Delhi District Court
State vs Pappu Paswan on 20 November, 2024
State Vs. Pappu Paswan
IN THE COURT OF MS. PAYAL SINGAL
JUDICIAL MAGISTRATE FIRST CLASS-09, CENTRAL,
TIS HAZARI COURTS, DELHI
State Vs Pappu Paswan
FIR No. 40/2019
PS Lahori Gate
U/s 33 Delhi Excise Act
Cr. Case No. 11287/2019
JUDGEMENT
1) CNR Number of the case : DLCT02-021854-2019
2)The date of commission of offence : 09.03.2019
3) The name of the complainant : ASI Shyamender
4) The name & parentage of accused : Pappu Paswan s/o Sh. Mahant Paswan
5) Offence complained of : u/s 33 Delhi Excise Act
6) The plea of accused : Not guilty
7) Final order : Acquittal Date of Institution : 04.09.2019 Judgment reserved on : 07.11.2024 Judgment announced on : 20.11.2024 BRIEF FACTS:
1) Vide this judgment, I shall decide the fate of the abovementioned FIR.
2) The brief case of the prosecution is that on 09.03.2019, at about 12.05 a.m. under Pull Mithai, near DRP Lines Jhuggis, Lahori Gate, Delhi, within the jurisdiction of PS. Lahori Gate, the accused was found in possession of 4 plastic kattas (each bag containing 150 quarter bottles of illicit liquor) total containing 235 quarter bottles of illicit liquor, each bearing label 'Falcon santara masaledar desi sharab' For sale in Digitally signed Haryana only, 180 mL each without any license, permit or pass and in PAYAL by PAYAL SINGAL SINGAL Date:
2024.11.21 16:45:20 +0530 FIR No. 40/2019, PS L. Gate Page No. 1 of 10 State Vs. Pappu Paswan contravention of the notification issued by the Delhi government. Thereby, the accused has committed an offence punishable u/s 33 Delhi Excise Act, 2009.
3) After completion of the investigation, the chargesheet was filed in the court, upon which cognizance was taken u/s 33 Delhi Excise Act and after complying with the provisions of Section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), arguments on the point of charge were heard and the formal charge was framed u/s 33 Delhi Excise Act, 2009 against the accused Pappu Paswan on 27.03.2023 to which he pleaded not guilty and claimed trial. Thereafter, the case was proceeded further for prosecution evidence.
PROSECUTION EVIDENCE:
4) Before proceeding with the prosecution evidence, it is relevant to mention here that during the course of trial, the accused had admitted the copy of FIR No.40/2019 (Ex. AD1), endorsement on rukka (Ex. AD2), certificate u/s 65B Indian Evidence Act (Ex. AD3), DD No.68B dated 08.03.2019 (Ex.AD4), Excise Lab Report dated 10.05.2019 (Ex.AD5) and RC no. 30/21/19 dated 03.04.2019 (Ex. AD6). Thus, the said witnesses were not summoned.
5) Accordingly, to bring home the guilt of the accused, the prosecution examined the remaining four witnesses in support of its case i.e. PW-1 SI Shyamender, PW-2 HC Vinay Tyagi, PW-3 HC Mahatap and PW-4 Rt. SI Veerpal. Now, the testimonies of all these witnesses shall be discussed one by one.
6) PW-1 SI Shyamender deposed that on 09.03.2019, he was posted at PS Lahori Gate as ASI and was on patrolling duty with HC Mahatap when they reached under Mithai Pull near DRP Lines Jhuggi, Lahori Gate, they saw one person carrying a katta on his shoulder who upon seeing them, threw the katta and starting running towards jhuggi. PW-1 then stated that upon suspicion, they apprehended the said person and when upon inquiry, he could not provide any satisfactory reply and revealed Digitally signed PAYAL by PAYAL SINGAL SINGAL 2024.11.21 Date:
FIR No. 40/2019, PS L. Gate Page No. 2 of 10 16:45:43 +0530 State Vs. Pappu Paswan his name as Pappu i.e. the accused. Thereafter, they checked the place where he had thrown the kattas and upon checking, four kattas were found there, each containing 150 quarter bottles of illicit liquor with label "Falcon Santara Msaledar desi sharab, for sale in Haryana only"
upon them. PW-1 also deposed that thereafter, he took out one sample bottle from each katta, their caps were tied with a white cloth and sealed with the seal of S and given serial No. S1-S4. Thereafter, he kept all the sample bottles in one katta and marked the katta as S1 and it was sealed with the seal of S and the remaining quarter bottles were kept back in the respective kattas, the kattas were tied with white cloth and sealed with the seal of S and given serial Nos. A1 to A4. PW-1 then stated to have prepared M-29 form on the spot, Ex. PW-1/A and to have seized the case property vide seizure memo, Ex.PW-1/B Then, he stated that after use, the seal was handed over to Ct Mehtab vide handing over memo, Ex. PW-1/C. PW-1 then deposed to have prepared the tehrir, Ex.PW-1/D and handing over the same to HC Mehtab for registration of FIR who returned to the spot after some time with ASI Veerpal, computerized copy of FIR and original tehrir. Then, he handed over the accused and the case property to ASI Veerpal and also narrated the entire incident to him. Lastly, PW-1 deposed ASI Veerpal prepared the site plan at his instance. The said witness correctly identified the accused and the case property, Ex.P2. The copy of the order vide which the case property was destructed was Ex.P1.
7) PW-2 ASI Vinay Tyagi deposed that on 03.04.2019, he was posted as HC at PS Lahori Gate and upon the request of the IO, Ct Ashok collected the sealed sample from him for depositing in the Excise Lab, ITO vide RC No. 30/21/19, Ex. PW-2/A. He further deposed that Ct Ashok took the receipt of deposition and handed over the same to him and that the case property was not tampered while with him. Despite opportunity, the said witness was not cross-examined on behalf of the Digitally signed by accused. PAYAL PAYAL Date:
SINGAL SINGAL 2024.11.21 16:46:02 +0530 FIR No. 40/2019, PS L. Gate Page No. 3 of 10 State Vs. Pappu Paswan
8) PW-3 HC Mehtab deposed that on 09.03.2019, he was posted at PS Lahori Gate as HC and was on night patrolling duty with SI Shyamender, when they reached under Mithai Pull near DRP Lines Jhuggi, Lahori Gate, they saw one person carrying a katta on his shoulder who upon seeing them, threw the katta and starting running towards jhuggi. PW-3 then stated that upon suspicion, they apprehended the said person and brought im back to the spot and when upon inquiry by SI Shyamender, he could not provide any satisfactory reply regarding the contents of the sack and revealed his name as Pappu i.e. the accused. Thereafter, SI Shyamender checked the place where he had thrown the kattas and upon checking, four kattas were found there, each containing 150 quarter bottles of illicit liquor with label "Falcon Santara Msaledar desi sharab, for sale in Haryana only"
upon them. PW-3 also deposed that thereafter, SI Shyamender took out one sample bottle from each katta, their caps were tied with a white cloth and sealed with the seal of S and given serial No. S1-S4. Thereafter, SI Shyamender kept all the sample bottles in one katta and marked the katta as S1 and it was sealed with the seal of S and the remaining quarter bottles were kept back in the respective kattas, the kattas were tied with white cloth and sealed with the seal of S and given serial Nos. A1 to A4. PW-3 then stated that SI Shyamender prepared M-29 form on the spot, Ex. PW-1/A and seized the case property vide seizure memo, Ex.PW-1/B Then, he stated that after use, the seal was handed over to him vide handing over memo, Ex. PW-1/C. PW-3 then deposed that SI Shyamender prepared the tehrir, Ex.PW-1/D and handing over the same to him for registration whereafter, he left for the PS for the same. thereafter, PW-3 deposed that after some time, he returned to the spot with ASI Veerpal, computerized copy of FIR and original tehrir. Then, SI Shyamender handed over the accused and the case property to ASI Veerpal and also narrated the entire incident to him. Lastly, PW-3 deposed that ASI Digitally signed by PAYAL Veerpal arrested the accused vide memo, Ex.PW-3/A; conducted his PAYAL SINGAL Date:
SINGAL 2024.11.21 16:46:17 +0530 FIR No. 40/2019, PS L. Gate Page No. 4 of 10 State Vs. Pappu Paswan personal search vide memo, Ex.PW-3/B and recorded the disclosure statement of the accused, Ex.PW-3/C. The said witness correctly identified the accused and the case property, Ex.P2. The copy of the order vide which the case property was destructed was Ex.P1.
9) PW-4 Retd. SI Veerpal deposed that on 09.03.2019, he was posted as ASI at PS Lahori gate when the DO marked him the investigation of the present case. Then, PW-4 stated to have reached the spot with Ct Mehtab and meeting ASI Shyamender there who produced the case property, the accused and the prepared documents to him and also narrated to him the entire incident. Thereafter, PW-4 deposed to have prepared the site plan at the instance of ASI Shyamender, Ex.PW4/A. Then, PW-4 stated to have arrested the accused vide arrest memo, Ex.
PW-3/A; personally searched the accused vide search memo, Ex. PW-3/B and recorded his disclosure statement, Ex. PW-3/C. Then, PW-4 stated to have returned to the PS with the accused, the case property and Ct Mehtab. Then, PW-4 stated that on 03.04.2019, he sent Ct Ashok to deposit the sample of case property to Excise Lab and prepared the challan and filed it before the court. The said witness correctly identified the accused and the case property.
10) All the witness were duly cross examined by the Ld. Defence counsel wherein some material facts have come on record which shall be duly dealt with in the reasoning part of the judgment.
STATEMENT OF THE ACCUSED:
11) After recording the testimony of all the witnesses, the PE was closed and thereafter, the statement of the accused u/s 313 Cr.P.C. was also recorded on 07.11.2024. In the said statement, the accused denied all the allegations levelled against him and stated that he had been falsely implicated in the present case. The accused further stated that he did not want to lead any DE and accordingly, the matter came up for final arguments. Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2024.11.21 16:46:33 +0530 FIR No. 40/2019, PS L. Gate Page No. 5 of 10 State Vs. Pappu Paswan FINAL ARGUMENTS:
12) Arguments on behalf of the accused were advanced by ld. counsel Sh.
Upender Kumar and by Sh. Rajinder Kumar, Ld. APP on behalf of the State.
13) It was argued by the Ld. counsel for the accused that the prosecution had failed to prove the guilt of the accused beyond all reasonable doubt. It was argued that the non-joinder of public witnesses despite availability and non-handing over of the seal to any independent witness cast a shadow of doubt upon the prosecution story. It was also argued that no photography/videography of the case property was done on the spot, in the absence of which, it cannot be said that the illicit liquor was recovered from the possession of the accused. Accordingly, it was argued that a reasonable doubt had been raised in the case of the prosecution, the benefit of which was necessarily to go to the accused.
14) Per contra, it was argued by the Ld. APP for the state that there were ocular and documentary evidence on record to bring home the guilt of the accused. It was argued that all the prosecution witnesses had corroborated the testimony of each other and no material contradictions were brought on record by the accused. Accordingly, it was argued that the state had proved its case beyond reasonable doubt and that the accused be convicted of the offence u/s 33 Delhi Excise Act.
15) I have heard the arguments from both the sides and have carefully perused the record.
REASONS FOR THE JUDGMENT:
16) It is settled proposition of criminal jurisprudence that it is for the prosecution to establish its case beyond all reasonable Digitally signed by PAYAL doubts. It is for the prosecution to travel the entire distance from PAYAL SINGAL Date:
SINGAL 2024.11.21 16:46:47 +0530 FIR No. 40/2019, PS L. Gate Page No. 6 of 10 State Vs. Pappu Paswan 'may have' to 'must have'. If the prosecution case appears to be improbable or lacks credibility, the benefit of doubt, necessarily has to go to the accused.
17) In the present case, the accused has been charged for committing an offence punishable under Section 33 Delhi Excise Act and all prosecution witnesses are official witnesses.
In order to prove the guilt of the accused, the prosecution had to prove that the accused was found in possession of illicit liquor in contravention of the applicable law which in the opinion of the court, the prosecution has miserably failed to do.
18) The prosecution has examined the police witnesses to prove that illicit liquor was recovered from the possession of the accused. Admittedly, the alleged spot of recovery is a public place, as has been deposed by all the witnesses and as is also evident from the site map, however, the witnesses have not deposed regarding any concrete effort to join public witnesses. Though it has come in the testimony of PWs that the public persons were asked to join the investigation, however, the said persons refused to join the investigation, citing one or the other difficulties and due to paucity of time, no notices could be served upon them. Ergo, it can be said that public witnesses were admittedly not joined in investigation, although available. Taking a pause here, I find it relevant to note the judgment of Hem Raj v. State of Haryana AIR 2005 SC 2110, wherein it has been observed that :
"The fact that no independent witness though available, Digitally signed was examined and not even an explanation was sought PAYAL by PAYAL SINGAL to be given for not examining such witness is a serious SINGAL Date:
2024.11.21 infirmity in the prosecution case. Amongst the 16:47:04 +0530 FIR No. 40/2019, PS L. Gate Page No. 7 of 10 State Vs. Pappu Paswan independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance.".
19) Furthermore, all witnesses have admitted that after the case property was sealed, the seal was handed over by SI Shyamender to HC Mehtab and handing over memo of the seal was also prepared, however, it has not come on record as to where the seal now is. Furthermore, in present case the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh v. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
20) Moreover, as per the version of the prosecution, accused was in possession of illicit liquour without any licence/permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to find out about the source from Digitally signed where the same was arranged by the accused. At least some PAYAL by PAYAL SINGAL Date: SINGAL 2024.11.21 16:47:31 FIR No. 40/2019, PS L. Gate Page No. 8 of 10 +0530 State Vs. Pappu Paswan efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same but the chargesheet is completely silent upon the said fact.
21) Then, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. In the case at hand, only the DD No.68B dated 08.03.2019, Ex. AD4 has been relied upon by the prosecution by which the HC Mehtab and ASI Shyamender were on patrolling duty but no other entry/entries have been proved on the record by the prosecution. In absence of such proof, the court finds it hard to believe the prosecution version and the testimony of the police officials. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
22) Lastly, it also assumes relevance that no photography or videography of the case property was done at the spot to show that the illicit liquor was recovered from the possession of the accused.
23) Therefore, in view of the discussion made herein above and the facts and circumstances of the present case, the court is of the considered opinion that the prosecution has failed to prove Digitally signed by PAYAL PAYAL SINGAL the guilt of the accused beyond reasonable doubt. Hence, Date:
SINGAL 2024.11.21 16:47:51 +0530 FIR No. 40/2019, PS L. Gate Page No. 9 of 10 State Vs. Pappu Paswan accused Pappu Paswan stands acquitted of the offence under section 33 of Delhi Excise Act, 2009 that he has been charged with.
Announced in open court This judgment contains 10 pages and each page is signed by me.
(Announced in open Court
on 20th November 2024 ) Digitally signed
by PAYAL
PAYAL SINGAL
SINGAL Date:
2024.11.21
(The judgment contains 10 pages 16:48:03 +0530
and all the pages bear my signatures)
(Payal Singal)
JMFC-09/Central District
Delhi/20.11.2024
FIR No. 40/2019, PS L. Gate Page No. 10 of 10