Delhi District Court
State vs Madhu on 10 October, 2022
IN THE COURT OF SH. PUNEET PAHWA,
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No.DLST02-014307-2021
IN THE MATTER OF:
State Vs Madhu
FIR No.175/2020
PS Ambedkar Nagar
U/s 33 of the Delhi Excise Act, 2009
JUDGMENT
A) Sl. No. of the case : CR No. 7693/2021
B) The date of commission of : 15.03.2020
offence
C) The name of the complainant : Ct. Deshraj, No.1040/SD, PIS
No.28104069,
PS Ambedkar Nagar
D) The name and address of : Madhu W/o Sh. Arun R/o House
accused No.D-1st/114, Madangir, New
Delhi.
E) Offence complained of : 33 of the Delhi Excise Act, 2009
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 10.10.2022
DATE OF INSTITUTION : 20.09.2021
DATE OF FINAL ARGUMENTS : 10.10.2022
DATE OF JUDGMENT : 10.10.2022
FIR No.175/2020 PS Ambedkar Nagar Page No.1 of 11
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The present case has originated from the charge-sheet filed by the State, against accused Madhu, W/o Sh. Arun. As per charge-sheet, on 15.03.2020 at about 4:00 PM at D-1st/114, Madangir, New Delhi, the accused was found in possession of one white color plastic katta containing 52 half bottles on which 'Asli Santra Masaledar Desi Sharab, for sale in Haryana only' was written, without having any license and permit to possess the same.
2. On the basis of the charge-sheet, court took cognizance of the offence and the accused appeared on 23.07.2022, thereafter, she 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 Delhi Excise Act. Charge was read over and explained to her to which she pleaded not guilty and claimed trial.
3. During trial, accused admitted under Section 294 Cr.P.C. the registration of FIR No.175/2020 PS Ambedkar Nagar without admitting its content; certificate under Section 65B of Indian Evidence Act; DD No.24B dated 15.03.2020; DD No.22 dated 15.03.2020; DD No.45A dated 15.03.2020 of PS, all of Ambedkar Nagar; Excise report dated 27.10.2020; road certificate of taking case property to Excise office by Ct. Sanjay; and register no.19. Also, the State examined three witnesses viz. PW-1 Ct. Amrabati, PW-2 HC Deshraj and PW-3 ASI Upender Kumar.
4. During examination in chief, PW-1 Ct. Amrabati deposed that on 15.03.2020, he was posted at PS Ambedkar Nagar as Ct. and on that day, FIR No.175/2020 PS Ambedkar Nagar Page No.2 of 11 he was present in PS. At about 04:10 PM, DD no.24B was marked to HC Upender which was in respect of apprehension of a lady with illicit liquor. DD No.24B is Ex.A3. Thereafter, they proceeded to the spot situated in front of house no. D-1/114, Madangir, New Delhi where Ct. Deshraj and Ct. Anil were already present alongwith accused Madhu and recovered plastic sack. Custody of accused was handed over to him and possession of recovered sack was handed over to IO. Accused was interrogated about the illicit liquor recovered from her possession but she could not give any satisfactory answer. The said sack was opened and checked and they found 52 half bottles of illicit liquor having label of Asli Santra Masaledar Desi Sharab, for sale in Haryana only. One half bottle was separated for sample purpose and remaining were kept in same sack. Form M-29 was filled and seal of 'UK' was put. Form M-29 is Ex.PW1/1. Seizure memo of recovered liquor was prepared vide Ex.A5. Seal after used was handed over to Ct. Deshraj. IO inquired Ct. Deshraj and his statement was reduced into writing. Rukka was prepared and same was handed over to Ct. Deshraj for registration of FIR. He went to PS, got the FIR registered. After registration of FIR, he came back to the spot and handed over the original rukka and copy of FIR to IO. IO prepared site plan of the place of recovery at the instance of Ct. Anil and Ct. Deshraj which is Ex.PW1/2. Accused had disclosed her name as Madhu and after interrogation, her disclosure statement was recorded vide Ex.PW1/3. Accused was not arrested and a notice u/s 41.A CrPC was served upon her. Case property was deposited in malkhana. IO recorded his statement and relieved him. Witness correctly identified the case property FIR No.175/2020 PS Ambedkar Nagar Page No.3 of 11 vide photograph containing picture of sealed plastic bag which is Photograph is Ex.PH1. Witness also correctly identified the sample half bottle Ex.B1. Witness also identified the accused. PW-2 was duly cross-examined by Ld. Counsel for the Defence.
5. PW-2 HC Deshraj, on 15.03.2020, he was posted at PS Ambedkar Nagar as Ct and on that day, he was on day patrolling duty alongwith Ct. Anil vide DD no. 22 already Ex.A4. When at about 04:00 PM, they reached in front of D-1/114, Madangir, they found that accused started pulling a sack inside her house upon seeing us in police uniform. Upon suspicion, they went there and asked the accused about the contents of sack but she could not give any satisfactory answer. Thereafter, sack was taken into his possession and he opened the same and found illicit liquor in half bottles. Thereafter, he informed duty officer regarding the recovery of illicit liquor and apprehension of accused. After some time, HC Upender alongwith Ct. Amrabati came at the spot to whom custody of accused and possession of recovered liquor were handed over. There were total 52 half bottles having label of Asli Santra Masaledar Desi Sharab, for sale in Haryana only. One half bottle was separated for sample purpose and remaining were kept in same sack. Form M-29 was filled which is Ex.PW1/1. Sample half bottle and sack were sealed with the seal of 'UK' and seal was handed over to him vide Ex.PW2/1. Seizure memo of case property was prepared vide Ex.A5. IO inquired from him and recorded his statement vide Ex.PW2/2. IO prepared rukka vide Ex.PW2/3 and same was handed over to him for registration of FIR. He went to the PS and got the FIR No.175/2020 PS Ambedkar Nagar Page No.4 of 11 FIR registered. After registration of FIR, he came back to the spot and handed over original rukka and copy of FIR to IO. IO prepared site plan at his instance vide memo Ex.PW1/2. Accused was interrogated and her disclosure statement was recorded vide Ex.PW1/3. A notice u/s 41A CrPC was served upon the accused. Case property was brought to the PS. IO recorded his statement and relieved him. Witness submitted that he can identify the case property if shown to him. Witness identified the photograph of case property and sample. The sample bottles are Ex.P1 (colly). Photograph is Ex.P2. Witness correctly identified the accused. PW-2 was duly cross-examined by Ld. Counsel for the Defence.
6. PW3 Upender Kumar on On 15.03.2020, he was posted at PS Ambedkar Nagar as HC and on that day, DD No.24B Ex.A3, he alongwith Ct. Amrabati proceeded for the spot situated in front of D-1/114, Madangir where Ct. Anil and Ct. Deshraj were already present alongwith the accused. Custody of accused was handed over to Ct. Amrabati. Ct. Deshraj handed over recovered sack to him. Accused was asked about the source of liquor but she could not give any satisfactory answer. There were 52 half bottles in the sack having label of Asli Santra Masaledar Desi Sharab, for sale in Haryana only. One half bottle was separated for sample purpose and remaining were kept in same sack. Form M-29 was filled which is Ex.PW1/1. Sample half bottle and sack were sealed with the seal of 'UK' and seal was handed over to Ct. Deshraj vide Ex.PW2/1. Seizure memo of case property was prepared vide Ex.A5. He inquired Ct. Deshraj and recorded his statement vide Ex.PW2/2. He prepared rukka vide Ex.PW2/3. FIR No.175/2020 PS Ambedkar Nagar Page No.5 of 11 Rukka was handed over to Ct. Deshraj for registration of FIR. He went to the PS and got the FIR registered. After registration of FIR, he came back to the spot and handed over original rukka and copy of FIR to the PW-3. He prepared site plan of place of recovery at the instance of Ct. Deshraj vide memo Ex.PW1/2. Accused was interrogated and her disclosure statement was recorded vide Ex.PW1/3. A notice u/s 41A CrPC was served upon the accused. Case property was brought to the PS. During investigation, he recorded statements of witnesses u/s 161 CrPC. He had also sent the sample half bottle in the Excise lab, Vikas Bhawan, ITO vide RC no. 207/21/20 is Ex.A7 and result of analysis is Ex.A6 was collected by PW3 and attached with the file. After completion of investigation, PW3 prepared charge-sheet and submitted the same before the Court for judicial verdict. Witness correctly identified the case property vide photograph containing picture of sealed plastic bag which is Photograph is Ex.PH1. Witness also correctly identified the sample half bottle Ex.B1. Witness also identified the accused. PW-3 was duly cross-examined by Ld. Counsel for the Defence.
7. 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 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.
FIR No.175/2020 PS Ambedkar Nagar Page No.6 of 11 COURT OBSERVATION:
8. 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.
9. It is the case of prosecution that on 15.03.2020 at about 4:00 PM at D-1st/114, Madangir, New Delhi, the accused was found in possession of one white color plastic katta containing 52 half bottles on which 'Asli Santra FIR No.175/2020 PS Ambedkar Nagar Page No.7 of 11 Masaledar Desi Sharab, for sale in Haryana only' without any license and permit to possess the same, and thereby committed 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, there is discrepancy in the depositions of the witnesses.
10. 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 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. It appears that no sincere effort was made to join respectable witnesses from the same locality.
11. 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 FIR No.175/2020 PS Ambedkar Nagar Page No.8 of 11 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".
12. 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 FIR No.175/2020 PS Ambedkar Nagar Page No.9 of 11 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 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".
13. 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. Moreover, both PW-2 and PW-3 had stated that the photograph of the case property was not taken in their presence. FIR No.175/2020 PS Ambedkar Nagar Page No.10 of 11
14. 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).
15. 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. Hence, accused Madhu W/o Sh. Arun is accordingly acquitted for the offence under section 33 Delhi Excise Act. Her 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 personal bond under Section 437A CrPC.
16. Case property, if any, be confiscated to the State after the expiry of the period of the appeal.
17. 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 10th October, 2022 FIR No.175/2020 PS Ambedkar Nagar Page No.11 of 11