Delhi District Court
State vs . Sunil Kumar@Edal on 15 March, 2023
IN THE COURT OF SH. PUNEET PAHWA,
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No.DLST02-011604-2021
IN THE MATTER OF:
STATE Vs. SUNIL KUMAR@EDAL
FIR No.613 /2020
PS Ambedkar Nagar
U/s 33/58 of the Delhi Excise Act, 2009
JUDGMENT
A) Sl. No. of the case : CR Cases 6900/2021
B) The date of commission of : 18.09.2020
offence
C) The name of the complainant : SI Vinay Kumar, D-4068,
PS Ambedkar Nagar
D) The name and address of : Sunil @ Edal, S/o Sh. Gulab
accused Singh, R/o E-171, Sangam Vihar,
New Delhi.
E) Offence complained of : 33/58 of the Delhi Excise Act,
2009
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 15.03.2023
DATE OF INSTITUTION : 26.08.2021
DATE OF FINAL ARGUMENTS : 24.02.2023
DATE OF JUDGMENT : 15.03.2023
FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.1 of 15
PS Ambedkar Nagar
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The present case has originated from the charge-sheet filed by the State, against accused Sunil @ Edal S/o Sh. Gulab Singh. As per charge- sheet, on 18.09.2020 at about 08:30 P.M., at G-Block, near Garva Chowk, Dakshinpuri, New Delhi within the jurisdiction of PS Ambedkar Nagar, accused was found in possession of 18 carton box, containing 48-48, quarter bottles each of 'Asli Santra maseladar Sharab' 180 ML-ADS, for sale in Haryana only which accused was carrying in his vehicle bearing DL-9CM- 8938 Maruti Baleno-old, Black Color, without having any license or permit.
2. On the basis of the charge-sheet, court took cognizance of the offence and the accused appeared on 23.12.2021, thereafter, he was supplied with copy of charge-sheet and documents in compliance of Section 207 Cr.P.C. Court framed charge against the accused for offence punishable under Section 33/58 Delhi Excise Act. Charge was read over and explained to him to which he pleaded not guilty and claimed trial.
3. During trial, accused admitted under Section 294 Cr.P.C. the registration of FIR No.613/2020 dt. 18.09.2020 PS Ambedkar Nagar without admitting its content which is Ex.P/A/1; certificate under Section 65B of Indian Evidence Act which is Ex.P/A/2; DD No.55A, 36A, 86A and 100A which are Ex.P/A/3 to Ex.P/A/5; verification report of vehicle particulars of vehicle bearing no.DL-9CM-8938 Ex.P/A/6; RC No.291/21/20 dt. 04.12.2020 which is Ex.P/A/7; and result of analysis from Excise Lab dt.
FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.2 of 15 PS Ambedkar Nagar 01.02.2021 which is Ex.P/A/8. Also, the State examined three witnesses viz. PW-1 HC Kulbir, PW-2 Inspector Vinay Kumar and PW-3 ASI Man Mohan.
4. During examination in chief, PW-1 HC Kulbir, deposed that on 18.09.2020, he was posted at PS Ambedkar Nagar as Constable and on that day, he along with Ct. Gograj and SI Vinay Kumar were on beat patrolling duty in the area of G Block, Dakshinpuri, New Delhi. When at about 08:30 PM, they were present near red light, G Block and checking the vehicles by putting barricade, a car bearing no. DL-9CL-8938 make Maruti Baleno black color came there from the side of MB Road and which was to go towards Dakshinpuri, the signal was given to stop the car. But the driver became frightened and slower the speed of car and started taking U turn to flee away from the spot. Upon suspicion, he along with his staff, the car was made stop. The cardboard cartons were appearing which was kept near the driving seat of the car. The driver was apprehended.
5. PW-1 HC Kulbir, further deposed that accused was enquired by IO and he had disclosed his name as Sunil @ Edel. The card board cartons were kept on rear seat of car and dicky as well. Some public persons were asked to join the investigation but none came forward to join the same. There were total 18 cardboard cartons and these were opened and checked and we found illicit liquor in quarter bottles. There were 48 quarter bottles in each petty having label of "Asli Santra Masaledar Desi Sharab for sale in Haryana only". One quarter bottle from each petty were separated for sample purpose and remaining were kept in same cartons. Two cartons were kept in one FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.3 of 15 PS Ambedkar Nagar plastic sack and so on. Those were kept in nine plastic sack and these were given Sr. no. 1A to 9A. Sample quarter bottles were given serial no. S1 to S18. Form M-29 was filled and seal of VKY was put. Form M 29 is Ex. PW 1/A. The sample quarter bottles and plastic sacks were sealed with the seal of VKY and seal after use was handed over to Ct. Gograj.
6. PW-1 HC Kulbir, further deposed that seizure memo of case property was prepared vide Ex.PW1/B. Seal after use was handed over to Ct. Gograj vide seal handing over memo Ex.PW-1/C. The car was also taken in to police possession vide seizure memo Ex. PW-1/D. IO prepared rukka vide Ex. PW 1/E and same was handed over to him for registration of FIR. He went to PS and got the FIR registered and after registration of FIR, the further investigation was assigned to ASI Manmohan. He handed over original rukka and copy of FIR to ASI Manmohan. Thereafter, he along with ASI Manmohan reached at the spot. IO SI SI Vinay handed over the sealed case property, prepared documents and custody of accused to IO / ASI Manmohan. IO ASI Manmohan filled the details of present FIR on each document.
7. PW-1 HC Kulbir, further deposed that IO prepared site plan of the place of recovery at our instance vide Ex. PW1/F. Accused was interrogated, his disclosure statement was recorded, he was arrested and his personal search was conducted vide memos Ex. PW-1/G, PW-1/H and PW- 1/I. Accused was taken to PS. Case property was deposited into malkhana. After medical examination, accused was lodged into lockup. IO recorded his FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.4 of 15 PS Ambedkar Nagar statement and relieved him. He stated that he could identify the case property if shown to him. Witness correctly identified the photograph containing sacks which is Ex. PH-1.Witness correctly identified the sample quarter bottle which is Ex.P-1 (Colly). Witness correctly identified the accused before the Court. PW-1 was duly cross-examined by Ld. Counsel for the Defence.
8. During examination in chief, PW-2 Inspector Vinay Kumar deposed that on 18.09.2020, he was posted at PS Ambedkar Nagar as SI and on that day, he along with Ct. Gograj and Constable Kulbir were on beat patrolling duty in the area of G Block, Dakshinpuri, New Delhi. When at about 08:30 PM, they were present near red light, G Block and checking the vehicles by putting barricade, a car bearing no. DL-9CL-8938 make Maruti Baleno black color came there from the side of MB Road and which was going towards Dakshinpuri, the signal was given to stop the car. But the driver became frightened and slowed down the speed of car and started taking U turn in order to flee away from the spot. Upon suspicion, he along with his staff, the car was made stop. The cardboard cartons were appearing which was kept near the driving seat of the car. The driver was apprehended.
9. PW-2 Inspector Vinay Kumar further deposed that accused was enquired by him and he had disclosed his name as Sunil @ Edel. The card board cartons were kept on rear seat of car and dicky as well. Some public persons were asked to join the investigation but none came forward to join the same. There were total 18 cardboard cartons and these were opened and FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.5 of 15 PS Ambedkar Nagar checked and we found illicit liquor in quarter bottles. There were 48 quarter bottles in each petty having label of "Asli Santra Masaledar Desi Sharab for sale in Haryana only".
10. PW-2 Inspector Vinay Kumar further deposed that one quarter bottle from each petty were separated for sample purpose and remaining were kept in same cartons. Two cartons were kept in one plastic sack and so on. Those were kept in nine plastic sack and these were given Sr. no. 1A to 9A. Sample quarter bottles were given serial no. S1 to S18. Form M-29 was filled and seal of VKY was put. Form M 29 is Ex. PW 1/A. The sample quarter bottles and plastic sacks were sealed with the seal of VKY and seal after use was handed over to Ct. Gograj. Seizure memo of case property was prepared vide Ex.PW1/B. Seal after use was handed over to Ct. Gograj vide seal handing over memo Ex.PW-1/C. The car was also taken into police possession vide seizure memo Ex. PW-1/D. I prepared rukka vide Ex. PW 1/E and same was handed over to Ct. Kulbir for registration of FIR.
11. PW-2 Inspector Vinay Kumar further deposed that Ct. Kulbir went to PS and got the FIR registered and after registration of FIR, the further investigation was assigned to ASI Manmohan. ASI Manmohan along with Ct. Kulbir came back to the spot to whom he handed over the custody of accused, possession of sealed liquor, above said vehicle and prepared documents. The details of present FIR was mentioned upon the prepared documents. IO prepared site plan of place of recovery at my instance vide Ex. PW-1/F. Thereafter, he was relieved. He stated that he could identify the FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.6 of 15 PS Ambedkar Nagar case property if shown to him. Witness correctly identified the photograph of the Sack which is Ex.PH1. The sample quarter bottle has been correctly identified by the witness which is Ex. P1. Witness correctly identified the accused before the Court. PW-2 was duly cross-examined by Ld. Counsel for the Defence.
12. During examination in chief, PW-3 ASI Manmohan deposed that on 18.09.2020, he was posted at PS Ambedkar Nagar as ASI and on that day, further investigation of the present case was assigned to him. Ct. Kulbir handed over original rukka and copy of FIR to him and thereafter, he along with him reached at the spot situated near Garva Chowk, G Block, Dakshinpuri, New Delhi where SI Vinay Kumar and Ct. Gograj were already present with accused. SI Vinay Kumar handed over the prepared documents and after that, he filled the details of present FIR on those documents. IO handed over custody of accused namely Sunil @ Edal and also handed over sealed case property i.e. illicit liquor. The car bearing no. DL-9CN-8938 was also handed over and it was already seized.
13. PW-3 ASI Manmohan further deposed that he prepared site plan of the place of recovery at the instance of Ct. Gograj and Ct. Kulbir vide Ex. PW-1/F. He interrogated accused Sunil @ Edal and recorded his disclosure statement Ex. PW-1/I. Accused was arrested and his personal search was conducted vide memos Ex. PW-1/G and PW-1/H respectively. After that, he along-with other staff and accused came back to PS. Case property i.e. illicit liquor and car were also brought to PS and deposited into malkhana. After FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.7 of 15 PS Ambedkar Nagar medical examination of accused, he was lodged into lockup. On next day, he was produced before the Hon'ble court from where he was sent to JC.
14. PW-3 ASI Manmohan further deposed that during investigation, he recorded statement of witnesses u/s 161 CrPC. The car was registered in the name of Ms. Rekha, W/o Sh. Sunil @ Edal and it revealed vide documents Ex. P/A/6. A notice u/s 133 MV Act was served upon her vide Ex.PW-3/A. Ms. Rekha was also interrogated and her statement was recorded vide Ex.PW-3/B. During interrogation, Ms. Rekha disclosed that her car was being used by her husband namely Sunil @ Edal and she was unaware about the any transportation of illicit liquor from the said car due to which she has not been charge-sheeted in the present case. During investigation, he had also sent the sample liquor to excise lab vide RC no. 291/21/20 vide Ex.P/A/7 and collected result of analysis Ex.P/A/8. After completion of investigation, he prepared charge-sheet and submitted the same before the Court for judicial verdict. He stated that he could identify the case property if shown to him. Witness correctly identified the photograph of the Sack which is Ex.PH1. The sample quarter bottle has been correctly identified by the witness which is Ex. P1. Witness correctly identified the accused before the Court. PW-3 was duly cross-examined by Ld. Counsel for the Defence.
15. 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, to which he pleaded FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.8 of 15 PS Ambedkar Nagar innocence and claimed to have been falsely implicated. Accused chose not to lead any defence evidence. Final arguments of both the parties were heard at length.
COURT OBSERVATION:
16. At the outset, it is pertinent to note that Section 33 Delhi Excise Act read as:
"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 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.
FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.9 of 15 PS Ambedkar Nagar
17. At the outset, it is pertinent to note that Section 58 Delhi Excise Act read as:
Whenever an offence has been committed, which is punishable under this Act, following things shall be liable to confiscation, namely-
(a) any intoxicant, material, still, utensil, implement, apparatus in respect of or by means of which such offence has been committed;
(b) any intoxicant unlawfully imported, transported, manufactured, sold or brought along with or in addition to, any intoxicant, liable to confiscation under clause (a);
(c) any receptacle, package, or covering in which anything liable to confiscation under clause (a) or clause (b), is found, and the other contents, if any, of such receptacle, package, or covering;
(d) any animal, vehicle, vessel, or other conveyance used for carrying the same.
18. It is also significant to note that Section 52 of Delhi Excise Act lays down a rebuttable presumption which goes as follows:
"Section 52. Presumption as to commission of offence in certain cases:
FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.10 of 15 PS Ambedkar Nagar
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.
2. ........."
19. It is the case of prosecution that 18.09.2020 at about 08:30 P.M., at G-Block, near Garva Chowk, Dakshinpuri, New Delhi within the jurisdiction of PS Ambedkar Nagar, accused was found in possession of 18 carton box, containing 48-48, quarter bottles each of 'Asli Santra maseladar Sharab' 180 ML-ADS, for sale in Haryana only which accused was carrying in his vehicle bearing DL-9CM-8938 Maruti Baleno-old, Black Color, without having any license or permit. Hence, accused had committed an offence punishable under Section 33/58 Delhi Excise Act, 2009. Per contra, it is the Defence of accused that no public witness joined the proceedings. Also, there is discrepancy in the deposition of PWs.
20. 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. Accused is residing in a residential colony 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 FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.11 of 15 PS Ambedkar Nagar 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 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. All the witnesses admitted that the place of incident was residential area. It appears that no sincere effort was made to join respectable witnesses from the same locality.
21. In this regard reliance is 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".
FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.12 of 15 PS Ambedkar Nagar
22. 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 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 FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.13 of 15 PS Ambedkar Nagar 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".
23. Prosecution has failed to prove when a number of people from the public locality were available, why the testimony of said witnesses were not recorded. Prosecution has also failed to file any DD entry of the recovery witness regarding departure and arrival. Photographs and videography was not conducted. Seizure memo of recovered liquor was prepared prior to the registration of FIR, however, it contains the details of present FIR and no explanation has been furnished by the IO regarding the same.
24. 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) FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.14 of 15 PS Ambedkar Nagar
662).
25. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused, the benefit of which accrues in his favour. Accused Sunil Kumar @ Edal S/o Sh. Gulab Singh is accordingly acquitted for the offence under section 33/58 Delhi Excise Act. His Bail Bond stands cancelled. Surety Bond stands discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on proper receipt and identification. Accused is directed to furnish necessary bail bonds under Section 437A CrPC.
26. Case property, if any, be confiscated to the State after the expiry of the period of the appeal.
27. File be consigned to Record Room, after due compliances.
(PUNEET PAHWA) CHIEF METROPOLITAN MAGISTRATE DISTRICT SOUTH, SAKET COURTS COMPLEX Announced in the open Court On 15th March, 2023 FIR No.613/2020 State Vs Sunil Kumar @ Edal Page No.15 of 15 PS Ambedkar Nagar