Delhi District Court
Title Of The Case: : State vs . Mukesh on 10 April, 2023
IN THE COURT OF MS. SANYA DALAL
METROPOLITAN MAGISTRATE-I (N/W)
ROHINI COURTS, DELHI
New Case No. : R-528315/16
Title of the case: : State vs. Mukesh
FIR No. : 331/14 PS Sultanpuri
Date of institution : 01.12.2014
Date of reserving Judgment : 10.04.2023
Date of pronouncement : 10.04.2023
JUDGMENT :
(a) The date of commission 22.03.2014
(b)The name of complainant Ct. Ravinder, No. 1768/OD
(c) The name of accused Mukesh
S/o Lakhmi
R/o D-2/396, Sultanpuri, Delhi.
(d) The offence complained of 33 Delhi Excise Act
(e)The plea of the accused Pleaded not guilty
(f)The final order Acquittal
(g)The date of such order 10.04.2023
JUDGMENT
1. In the present case, facts in brief can be stated as that on 22.03.2014 at about 10.00 AM, in front of Gali, D-2/393, Sultanpuri, Delhi, accused was found in possession of one plastic katta containing 24 quarter bottles of Murthal No. 1 Masaldedar Desi Sharab in contravention of provisions of Delhi Excise Act, hence, he was prosecuted for the said allegations qua the offence u/s 33 of The Delhi Excise Act, 2009.
FIR No. 331/14 State vs. Mukesh 1 / 10
2. Upon completion of investigation, chargesheet was filed u/s 33 of The Delhi Excise Act, 2009, against the accused person.
3. The cognizance of the offence u/s 33 of Delhi Excise Act was taken on 01.12.2014 and the accused was summoned. Upon appearance of the accused, the compliance of Section 207 CrPC was carried out.
4. The material on record prima facie disclosed the commission of offence u/s 33 of The Delhi Excise Act, 2009. The charge was accordingly framed against the accused person on 01.04.2015 to which he pleaded not guilty and claimed trial. Hence, this Court conducted trial.
5. For proving its case, prosecution examined 04 witnesses.
6. PW1 W/HC Saroj deposed that on 22.03.2014, at 12.20 PM, she registered the present FIR Ex. PW1/A and made an endorsement upon the rukka Ex. PW1/B. Accused was not cross examined despite opportunity given.
7. PW2 HC Ravinder deposed that on 22.03.2014, he was on patrolling duty in the area of D Block, Sultan Puri and at about 10.15 pm, he met with one secret informer who informed that one person was trying to take two patties of illicit liquor in plastic katta from the front of H No. 396, D-2 Block, S. Puri to any other place and, if raided, he will be apprehended. He deposed that he along with secret informer reached at said spot and asked four five public persons to join the investigation but none agreed and went away without disclosing their names and address. He deposed that secret informer pointed out towards the accused and on seeing him in police uniform the accused tried to escape from the spot but he apprehended him and made inquiry regarding said katta but he did not give any specific reason for the same. He deposed that he checked the same and found the FIR No. 331/14 State vs. Mukesh 2 / 10 same to be containing illicit liquor. Thereafter, he had given information regarding illicit recovery at the PS. After some time, IO/ HC Prem came at the spot and he handed over the custody of accused as well as recovered case property to IO. He deposed that IO opened the said plastic katta and found containing one pattie containing 24 quarter bottles of murthal no. 1 desi sharab of 375 ml and IO checked said chunni and found containing one carton of 24 quarter bottles of murthal no. 1 desi sharab of 375 ml. He deposed that IO took out one quarter bottle from each pattie as a sample and remaining bottles put into plastic katta and the same was sealed with the seal of PS. He deposed that IO seized the recovered liquor vide memo Ex. PW2/A. IO recorded his statement Ex. PW2/B and prepared the rukka and got registered the FIR through him. IO prepared site plan Ex. PW2/C, arrested the accused and personally searched vide memos Ex. PW-2/D & E. IO also filled form M-29. Thereafter, case property deposited into maalkhana.
He deposed that on 28.03.2014, I had taken one sealed pullanda sealed with the seal of PS to the Excise Office. MHC(M) has produced one half bottle of 375 ml with broken seal Ex. P1. Destroy order was Mark A. Accused was not cross examined despite opportunity given.
8. On 10.04.2023, PW2 was cross examined in pursuance of an application u/s 311 Cr.PC. He deposed that he was alone on the patrolling duty and he left the PS vide DD no. 32A at about 9.00 PM. He deposed that a secret informer met him at about 9.45 PM and remained till 10.50 PM. The walking distance between the spot and PS was about 10.15 minutes. IO came at the spot at about 10.30 PM and they finally left the spot at about 11.00 PM. IO prepared the tehrir at about 10.45 PM. He admitted that the place of incident was a crowded place. He admitted that no date was mentioned in the site plan and seizure memo.
9. PW3 ASI Prem Singh deposed that on 22.03.2014, on receipt of DD no. 32B regarding recovery of illicit liquor, he went to the spot and met with Ct. Ravinder who handed over the custody of accused Mukesh and recovered case FIR No. 331/14 State vs. Mukesh 3 / 10 property i.e. plastic katta containing liquor in gatta pattie and one gatta pattie tied within chunni to him. He deposed that he opened the said plastic katta and found containing one pattie containing 24 half bottles of murthal no. 1 desi sharab of 375 ml and checked said chunni and found containing one carton of 24 half bottles of murthal no. 1 desi sharab of 375 ml. He took out half bottle from each pattie as a sample from recovered liquor and remaining bottles put into plastic katta and the same was sealed with the seal of PS. He deposed that seal after used handed over to Ct. Ravinder. He seized the recovered liquor vide memo already Ex. PW2/A and recorded statement of Ct. Ravinder already Ex. PW2/B and prepared the rukka Ex. PW 3/A , handed over the same to Ct. Ravinder for the registration of FIR. He deposed that he prepared site plan already Ex. PW2/C and after sometime, Ct. Ravinder came back at the spot and handed over the original rukka and copy of FIR to IO for further consideration. He arrested the accused and personally searched vide memos already Ex. PW-2/D & E. He also filled form M-29 Ex. PW3/B. He deposed that on 28.03.2014, I had taken one sealed pullanda sealed with the seal of PS to the Excise Office. MHC(M) has produced one half bottle of 375 ml with broken seal Ex. P1. Destroy order was Mark A. Accused was not cross examined despite opportunity given.
10. PW4 ASI Ram Singh deposed that on 09.09.2014, investigation of the present case was marked to him. He deposed that he filed the charge-sheet of the present case.
Accused was not cross examined despite opportunity given.
11. Vide separate statement of the accused u/s 294 Cr.PC r/w 313 Cr.PC the accused admitted DD No. 32B , chemical examiner report, contents of register no. 19.
12. Upon completion of prosecution evidence, the accused was examined FIR No. 331/14 State vs. Mukesh 4 / 10 in accordance with Section 313 Cr.P.C. The entire incriminating evidence was put to him and he denied the same and stated to be have been falsely implicated. The accused opted not to lead DE.
13. Final arguments were heard.
14. Sh.Pankaj Yadav, Ld. APP for the State argued that on the basis of the entire evidence brought on record, the guilt of the accused has been established beyond reasonable doubt accordingly, the accused shall be convicted. He further argued that from the entire evidence led by the prosecution, it is clearly established that illicit liquor without any permit/license was recovered from the possession of the accused person.
15. On the other hand, Sh. Suresh Bhardwaj Ld. Counsel for the accused argued that no public witness was present at the spot at the relevant point of time. He further argued that there are material contradictions in the testimony of complainant and the IO which reveals that this is a false case lodged against the accused and further argued that the accused is innocent who has been falsely implicated by the prosecution.
Applicable Law and its application to present facts
16. Section 33 of The Delhi Excise Act, 2009 provides penalty for unlawful import, export, transport, manufacture, possession, sale etc. of any intoxicant or liquor.
17. Before a person can be held liable for commission of any offence, the prosecution has to establish his guilt beyond reasonable doubt.
FIR No. 331/14 State vs. Mukesh 5 / 10
18. In the present case, the essential ingredients to establish the liability of the accused person under Section 33 of The Delhi Excise Act, 2009 is that the illicit liquor was recovered from the possession of the accused.
19. I shall now delve into the appraisal of material available on record.
20. Possibility of tampering: The testimony of PW2 reflects that the case property i.e. one quarter bottled from each pattie and the remaining case property was sealed with the seal of PS however, there is no handing over memo of the seal to suggest that the seal used for the seizure of the case property remained in possession of any independent person. PW1 correctly identified the case property and same was Ex. P-1 and at the time of production of case property, the same was bearing a broken seal.
The production of the case property with a broken seal during the trial as well as non drawing of any other sample for examination clearly reflects upon the lacunas in the case of the prosecution.
21. Proof regarding the complainant being on patrolling duty:
It would be pertinent to note that there is no proof/material on record to prove that PW2 was on patrolling duty on the relevant point of time i.e. on
22.03.2014. Further, there is no departure entry to the said effect.
At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
FIR No. 331/14 State vs. Mukesh 6 / 10 Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held by Hon'ble High Court of Delhi in Rattan Lal Vs. State 1987 (2) Crimes 29, held that;
"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. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the instant case this provision has not been complied by the concerned Police Witness/PW2 The relevant entries regarding the arrival and departure of the police officials have not been proved.
22. Non Joining of any independent public witnesses: As per the version of PW2 and PW3 the public persons were asked to join the investigation but none of them agreed and went away without disclosing their names and addresses. As per the version of PW3, the alleged recovery was effected from a very crowded place. Further the IO has not produced any notice u/s 160 of the Cr.PC which ought to have been served upon those available independent witnesses who allegedly refused to join the investigation.
The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present FIR No. 331/14 State vs. Mukesh 7 / 10 case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338] , dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
The requirement of the police officials to make endeavour to ask the FIR No. 331/14 State vs. Mukesh 8 / 10 public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417 , wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinize their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
23. Doubtful Seizure Memo A careful perusal of the testimony of PW2 would reveal that on 30.05.2012, he after the seizure of the case property with the seal of AH, prepared a seizure memo which was Ex. PW2/A. Thereafter, IO recorded the statement of PW2 which is Ex. PW2/B as the original tehrir and he was sent to the PS for registration of FIR. The chronology of events are such that the IO first of all prepared the seizure memo and seized the case property thereafter, FIR was registered on the basis of rukka which was handed over to PW2 after preparation of the above said document. Therefore, admittedly the present FIR was registered after the preparation of these documents however, perusal of the seizure memo Ex. PW2/A, and the testimony of the witnesses reflects that the seizure memo of the FIR No. 331/14 State vs. Mukesh 9 / 10 case property is bearing the full particulars of FIR thereupon which creates a serious doubt upon the story of the prosecution.
24. No photography of case property was carried out by the investigating agency.
Also, the testimony of all the prosecution witnesses is completely silent upon the aspect of the photography of the case property. Accordingly, no photographs of the case property were taken at the time of recovery.
25. In view of the above, it can be safely concluded that prosecution has miserably failed to establish beyond reasonable doubt the case against the accused. Hence, the benefit of doubt be given to the accused. Since the recovery of illicit liquor from the possession of accused could not be established, accused namely Mukesh stands acquitted of the offences under Section 33 The Delhi Excise Act, 2009.
26. Bail bonds filed by the accused in compliance of section 437A Cr.PC shall remain in force for the period of six months from today.
File be consigned to record room after due compliance.
Announced in the open Court on 10th day of April, 2023.
SANYA Digitally signed
by SANYA DALAL
Date: 2023.04.10
DALAL 04:44:52 -0300
(SANYA DALAL)
METROPOLITAN MAGISTRATE-1
North West ROHINI / DELHI
10.04.2023
FIR No. 331/14 State vs. Mukesh 10 / 10