Delhi District Court
State vs Karan on 21 September, 2024
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA
COURT, NEW DELHI
FIR No.: 390/2018
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 16555/2019
State
Vs.
Karan
S/o Sh. Rajender Kumar
R/o H. No. C-70, JJ Colony,
Bindapur, Pocket 4, New Delhi. ..... Accused
S. No. of the case : 16555/2019
The date of offence : 23.07.2018
The name of the complainant : Ct. Pardeep
The name of the accused : Karan
The offence complained : 33 Delhi Excise Act
The plea of the accused : Pleaded not guilty
Argument heard on : 21.09.2024
The date of order : 21.09.2024
The final order : Acquittal
Brief Facts
1. It is the case of the prosecution that on 23.07.2018 HC Pradeep, while on patrolling duty in beat no. 2 reached near A Block, H. No. A/115, JJ Colony, Bindapur, and saw accused outside the said house who was carrying one carton box towards the house and rest of the carton boxes were outside the house. Upon suspicion, he ran towards him and stopped him, asked him what is inside the carton box. Upon asking, he did not give any satisfactory answer and thereafter, he checked the carton boxes and found containing illicit liquor. He informed about this to the DO. Thereafter, PSI Tanish Kumar came to the spot. Thereafter, an FIR bearing no. 390/2018 FIR No.: 390/2018 State versus Karan Page No. 1 of 14 u/s 33 Delhi Excise Act was registered at PS Dabri. Investigation of the case was handed over to Investigating Officer SI Tanish Kumar who filed the chargesheet.
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Karan. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against him, to which he had pleaded not guilty and claimed trial.
4. The prosecution examined the following witnesses:
i. SI Tanish Kumar was examined as PW1. He stated that he was posted at PS Dabri as PSI. On 23.07.2018, he received DD No. 36B Ps Dabri regarding the recovery of illicit liquor. Thereafter, he reached the spot of incident i.e. H.No. A/115, J.J. colony, Pocket no. 4, Bindapur, New Delhi, where he met with Ct. Pardeep. Ct. Pardeep had apprehended the accused namely Karan @ Sunny s/o Sh. Rajender Kumar r/o C-70, J.J. colony, Pocket-4, Bindapur, New Delhi with the boxes of illicit liquor. Then, he asked 4-5 public passers to join the investigation and requested them to join the investigation. Due to their personal reasons, they refused to join the investigation and left the spot without giving their names and addresses. Thereafter, he recorded the statement of Ct. Pardeep Ex.PW1/A bearing his signatures at point A. Thereafter, he checked the carton FIR No.: 390/2018 State versus Karan Page No. 2 of 14 boxes of illicit liquor and upon counting he found 60 carton boxes of illicit liquor as per seizure memo Ex.PW1/B bearing his signatures at point A. He filled form M29 at the spot Ex.PW1/C bearing his signatures at point A. He prepared tehrir Ex.PW1/D bearing his signatures at point A and got the FIR registered through DO of PS and prepared site plan Ex.PW1/E bearing his signatures at point A. He recorded disclosure statement of accused Ex.PW1/F bearing his signatures at point A. He arrested and conducted personal search of accused Ex.PW1/G and Ex.PW1/H bearing his signatures at point A respectively. They shifted the case property and accused to PS. Case property was deposited at malkhana alongwith relevant documents and accused was produced before the court after conducting his medical examination from where he was sent to JC. He sent samples to excise laboratory vide RC No. 166/21/18 Mark A. (Accused is present in court today and correctly identified by the witness.) (At this stage, MHC(M) produced destruction order of the case property and taken on record and Ex.A1 (OSR).) (MHC(M) has also produced samples of case property Ex.A2 (colly). Same are shown to the witness and witness correctly identified the samples of case property).
ii. In his cross examination PW 1 affirmed that he did not join any independent public person in the investigation or cited them as witness or that he did not place on record all relevant DD Entries pertaining to the present case or that he had not enquired about the source of illicit liquor or FIR No.: 390/2018 State versus Karan Page No. 3 of 14 that he had not prepared handing over memo of seal. He denied that nothing was recovered from the possession of the accused or that case property were planted upon the accused.
iii. HC Pradeep was examined as PW2. He stated that on 23.07.2018, he was posted at PS Dabri as Constable. On that day, he was on patrolling duty in beat no. 2. When he reached near A Block, H. No. A/115, JJ Colony, Bindapur, he saw accused outside the said house who was carrying one carton box towards the house and rest of the carton boxes were outside the house. Upon suspicion, he ran towards him and stopped him, asked him what is inside the carton box. Upon asking, he did not give any satisfactory answer and thereafter, he checked the carton boxes and found containing illicit liquor. He informed about this to the DO. Thereafter, PSI Tanish Kumar came to the spot. IO asked 4-5 public person to join the investigation but they refused to join the same by stating their personal reasons and without stating their names. He handed over abovesaid case property full of illicit liquor and accused to the IO/PSI Tanish Kumar. IO inspected the said 60 carton boxes which was found, from which one sample of each brand was taken as sample, the same was sealed with the seal of DRY and rest of the quarter bottles were placed in the respective carton boxes and then in the plastic kattas and sealed with the seal of DRY. IO prepared seizure memo vide already Ex. PW1/B bearing his signature at point B. IO filled M29 form. After that IO recorded his statement FIR No.: 390/2018 State versus Karan Page No. 4 of 14 which is already Ex. PW1/A (bearing his signature at point B) and prepared the rukka in his presence already Ex. PW1/D. After that IO handed over seal to him and gave me rukka for registration of FIR. Thereafter, he went to PS and got the FIR registered, after sometime, he came back at the spot and handed over copy of FIR and original rukka to IO. IO prepared the site plan at his instance already Ex. PW1/E bearing his signature at point B, IO arrested the accused vide arrest memo already Ex.
PW-1/G bearing his signature at point B, personal searched the accused vide memo already Ex. PW-1/H bearing his signature at point B. IO recorded disclosure statement of accused vide memo already Ex. PW1/F (bearing his signature at point B). IO recorded his statement u/s 161 Cr.P.C. He can identify the accused. (Accused is present in the court and correct identified by the witness.) He can identify the case property, if shown to him. (At this stage, MHC(M) has produced the samples of case property. The same is correctly identified by the witness. The same is already Ex.A2 (colly). MHC(M) has also produced a copy of destruction order. The same is already on record and same is already Ex. A1 (OSR)).
iv. In his cross examination PW 2 stated that IO came at the spot at about 10:30 AM and left the spot at about 03:30 PM. He went to PS for registration of FIR at about 12:40 PM and came back at the spot at about 01:30 PM. There were houses and shops near the spot. No notice was served to any public person. No seal handing over memo FIR No.: 390/2018 State versus Karan Page No. 5 of 14 was prepared in his presence. He affirmed that he do not know his departure or arrival entries pertaining to the day of incident. Case property was taken to PS on private tempo. He cannot tell the number of the tempo. He denied that nothing incriminating has been recovered from the possession of the accused or at the instance of accused or that all the proceedings had been conducted while sitting at PS or that he is deposing falsely.
5. Statement of accused under Section 294 CRPC was recorded and he admitted FIR No 390/2018 PS Dabri Ex P1, DD No 36B dated 23.07.2018 Ex P2, DD No 14B dated 23.07.2018 Ex P3, Excise Lab Report as Ex P4. Thus, the witness at serial No 2, 4 and 5 were dropped.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC r/w Section 281 CrPC was recorded on 03.09.2024 wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was not found in possession of illicit liquor. That he was falsely implicated in this present case. That she is innocent and all the witnesses deposing against him are interested witnesses. The accused chose not to lead any evidence in his defence.
7. It is argued by Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
FIR No.: 390/2018 State versus Karan Page No. 6 of 14
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court
10. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed.
I. Non-joining of Public Witnesses
11. One of the arguments of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the testimony of PW 1 and PW 2 reveals that they have categorically stated that there were residential houses and public persons were passing by. They had FIR No.: 390/2018 State versus Karan Page No. 7 of 14 also asked public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws 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. However, no public person has been joined by the IO in the present case.
13. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola (Emphasis supplied).
14. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole FIR No.: 390/2018 State versus Karan Page No. 8 of 14 ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
II. No seal Handing over memo.
15. PW 1 and PW 2, both affirmed that no handing over memo of the seal was prepared. Thus, in the instant case no handing over memo of the seal was prepared which can suggest that case property remained intact and there is no tampering with the same. Further, no seal handing over memo was brought on record during the course of trial.
16. As per evidence available on record, the seal after use was not given to any independent public person. Further, there is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station or not. In such case, tampering with case property can also not be ruled out. As a result, the benefit of doubt has to be given to the accused. Reliance is placed upon the decision in Safiullah v. State, (1993) 49 DLT 193, where the Hon'ble High Court of Delhi observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. ...... Once a doubt is created in the preservation FIR No.: 390/2018 State versus Karan Page No. 9 of 14 of the sample the benefit of the same should go to the accused."
III. Discrepancy in the case qua Seizure Memo and Form M 29.
17. There exists yet another discrepancy in the case of the prosecution.
PW 1/IO in his examination stated that he prepared the seizure memo and Form M 29 and thereafter he recorded the statement of PW 2 and prepared the tehrir and after the preparation of tehrir he got the FIR registered through PW2. The same has been stated by PW 2 in his examination. Thus, it is clear from the testimony of PW 1/IO and PW 2 that the seizure memo and Form M 29 were prepared before the tehrir/original rukka was handed over by PW1 IO to PW2 for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the seizure memo and Form M 29, however, surprisingly it bears the FIR number and it is thus worth wondering that if the FIR was never registered at the time when the seizure memo and Form M 29 were prepared, how the FIR number came to be noted in the seizure memo and Form M 29 since the number of the FIR could have come to knowledge of PW 1 only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo and Form M 29, which came into existence before registration of the FIR.
18. In this context, Hon'ble High Court of Delhi in Pawan Kumar v.
The Delhi Administration, 1987 SCC OnLine Del 290 , has observed as under in paragraph 6:
"Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared.
FIR No.: 390/2018 State versus Karan Page No. 10 of 14 Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
FIR No.: 390/2018 State versus Karan Page No. 11 of 14
19. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its FIR No.: 390/2018 State versus Karan Page No. 12 of 14 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 contraband in the manner alleged by the prosecution."
20. In the light of the abovesaid judgments, the mentioning of the number of FIR in the seizure memo creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said document was prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution the benefit of which has to be given to the accused.
IV. Delay in dispatching Samples to Excise Laboratory.
21. Perusal of the record reveals that Form M 29 was dispatched to the Chemical Examiner on 28.08.2018 whereas the Form M 29 was prepared by IO on 23.07.2018. Thus, there is a delay of about 36 days in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers FIR No.: 390/2018 State versus Karan Page No. 13 of 14 by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
22. In the instant case, alleged recovery was made on 23.07.2018 yet the samples were sent to the Excise Control Laboratory for examination on 28.08.2018, i.e., after about 36 days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness. Thus, it creates a doubt on the prosecution version.
23. Thus, in light of the above discussions which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that illicit liquor was recovered from the possession of the accused. The accused Karan S/o Sh. Rajender Kumar is, therefore, acquitted of the offence u/s 33 Delhi Excise Act.
Digitally signed by HARSHALAnnounced in the open court on 21.09.2024. HARSHAL NEGI NEGI Date:
2024.09.21 14:55:53 +0530 (Harshal Negi) JMFC-02/Dwarka Court, New Delhi, 21.09.2024 It is certified that the present judgment runs into 14 pages and Digitally signed each page bears my signature. HARSHAL by HARSHAL NEGI NEGI Date: 2024.09.21 14:55:58 +0530 (Harshal Negi) JMFC-02/Dwarka Court, New Delhi, 21.09.2024 FIR No.: 390/2018 State versus Karan Page No. 14 of 14