Delhi District Court
State vs Rahul @ Vicky on 7 November, 2024
DLWT020032122020
IN THE COURT OF MS. SWATI BHARDWAJ, JUDICIAL
MAGISTRATE FIRST CLASS-06, DISTRICT- WEST, TIS HAZARI
COURTS, DELHI
State Vs. Rahul @ Vicky
FIR No. 439/19
PS - Mundka
U/s 33/38 Delhi Excise Act
JUDGMENT
1) CIS No. : 2011/20
2) The date of commission of offence : 16.12.2019
3) The name of the complainant : Ct. Ajeet Singh
4) The name & parentage of accused : Rahul @ Vicky
S/o Sh. Jaipal Singh
R/o H. No. A-79, Veena
Enclave, Nangloi, Delhi.
5) Ld. APP for State : Sh. Pravesh Kumar Vyas
6) Offence involved : U/s 33/38 of Delhi Excise
Act.
7) The plea of accused : Pleaded not guilty
8) Final order : Acquittal
9) Judgment reserved on : 07.11.2024
10) Date of final order : 07.11.2024
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BRIEF STATEMENT OF REASONS FOR DECISION:
1. Summarily stated, the allegations of the prosecution are that on 16.12.2019 at about 10:15 PM at Tikri Border, Rohtak Road, Delhi within the jurisdiction of PS - Mundka, the accused Rahul @ Vicky was found carrying 24 carton boxes of illicit liquor each containing 48 quarter bottles in a Safari Car bearing no. DL8CNA 4045 registered in his name without any permit or license, thereby the accused committed an offence punishable under Section 33/38 of Delhi Excise Act, 2009.
2. Investigation was conducted into the allegations. Upon completion thereof, charge-sheet was filed. The accused was summoned. Compliance of section 207 Cr.P.C was done by providing copy of the charge-sheet and annexed documents to the accused.
3. Upon finding a prima facie case against the accused, a formal charge for offence punishable under Section 33/38 of Delhi Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. To substantiate the allegations, 01 witness was examined on behalf of the prosecution.
5. PW-1 ASI Ajeet deposed that on 16.12.2019 he received DD entry no. 79B regarding recovery of illicit liquor and he went to the place of recovery i.e. Place Near Tirki Border Metro Station. There he met with recovery witness Ct. Ajeet who handed-over the custody of accused and car make Tata Safari bearing registration no. DL 8CNA 4045 carrying illicit liquor to PW-1. PW-1 requested 4-5 passerby to join the investigation, however, none of them agreed. PW-1 alongwith Ct. Ajeet State Vs. Rahul @ Vicky FIR No. 439/19 2 of 6 took out 24 peties containing illicit liquor from the above said car. PW-1 checked and found 48 quarter bottles labeled with Royal General Reserve Whiskey For Sale in Arunachal Pradesh only were lying inside each peties. PW-1 took out one quarter bottle as sample bottle. PW-1 kept remaining bottles containing peties inside the 12 plastic sack and converted into 12 pulandas. PW-1 sealed them with the seal of AS. He seized the same vide seizure memo which is Ex. PW1/A. He also seized the car make Tata Safari vide seizure memo which is Ex.PW1/B. He recorded the statement of Ct. Ajeet and endorsed the same vide rukka which is Ex. PW1/C. Thereafter, PW-1 got the FIR registered through Ct. Ajeet.
6. PW-1 further deposed that after registration of FIR, PW-1 prepared the site plan which is Ex. PW1/D. PW-1 arrested the accused vide arrest memo which is Ex. PW1/E. PW-1 conducted the personal search of accused vide personal search memo which is Ex.PW1/F. PW-1 had recorded his disclosure statement which is Ex.PW1/G. At the time of recovery, he had filled form M29 at the spot which is Ex. PW1/H. PW-1 recorded the supplementary statement of recovery witness Ct. Ajeet u/s 161 Cr.P.C. PW-1 sent the sample bottles before the concerned Excise Lab through Paras and MHC(M) vide RC no. 197/21/19, collected the excise report and made same part of record. PW1 correctly identified the accused and sample bottle. The case property was destroyed vod. 14.08.2020. The order and sample bottle is Ex.PX (Colly). PW-1 correctly identified vehicle make Tata Safari bearing registration no. DL 8CNA 4045 through photographs which are Ex.PY (Colly).
7. Statement of accused was recorded under section 294 Cr.P.C.
State Vs. Rahul @ Vicky FIR No. 439/19 3 of 6wherein the accused admitted the genuineness of FIR No. 439/19 as Ex. P1, Certificate U/s 65B of Indian Evidence Act as Ex. P2, DD No. 74B as Ex. P3, DD No. 79B as Ex. P4 and Excise Test Result as Ex. P5. The examination of corresponding witness to the said document was, therefore, dispensed with.
8. After prosecution evidence was concluded, statement of accused was recorded U/s 313 read with Section 281 Cr.P.C. wherein the accused refuted all the incriminating circumstances and evidence put to him and pleaded innocence and false implication.
9. Accused chose not to lead any evidence in his defence and the same was closed.
10. Final arguments were led on behalf of both the parties.
11. Rival submissions have been considered and record of case has been carefully perused.
12. It is trite that in a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts. 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 must go to the accused.
13. As per the deposition of prosecution witnesses, seizure memo of the liquor Ex. PW-1/A was prepared before preparation of the rukka. However, Ex. PW-1/A already bears the number, date, offence, PS etc. of the present FIR. No explanation has been furnished by the prosecution regarding how the details of the FIR find mention on the seizure memo State Vs. Rahul @ Vicky FIR No. 439/19 4 of 6 which was allegedly prepared on the spot and prior to the registration of the FIR. This shows that either the liquor was seized after the registration of the FIR or the number of the FIR was inserted later on. Either way, the same creates a doubt regarding seizure of the illicit liquor in the manner suggested by the prosecution. Reliance is placed on the decision of the Hon'ble High Court of Delhi cited as Mohd. Hashim, Appellant Vs. State; 2000 CRI.L.J. 1510.
14. No seal handing-over memo has been proved by the prosecution. The entire prosecution case is silent regarding where the seal AS was deposited by the IO after use i.e. after sealing of the case property. In such a scenario, tampering with the sample or the case property cannot be ruled out creating a doubt regarding preservation of the sample/ the seized case property. Support is drawn from the decisions cited as Safiullah vs. State; (1993) 49 DLT 193 and Rajesh Jagdamba Avasthi Vs. State of Goa; (2005) 9 SCC 773.
15. Admittedly, no public persons were joined in the recovery of the illicit liquor or during investigation. Prosecution witnesses have conceded that no notice was served to the public persons who refused to join the investigation and no reason for such omission has been disclosed by the prosecution. Therefore, sincere efforts were not made to make independent witnesses join the investigation, despite their availability at the spot at the time of the alleged recovery. This casts a shadow of doubt on the story of the prosecution. Here one may refer to decision of Hon'ble High Court of Delhi cited as Anoop Joshi Vs. State; 1992 (2) C.C. Cases
314.
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16. In view of the above analysis, this court is of the considered opinion that the case of prosecution is rife with doubts and benefit thereof must be given to the accused.
17. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Consequently, the accused Rahul @ Vicky s/o Sh. Jaipal Singh is acquitted of the offence punishable under Section 33/38 of Delhi Excise Act, 2009. Digitally signed SWATI by SWATI GUPTA GUPTA 2024.11.07 Date:
15:26:56 +0530 Pronounced in the open (SWATI BHARDWAJ) Court on 05.11.2024 JMFC-06 (West), Tis Hazari Courts Delhi This judgment contains 06 signed pages.
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