Delhi District Court
State vs . Sonu on 20 December, 2019
IN THE COURT OF MS. RASHMI GUPTA
METROPOLITAN MAGISTRATE06, NORTH,
ROHINI COURTS, DELHI
State Vs. Sonu
FIR No. 37/11
PS. Adarsh Nagar
U/s. 33 Delhi Excise Act
CIS No. 5285637/16
JUDGMENT
1) The date of commission of offence : 15.02.2011
2) The name of the complainant : HC Suresh Kumar
3) The name & parentage of accused : i) Sonu S/o Sh. Dalip
ii) Avinash S/o Sh. Bijender Singh (Already expired)
4) Offence complained of : U/s 33 Delhi Excise Act
5) The plea of accused persons : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 20.12.2019 Date of Institution : 25.05.2011 Judgment reserved on : Not reserved Judgment announced on : 20.12.2019 State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 1/13 THE BRIEF REASONS FOR THE JUDGMENT:
1. Case of the prosecution in brief is that on 15.02.2011, at about 06.35 PM near Dilkhush Apartment, GTK Road, Azadpur Delhi within the jurisdiction of PS Adarsh Nagar, both the accused persons namely Avinash (since expired) and Sonu@Sunny@Soni were found in possession of illicit liquor without any permit or license and in contravention of notification issued by Delhi Administration and thereby committed an offence punishable u/s 33 Delhi Excise Act.
2. After completion of investigation, chargesheet against the accused for offence u/s. 33 Delhi Excise Act was filed in the Court and after complying with the provisions of Sec. 207 Cr.PC, arguments on charge were heard. Vide order dated 28.07.2012, charge was framed U/s 33 Delhi Excise Act against the accused persons to which they pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined 7 witnesses.
4. HC Suresh Kumar was examined as PW1. He deposed that on 15.02.2011, he was on patrolling duty. He along with Ct.
Ranbir were present at HP Petrol Pump GT Karnal Road. At about 06.00 PM, one secret informer met them and told them that two persons along with illicit liquor would come from the Bada Bagh side and went towards Lal Bagh side on one scooter and can be apprehended, if raided. Thereafter, he asked 45 public persons State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 2/13 to join the investigation but none agreed and went away without disclosing their names and identity. Without wasting any time, he prepared raiding party consisting of him and Ct. Ranbir and took position on the road which go towards bade bagh to Lal Bagh side. At about 06.35 PM, two persons came on one scooter no. DL7SAF3552. On seeing the persons, the secret informer pointed out towards them and told them that they were the same persons. They were carrying some heavy article on the scooter. On suspicion, they gave signal to them and asked them to stop. They stopped the scooter. On interrogation, they both revealed their names as Soni and Avinash. On checking, they found 4 cartons of illicit liquor wrapped in one cloth. On checking each carton they found 48 quarter bottles from each peti of Delhi Excise Grain Spirit Pvt. Ltd. Four samples bottles from each peti was taken out and the sample bottles were sealed with the seal of SK and gave them sample no. A1 to A16 and the remaining illicit liquor were kept in the cartons and the same were sealed with the seal of SK. They were given serial no. as A1 to A4. In the meantime, Ct. Parphool came at the spot, form no. 29 was also filled. Seal after use was handed over to Ct. Ranbir. Thereafter, the illicit liquor was seized vide seizure memo Ex. PW1/A bearing his signature at point A. He also seized the scooter no. DL7SAF3552 vide seizure memo Ex. PW1/B bearing his signatures at point A. Thereafter, he prepared tehrir and handed over to Ct. Ranbir for registration of FIR. Ct. Ranbir left the spot State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 3/13 and went to PS for registration of FIR. After getting FIR registered, Ct. Ranbir along with HC Vijay Meena came back at the spot. He handed over both the accused persons along with the case property to HC Vijay Meena. Thereafter, HC Vijay Meena came back at the spot. He handed over both the accused persons along with the case property to HC Vijay Meena. Thereafter, HC Vijay Meena prepared site plan at his instance. HC Vijay Meena arrested and personally searched the accused persons vide memos Ex. PW1/C to Ex.PW1/F bearing his signatures at point A. Thereafter, HC Vijay Meena recorded his statement. Accused Soni was present in the court, correctly identified. 2 photographs of the case property were shown to the witness and the same are Ex. P1 and Ex. P2.
5. Ct. Ranbir was examined as PW2. He deposed on the same lines as deposed by PW1 HC Suresh Kumar.
6. W/ASI Prafulla was examined as PW3. She deposed that on 15.02.2011, she was as DO and her duty hours were 04.00 pm to 12.00 midnight. At about 08.15 PM, Ct. Ranvir handed over rukka to her, which was sent by HC Suresh Kumar. On the basis of which, she recorded FIR in the present case. She had also brought the original FIR register at the time of her deposition before the court. Copy of FIR as Ex. PW3/A bearing her signature. She also made endorsement on rukka i.e. Ex. PW3/B. After registration of case, she handed over the copy of FIR and original rukka to Ct. Ranvir for handing over the same to HC State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 4/13 Vijay.
7. Ct. Kishan Yadav was examined as PW4. He deposed that on 25.02.2011, MHC(R) handed over to him one copy of FIR of the present case along with one copy of M.29 form along with 16 samples vide road certificate no. 9/21/11 to be deposited in the Excise laboratory, ITO. He had deposited the same on the same day. While he had the custody of the above said samples, they were not tampered with and were safely deposited in sealed condition. He got the receiving done upon the copy of road certificate and deposited in MHC(M) (CP). It is further deposed by him that on 08.04.2011, he had gone to excise department, L Block, Vikas Bhawan, I.P. Estate Delhi on the request of IO. Upon which he had got the result regarding the present case from the laboratory and handed over the same to the IO.
8. SI Anil Kumar was examined as PW5. He deposed that on 25.03.2011, the investigation with respect to the present case was marked to him and on the next date he added Section 58 D of Delhi Excise Act in the present case. It is further deposed by him that on 08.04.2011, the result of FSL was declared which was positive in nature. He collected the result of FSL through Ct. Krishan which was annexed in the file. On 12.04.2011, he filed the chargesheet.
9. HC Parful was examined as PW6. He deposed that on 15.02.2011, he was on patrolling duty in the area of Azadpur regarding the control of illicit liquors. On that day, he had an State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 5/13 information that illicit liquor would be carried towards Lal Bagh area by some persons. During patrolling when he reached near Dil Khush Apartment, GTK Road, he saw that HC Suresh Kumar and Ct. Ranbir had already apprehended two persons with scooter bearing no. DL 7S AF 3552. After going at the spot, he came to know that the said persons were found in possession of four cartons of illicit liquor having 48 quarter bottles in each carton. Four samples bottles from each carton were taken by HC Suresh Kumar and the same were given number as A1 to A16 and samples as well as the remaining illicit liquor were kept in respective cartons/petti and given number as A1 to A4. Same were sealed with the seal of SK. IO filled up form M29. Seal after use was handed over to Ct. Ranbir. Thereafter, the illicit liquor was seized vide seizure memo already Ex PW 1/A bearing his signature at point C. IO seized the scooter vide memo already Ex PW 1/B bearing his signature at point C. Thereafter, IO prepared rukka and handed over the same to Ct. Ranbir for registration of FIR. After about one and half house Ct. Ranbir came at the spot alongwith HC Vijay Meena. The case property as well as the accused Soni and Avinash and the case documents were handed over to HC Vijay Meena by the first IO. Second IO had prepared site plan at the instance of first IO. Accused were arrested and personally searched vide memos already Ex PW 1/C to 1/F bearing his signature at point C. IO recorded his statement. Accused Soni was present in the court, correctly identified by the State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 6/13 witness. He could also identify the case property if shown to him. The case property has already been destroyed vide order dated 21.10.2014 and the same was marked as A and B. Accused Avinash has already expired.
10. HC Vijay Kumar Meena was examined as PW7. He deposed that on 15.02.2011, further investigation of the case was marked to him. He went to the spot alongwith Ct. Ranbir. 1 St IO handed over the accused namely Avinash and Soni to him alognwith duly sealed case property and the case documents. IO had also handed over the scooter no. DL 7S AF 3552. He arrested the accused vide memo already Ex PW 1/C and 1/E bearing his signatures at point D. He also prepared site plan at the instance of 1st IO which is Ex PW 7/A bearing his signature at point A. Accused were personally searched vide memos already Ex PW 1/D and 1/F bearing his signatures at point D. HC Praful from excise department was also met him at the spot. He recorded the statement of PWs. Case property was deposited in the malkhana. The case property had already been destroyed vide order dated 21.10.2014 and the same was marked as A and B. Accused Soni was present in the court, correctly identified by the witness. It is further deposed by him that on 25.02.2011, the samples were handed over to Ct. Krishan for depositing in Excise Lab vide road certificate no. 9/21/11. After that he was transferred from the PS and he handed over the case file to MHC(R).
State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 7/13
11. After Prosecution evidence, statement of accused Sonu@Sunny@Soni recorded under section 313 Cr.P.C in which the stand of the accused is of general denial. Accused has stated that he is innocent and has been falsely implicated in this case by the police officials. However, the accused has opted not to lead defence evidence.
12. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
13. The present case is based on the recovery which took place from the accused Avnish (already expired) and accused Sonu while they were going on a scooter bearing no. DL7SAF3552 carrying the carton containing 192 quarter bottles of the illicit liquor, the scooter being driven by the accused Sonu@Sunny@Soni and the accused Avnish (already expired) was the pillion rider. The recovery of the iilicit liquor was effected by HC Suresh in presence of Ct./ Ranvir and Ct. Praful.
14. It is transpired from the testimony of prosecution witnesse that the place where the accused was allegedly apprehended was a public place and public persons were also passing through the spot which was a busy area and also having shops in its vicinity, however, despite the availability of the pubic persons at the spot, there is complete lack of genuine and sincere efforts on the part of police officials to join the public persons to the proceedings. This casts a doubt on the fairness of the investigation.
State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 8/13
15. Prosecution witnesses deposed that they asked the public persons to join the investigation but none agreed and left the spot without telling their names and addresses. In their cross examination they admitted that the place of recovery was a public place, when admittedly, there was presence of the public persons at the spot, there must be a sincere attempt on the part of the police officials, who are stated to be on patrolling duty, to make the public persons to join the proceedings which was not done for the reasons best known to the said police officials. Neither any action was taken against them nor any notice was given to them. It is well settled that the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. At least in the facts and circumstances of the case, in my opinion, IO could very well have served the passersby with notice in writing to join the police proceedings. At this juncture, it would be pertinent to refer to some case laws.
16. In case titled " N. Ammad Vs. Manager, Emjay High School and others, AIR 1999 SC 50", it was held by Hon'ble Supreme Court as under : ".........From the evidence of PW5 Head Constable, Sat Pal Singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused.
State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 9/13 Likewise, PW6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time of the search of the accused even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal....."
17. Further there is no evidence in the form of DD entry vide which the police officials left the police station for the patrolling duty on 15.02.2011. It further casts doubt over the presence of said police officials who are required to make their arrival or departure entry as per Punjab Police Rules. This failure of the prosecution to bring on record and prove the above noted relevant DD entries also creates reasonable doubt in the prosecution version.
18. As per the version of the prosecution, accused was in possession of illicit liquor. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where, illicit liquor was arranged by the accused. At least some efforts must have been made by the police to State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 10/13 interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same.
19. Moreover, the case property and accused remained in control of police officials till the case property was deposited in the Malkhana. Hence, tampering with the case property cannot be ruled out as the seal remained all along with the police officials.
20. 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 memos Ex. PW1/A bears the FIR number and case details in the same ink in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. No explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memos Ex. PW1/A, when the FIR was registered subsequent to the alleged seizure of liquor from the possession of accused. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the liquor or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the liquor in the manner alleged by the prosecution.
21. The recovery witnesses HC Suresh Kumar was examined as PW1, Ct. Ranvir was examined as PW2 and HC Praful was examined as PW6. These prosecution witnesses could not even State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 11/13 depose about the colour of the scooter on which the accused persons were allegedly carrying the liquor. They could also not tell what was written on the cartons on which the said illicit liquor was kept.
22. The facts that no independent witness was cited or examined, daily diary entry regarding departure has not been proved, possibility of misuse of seal has not been ruled out, contradiction in the testimony of prosecution witnesses and the appearance of FIR number and case particulars on the seizure memos has not been explained, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
23. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. 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.
24. Thus, in view of the foregoing analysis, 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 charges against him in the present case. The accused Sonu@Sunny@Soni State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 12/13 is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act.
25. Put up for furnishing bonds u/s 437A Cr.P.C. for 23.12.2019.
Digitally signed by RASHMI RASHMI GUPTA
Announced in open Court GUPTA
Date:
2019.12.23
13:20:10
on 20th Day of December, 2019 +0530
(Rashmi Gupta)
MM06, North District
Rohini Courts, Delhi/20.12.2019
State Vs. Sonu@Sunny@Soni, FIR No. 37/11, PS Adarsh Nagar, CIS No. 5285637/16 13/13