she along-with Ct. Narender were on patrolling duty. PW-4 correctly identified the accused in the court. He was duly cross examined by Ld. FIR No.272/2019 PS Mehrauli Page No.4 of 12 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA 16:53:21 Date: 2024.09.28 +0530 defence counsel.
9. PW-5 ASI Rajeev Sharma deposed that on 09.05.2019, he was posted at PS Mehrauli as HC and on that day, he was on patrolling duty. Thereafter, DO informed him that the present FIR was marked on his name for further investigation. He further deposed that Ct. Naresh handed over the copy of FIR and original tehrir to him. PW-5 further deposed that he along with Ct. Naresh reached at the spot i.e. Jhuggi, located opposite to CNG Pump, Lado Sarai red light. Thereafter, he met W/HC Asha and HC Virender there. HC Virender handed over a plastic sack stating that the same was recovered from possession of accused Bhimi. PW-5 further deposed that the accused was handed over to him. Thereafter, he checked the sack and found illicit liquor in quarter bottles. Accused was enquired by him and she had disclosed her name as Bhimi, W/o Dashrath.
10. PW-5 ASI Rajeev Sharma further deposed that the quarter bottles were counted and there were total 144 quarter bottles having label of 'Asli Santra masaledar desi sharab for sale in Haryana only'. One quarter bottle was separated for sample purpose and remaining were kept in same sack. The seizure memo, M29 form and seal handing over memo was handed over to him by HC Virender. Thereafter, he prepared the site plan at the instance of W/HC Asha and Ct. Naresh. PW-5 ASI Rajeev Sharma recorded the disclosure statement of accused. Thereafter, he conducted personal search of accused and arrested the accused. He produced the accused in the Court thereafter. The accused was released on bail by the court. Thereafter, he recorded statement of witnesses u/s 161 CrPC and after obtaining the result from Excise Lab, ITO, he submitted charge-sheet in the present matter. The FIR No.272/2019 PS Mehrauli Page No.5 of 12 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.28 16:53:29 +0530 disclosure statement of accused is Ex.PW1/A. The arrest memo is Ex.PW1/C. The personal search memo of accused is Ex.PW1/B. The charge-sheet is Ex.PW5/A. PW-5 ASI Rajeev correctly identified the accused in the court. He was duly cross examined by Ld. defence counsel.
STATEMENT OF ACCUSED & FINAL ARGUMENTS
11. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him. Accused pleaded innocence and claimed to have been falsely implicated. Despite opportunity, accused chose not to lead any evidence in his defence. Thereafter, final arguments were heard.
COURT OBSERVATION
12. At the outset, it is pertinent to note that Section 33 Delhi Excise Act reads as under:
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) 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) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for 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 toddy or tari;
(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 FIR No.272/2019 PS Mehrauli Page No.6 of 12 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.28 16:53:35 +0530 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 lath rupees.
13. It is the case of prosecution that on 09.05.2019 at around 10:05 AM near Jhuggi, Near Ladosarai, in front of CNG pump, Chhattarpur, New Delhi i.e. within the jurisdiction of PS Mehrauli, accused was found in possession of 144 quarter bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only measuring 180 ml each and kept these illicit liquors without having any license / permit and thereby committed an offence punishable under Section 33 of the Delhi Excise Act. Per contra, it is the defence of accused that no public witness joined the proceedings. Also, it has been argued that there is discrepancy in the depositions of prosecution witnesses.
14. In order to prove the alleged offence, the prosecution is first and foremost required to prove the recovery of illicit liquor from the possession of accused. In order to prove the said recovery, it is a mandate to comply provision of section 100 (4) of the Cr.PC. The accused was nabbed from a residential locality but no public person has been examined. Under these circumstances, there is absolute non compliance of Section 100 Cr.PC Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory. An FIR No.272/2019 PS Mehrauli Page No.7 of 12 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.28 16:53:40 +0530 investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere effort was made to join respectable witnesses from the same locality.
15. In this regard reliance is also being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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".
16. In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the 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 witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to 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 Investigating Agency FIR No.272/2019 PS Mehrauli Page No.8 of 12 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.28 16:53:46 +0530 19.01.2013 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 the witnesses from the public had refused 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".
17. Further, prosecution has failed to prove when a number of people from the residential locality were available, why the testimony of said witnesses were not recorded. Not even a single notice was given to any public person to join the investigation. Photography and videography were also not conducted. The aforesaid lapse casts a doubt on the version of the prosecution, as presented in the chargesheet.
18. It further needs to be appreciated that after preparing the tehrir, HC Virender had sent Ct. Naresh for registration of FIR to the PS, however, admittedly seizure memo Ex. PW-1/A has been prepared prior to the time of registration of FIR. It is, therefore, clear that the seizure memo of the liquor must have been prepared at the spot before the tehrir was sent to the police station for registration of the FIR. A FIR No.272/2019 PS Mehrauli Page No.9 of 12 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.09.28 16:53:52 +0530 perusal of the seizure memo reveals that it contains the FIR details, thus raising a valid doubt in the mind of this court as to how it was made before the FIR was lodged and still contained the FIR details. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Ct. Naresh. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW- 1/A bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar vs. The Delhi Administration , 1989 Cri. L.J. 127, wherein it was observed paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to FIR No.272/2019 PS Mehrauli Page No.10 of 12 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.28 16:53:57 +0530 how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
19. In paragraph 4 of Mohd. Hashim v. State , 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
20. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo Ex. PW- 1/A. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time or that the IO never joined the investigation at the spot and every part of the investigation was done by him while sitting at the PS as alleged by the defence. In both the aforesaid FIR No.272/2019 PS Mehrauli Page No.11 of 12 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.09.28 16:54:03 +0530 cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
21. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal) 662).
22. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused, the benefit of which accrues in her favour. Accused Bhimi, W/o Sh. Dashrath is accordingly acquitted for the offence under Section 33 Delhi Excise Act.
23. Let bail bonds / surety bonds be furnished by the accused under Section 437A, CrPC.
Digitally signed
AVIRAL by AVIRAL
SHUKLA
SHUKLA Date: 2024.09.28
16:54:09 +0530
Announced in Open Court (AVIRAL SHUKLA)
on 28.09.2024 JMFC-05,South District/28.09.2024
Certified that this judgment contains 12 pages and bears my signatures at each page. AVIRAL by Digitally signed AVIRAL SHUKLA SHUKLA Date: 2024.09.28 16:54:14 +0530 (AVIRAL SHUKLA) JMFC-05,South District/28.09.2024 FIR No.272/2019 PS Mehrauli Page No.12 of 12