Delhi District Court
State vs Pradeep on 3 October, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE03, NORTH
EAST KARKARDOOMA COURTS, DELHI
Presided by: Nitish Kumar Sharma
STATE VS. PRADEEP
F.I.R. No. : 38/2019
Police Station: Shastri Park
U/S 33/58 Delhi Excise Act
(a) Case ID number/CR No. : 3068/2019
(b) Date of commission of the offence : 23.01.2019
(c) The name of the complainant : HC Sandeep Kumar No.
878/NE, PS Shastri Park, Delhi.
(d) The name of the accused, : Pradeep S/o Sh. Jile Singh, R/o
parentage and residence H.No. Village Sisana, PS
Kharkhoda District, Sonipat,
Haryana.
(e) Charge framed : Under Section 33/58 Delhi
Excise Act
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Acquittal
(h) The date of such order : 03.10.2023
Challan filed on: 22.10.2019
Final arguments heard on: 03.10.2023
Judgment announced on: 03.10.2023
FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 1 of 15
JUDGMENT
CASE OF PROSECUTION
1. The wheels of criminal justice system were set in motion in the present case upon apprehension of the accused Pradeep by HC Sandeep & Ct. Sunil on 23.01.2019 at about 7:00 AM near bus stop Khajuri Chowk, Delhi within the jurisdiction of PS Shastri Park, who was found in possession of 40 cartons having 50 quarter bottles each of illicit liquor without any permit or license of National Capital Territory of Delhi. It is the case of the prosecution that accused Pradeep was driving the vehicle bearing number HR 10 J7343 having the aforesaid illegal liquor and upon being checked, he was apprehended where upon illicit liquor was found in his possession. It is stated that accused Pradeep thereby committed an offence punishable u/s 33/58 Delhi Excise Act.
COURT PROCEEDINGS
2. After completion of investigation, charge sheet was filed against the accused under Section 33/58 Delhi Excise Act on 22.10.2019, cognizance of offence was taken and the accused was consequently summoned. Copy of charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 2 of 15 CHARGE
3. Thereafter, vide order dated 04.12.2021, charge for committing offence punishable u/s 33/58 Delhi Excise Act was framed against the accused, to which, he pleaded not guilty and claimed trial.
DEPOSITION OF PROSECUTION'S WITNESSES
4. Following documents were relied upon by prosecution and were exhibited during the trial: S.No. Document Exhibit No.
1. Seizure memo of illicit liquor PW1/A
2. Seizure memo of car PW1/B
3. Rukka PW1/C
4. Site plan PW1/D
5. Arrest memo, personal search memo PW2/A, PW2/B & and disclosure statement PW2/C
5. In order to prove its case qua the offence u/s 33/58 Delhi Excise Act, the prosecution has examined 5 witnesses in total.
6. PW1 HC Sandeep and PW3 HC Sunil deposed that on 23.01.2019, they alongwith Ct. Sunil were on patrolling duty and at the instance of secret informer, a barricade was installed and FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 3 of 15 vehicles were being checked and at about 07:00 a.m. a car bearing No. HR 10J 7343 was stopped and upon checking, 40 cartons of illicit liquor having 50 quarters each were found in possession of the accused. They further deposed that HC Sandeep prepared rukka after seizing and sealing the case property and sent Ct. Sunil for registration of FIR upon which ASI Sanjay came at the spot and conducted further investigation. The accused and case property were correctly identified by the witnesses.
7. PW2 SI Sanjay deposed that on 23.01.2019 upon receiving information regarding receiving illicit liquor from DO, he went to the spot where HC Sandeep and HC Rakesh met him and handed over case property and accused to him. He deposed that after registration of FIR, he prepared site plan at the instance of HC Sandeep and arrested the accused, conducted personal search and recorded his disclosure statement. He deposed that he sent the case property to ITO, Excise Officer through Ct. Vijay and after obtaining the result filed the chargesheet in the present case.
8. PW4 ASI Rakesh deposed that on 23.01.2019, he joined the raiding party with Ct. Sunil and HC Sandeep and at about 07:00 a.m. a car bearing No. HR 10J 7343 was stopped and checked and upon checking, 40 cartons of illicit liquor were seized. He further deposed that HC Sandeep took out samples and after preparation of rukka, sent Ct. Sunil for registration of FIR. He FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 4 of 15 further deposed that after ASI Sanjay came at the spot, he was relieved.
9. PW5 HC Vijay deposed that he took the sample in sealed condition from malkhana and deposited the same in Excise Lab and that the case property was not tampered while the same was in his possession.
10. The remaining witnesses were admitted by accused in his statement recorded u/s 294 Cr.PC recorded on 07.06.2023.
STATEMENT / DEFENCE OF THE ACCUSED
11. Upon completion of prosecution evidence, statement of accused under Section 313 Cr.PC read with Section 281 Cr.PC was recorded on 28.06.2023. The accused denied the allegations and pleaded innocence and opted not to lead defence evidence.
ARGUMENTS
12. It is contended by Ld. Counsel for accused that nothing has been recovered from possession of the accused and he is innocent and has been falsely implicated in this case after planting case property. It is further contended that all prosecution witnesses are police witnesses and no independent public witness were joined and all writing work was done in the police station. It is further contended that the prosecution has failed to prove its case FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 5 of 15 beyond reasonable doubts and hence, the accused is entitled to be acquitted. On other hand, Ld. APP for State contended that accused has been found with illicit liquor by the police official and in course of investigation, the testimony of police officials also supports the case of prosecution.
13. With respect to the charge under Section 33/58 of the Delhi Excise Act, the case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or licence. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
14. Relying upon Section 52 of the Delhi Excise Act, learned Assistant Public Prosecutor for the State had argued that where the accused is charged of commission of the offence punishable Section 33/58 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary.
15. I have thoroughly and carefully perused the record. The respective submissions of the learned Assistant Public FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 6 of 15 Prosecutor for the State and learned counsel for the accused have been considered.
Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of offence in certain cases. (1) In prosecution under Section 33/58, 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.
(2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
ANALYSIS AND FINDINGS
16. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 7 of 15 NO PUBLIC WITNESS
17. Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from bus stop Khajuri Chowk, Delhi. As per the site plan Ex.PW1/D, the spot of recovery was bus stand, Khajuri Chowk, Delhi which, according to the site plan, is also surrounded by residential properties. The place of recovery and apprehension of the accused is, therefore, clearly located in an area where public persons would be readily available. The apprehension and recovery were allegedly made at about 7:00 AM. Thus, at the place and time of the alleged recovery of illicit liquor and apprehension of the accused, public persons would in all likelihood have been present and available or have at least passed by the spot. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
18. PW1, in his crossexamination, stated that he did not seize the documents of the car and did not verify the ownership. He further stated that he did not made video of the case property recovered at the time of recovery.
As per testimonies of witnesses, case property was FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 8 of 15 sealed before registration of FIR and no handing over memo of seal was prepared. It is apparent that no notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW1 or PW3 to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the CrPC. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 9 of 15 one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
19. Though, non examination of public persons or non joining can not be the sole ground for rejecting the case of the prosecution, yet prudence require that testimony of police officials be examined and scrutinized carefully. The factum of nonjoining and non examination of any public persons make another fact very crucial i.e. presence of PW1 or PW3 at the spot.
NONMENTIONING OF DEPARTURE OR ARRIVAL ENTRY
20. The present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by police official namely Head Constable Sandeep, who alongwith Head Constable Rakesh and Ct. FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 10 of 15 Sunil was on duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that 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 shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
"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."
FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 11 of 15 POSSIBILITY OF MISUSE OF SEAL OF THE INVESTIGATING OFFICER
18. As per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the HC Sandeep with the seal of 'SS'. As per the police report, after use the seal was handed over to Constable Sunil, however, no handing over memo regarding the same was prepared. The seal in the present case was not handed over to Ct. Sunil in presence of any independent witness. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
OTHER DISCREPANCIES
21. PW1 Head Constable Sandeep has deposed that he had seized the liquor vide memo Ex. PW1/A and he thereafter prepared the rukka Ex. PW1/B. It is, therefore, clear that the seizure memo of the liquor was prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo Ex. PW1/A. Accordingly, it follows that the number of the FIR would have come to the knowledge of HC Sandeep or investigating officer only after a copy of the FIR was brought to the spot by Constable Sunil. Thus, ordinarily, the FIR number should not find mention in the seizure memos, which came into existence before registration of the FIR. However, interestingly, the seizure FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 12 of 15 memo Ex. PW1/A bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. PW1/HC Sandeep in his crossexamination admitted that no alteration or endrosement was done after registration of FIR. 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 v. The Delhi Administration, 1989 Cri. L.J. 127. 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. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
22. As per Section 52(1), the words "for the possession of which he is unable to account satisfactorily" clearly reveal that as a prerequisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, for the reasons mentioned above the prosecution has failed to establish beyond reasonable doubt that the accused FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 13 of 15 was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case.
CONCLUSION:
23. No independent witness was cited or examined by the prosecution, daily diary entry regarding departure of PW1 has not been proved, possibility of misuse of seal has not been ruled out and the appearance of FIR number and case particulars on the seizure memo has not been explained. These facts when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version.
24. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused. Thus, in view of the aforesaid discussion, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charge u/s 33/58 Delhi Excise Act against him. The accused Pradeep is hereby acquitted of the offence punishable under Section 33/58 of the Delhi Excise Act. Case property be confiscated to State as per rules. FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 14 of 15
25. Ordered accordingly.
Digitally
signed by
NITISH
NITISH Date:
Announced in the open court 2023.10.03
17:12:08
on 03.10.2023 +0530
(Nitish Kumar Sharma)
Metropolitan Magistrate03,
NorthEast, Karkardooma Courts, Delhi
FIR No. 38/2019 State Vs. Pradeep PS: Shastri Park Page no. 15 of 15