Delhi District Court
State vs . Dalip on 29 May, 2023
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 167/19
U/s : 33/38 Delhi Excise Act
P.S. : Ranhola
State Vs. Dalip
JUDGMENT:
a) CNR No. : DLWT02-003359-2020
b) Sl. No. of the Case : 1609/20
c) Name & address of the : ASI Tara Chand, No. 518/OD,
complainant. PIS No. 28900620, PS Ranhola, Delhi.
d) Name & address of : Dalip S/o Sh. Tara Chand,
accused R/o 25-B, Gali No. 6, Harphool Vihar,
Baprola, New Delhi.
e) Date of Commission of : 10.03.2019
offence
f) Offence complained off : u/S 33/38 Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Acquitted
i) Date of such order : 29.05.2023
j) State Represented by : Sh. Gurdaulat Singh, Ld. APP
k) Accused Represented by : Jyoti Khairia, Ld.Counsel.
Date of Institution : 24.02.2020
Final arguments heard on : 29.05.2023
Judgment Pronounced on : 29.05.2023.
FIR No: 167/19 State v. Dalip Page No.1/15
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 10.03.2019 at about 10:00 PM in front of H.No. 25-B, Gali No. 6, Harphool Vihar, Baprola, Delhi, within the jurisdiction of PS Ranhola, accused was found in possession of one plastic katta containing 95 quarter bottles of illicit liquor of brand Malta Masaledar Deshi Sharab (180 ML each) for Sale in Haryana only, without any license or permit and committed an offence punishable u/S 33/38 Delhi Excise Act.
2. After investigation, challan for offence u/S 33/38 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33 Delhi Excise Act was framed against accused on 28.03.2022, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined three FIR No: 167/19 State v. Dalip Page No.2/15 witnesses i.e. PW-1 ASI Brahm Prakash, PW-2 ASI Tara Chand and PW-3 HC Vinod Kumar.
5. PW-1 ASI Brahm Prakash, No. 905/OD, DCP Office, Outer District, Delhi, is witness in the present case, who deposed that 10.03.2019, he was posted at PS Ranhola as HC. On that day, he alongwith ASI Tara Chand were on patrolling duty and while patrolling at around 10:00 PM, they reached at Gali No. 6, Harphool Vihar, in front of H.No. 25-B. They saw that one person was going on foot and was having one plastic katta on his shoulder. They got suspicious and apprehended said person whose name later on revealed as Dalip (who is accused), present in the Court that day and correctly identified by the witness. They checked the plastic katta and found that same was containing 95 quarter bottles of illicit liquor. He requested 3-4 persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. ASI Tara Chand separated 4 quarter bottles as sample and sealed it with the seal of TC. Remaining case property was also sealed with the seal of TC and seized the same vide memo Ex.PW1/A. ASI Tara Chand filled form M-29. ASI Tara Chand prepared FIR No: 167/19 State v. Dalip Page No.3/15 the rukka and the same was handed over to him for registration of FIR. Accordingly, he took the same to PS and got FIR registered and came back at the spot alongwith IO. ASI Tara Chand produced accused alongwith recovered case property and prepared relevant documents before the IO. IO prepared site plan at his instance. IO interrogated him and thereafter he was relieved from the spot. IO arrested, personally searched and recorded disclosure statement of the accused vide memos Ex.PW1/B, Ex.PW1/C and Ex.PW1/D. At that stage, MHC(M) stated that case property had been destroyed by the order of Assistant Commissioner of Excise which was Ex.A1. MHC(M) also produced photographs of the case property which was Ex.A2. MHC(M) produced one sample quarter bottle. Same was shown to the witness. Witness correctly identified the same. Same were Ex.P1.
In his cross-examination, witness deposed that he did not remember the DD No. of his departure. It was correct that spot was a residential area. Seal after use was handed over to him and he returned the same on the next day to the IO at PS. No memo was prepared in that regard. He took the rukka to PS at around 11:20 PM and returned back alongwith IO at around 12:10 PM. He alongwith FIR No: 167/19 State v. Dalip Page No.4/15 IO took the case property to the PS but he did not remember the mode of conveyance. No notice was served upon the public persons who refused to join the investigation. It was wrong to suggest that nothing had been recovered from possession of accused and that recovered articles were falsely planted upon accused. It was wrong to suggest that all the proceedings were done while sitting at the PS. It was wrong to suggest that he was deposing falsely.
6. PW-2 ASI Tara Chand, PIS No. 28900620, VIP Security, 1460 Vinay Marg, Delhi, is the witness in the present case, who deposed that on 10.3.2019, he was posted as ASI at PS Ranhola. On that day, he alongwith HC Brahm Prakash were on patrolling duty and around 10 PM when they reached at gali no.6, Harphool Vihar, in front on H. No. 25B. They saw that one person was going on foot and was having one plastic katta on his shoulder. On suspicion they apprehended the said person whose name later on revealed as Dalip ( The accused was present in the court and correctly identified by the witness). He asked him as to what he was carrying in the plastic katta to which he could not give any satisfactory reply. Thereafter, he tried to collected 3-4 passer by to FIR No: 167/19 State v. Dalip Page No.5/15 join the investigation but they denied citing their own reasons. Thereafter, he checked the plastic katta and found that it contained 95 quarter bottles of Asli Santara Masaledar Desi Sharab ( for sale in Haryana only 180 ML). Thereafter, he took out 4 quarter bottles as sample and covered their mouth with a piece of white cloth and sealed them with the seal of TC and put the remaining quarter bottles in the respective plastic katta and covered the mouth of same with white cloth and sealed with the seal of TC. The property was seized vide seizure memo Ex.PW1/A bearing his signature at point A. He handed over the seal to HC Brahm Prakash. Thereafter, he filled the M29 form exhibited as Ex.PW2/A bearing his signature at point A. Thereafter, he prepared the Tehrir Ex.PW2/B bearing his signature at point A. He sent HC Brahm along with Tehrir to PS for registration of FIR and after registration he came back at the spot. The IO was changed and the investigation was handed over to HC Vinod. He could identify the case property if shown to him. The case property was already exhibited as Ex. A1, Ex.A2, and Ex.P1.
In his cross-examination, witness deposed that he did not remember the DD no. by which he left for the patrolling duty. The spot was a residential area. No written notice was served to any FIR No: 167/19 State v. Dalip Page No.6/15 public person. Seal was handed over to HC Brahm Prakash at around 11.15 PM. No seal handing over memo was prepared. HC Brahm Prakash left the spot for registration of FIR at about 11.20 PM and returned after 20-25 minutes. The distance between the PS and the spot is about 1-1.5 KM. He had asked the accused person as to what he was carrying in the plastic katta but he could not give any satisfactory reply and therefore search was made after such inquiry. The case property was sealed at the spot itself. No photographs were taken pertaining to recovery of illicit liquor from possession of accused. He did not know if the alleged liquor was easily available in the market. They finally left the spot at around 12.00 AM when the second IO i.e. HC Vinod came at the spot. HC Vinod recorded his statement on the same day. It was wrong to suggest that he was deposing falsely.
7. PW-3 HC Vinod Kumar, PIS No. 28031579, PS Mundka, Delhi, is the witness / IO in the present case, who deposed that on 10.03.2019, the investigation of the present case was directed to handed over to him. He received the copy of the FIR from HC Brahm and thereafter, he went to the spot where the FIR No: 167/19 State v. Dalip Page No.7/15 investigation was handed over to him. At the spot, he met ASI Tara Chand, he handed over the case property to him and produced the accused Dalip to him. The identity of the accused was not disputed by the Ld. Defence counsel. He prepared the site plan at the instance of ASI Tara Chand. The same was Ex.PW3/A bearing his signature at point A. Thereafter, he recorded the statement of ASI Tara Chand and relieved from the investigation. Thereafter, he informed the accused about the offence he had committed and arrested and personally searched him vide arrest memo Ex.PW1/B and personal search memo Ex.PW1/C both bearing his signature at point B. Accused was arrested at about 12.40 am i.e. on 11.03.2019 and at Gali no. 6 Harphool Vihar. He recorded confession of the accused made to him vide Ex.PW1/D bearing his signature at point B. Thereafter, he got him medically examined at DDU Hospital and whereafter, he was put inside the lock up of the PS to be produced before the Court. The case property was deposited in the PS Malkhana. He could identify the case property, if shown to him. The same was Ex.A1, Ex.A2 and Ex.P1.
In his cross-examination, witness deposed that he reached the spot at about 12.00 midnight. It was correct that case FIR No: 167/19 State v. Dalip Page No.8/15 property was already recovered prior to the time, he reached at the spot. The accused was taken to hospital at about 12.45 am i.e. on 11.03.2019 and reached the PS at about 01.30 am. He remained at the spot for about 1.25 hours.
8. The accused admitted FIR No. 167/19, Certificate 65-B Indian Evidence Act, Chemical Examiner report and statement of Ct. Manohar Lal is Ex.A1 to Ex.A4 respectively u/S 294 Cr.P.C respectively.
9. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
10. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a FIR No: 167/19 State v. Dalip Page No.9/15 settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
11. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused Dalip is entitled to be acquitted for the charge by reasons of reasonable doubts in the prosecution story.
12. To infer the innocence of the accused, it is noticed no public witness has been examined as a witness by the prosecution in the present case qua the recovery of alleged illicit liquor from the possession of the accused. As deposed in testimony of PW-1 and PW-2, they had asked 3-4 passerbys to join the investigation, however they all refused to join the investigation and left without disclosing their names and addresses. PW-1 and PW-2 admitted during cross-examination by Ld. Counsel for accused that no written FIR No: 167/19 State v. Dalip Page No.10/15 notice was given to the independent public persons, who were requested to join the investigation but who refused to join the same. It is clear that no serious attempt was made by the concerned police witnesses to get independent public persons to join the police proceedings of seizure and apprehension of the accused with case property despite availability of such witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings for joining the investigation since after the apprehension of the accused person with case property, there was no possibility of accused person escaping their arrest or crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of apprehension by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public FIR No: 167/19 State v. Dalip Page No.11/15 witnesses in the concerned police proceedings at any of the available stages. 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: " 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". In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: " I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor FIR No: 167/19 State v. Dalip Page No.12/15 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. It is well settled principle of the law that the Investigating Agency 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 FIR No: 167/19 State v. Dalip Page No.13/15 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. Keeping in view the background of the case, defence of the accused, this Court is of the opinion that the accused is entitled to the benefit of doubt. In this regard, reliance can be placed on the case of State of Haryana v. Bhagirath, AIR 1999 SC 2005, the Hon'ble Supreme Court illustrated the doctrine of benefit of doubt in the words "The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the FIR No: 167/19 State v. Dalip Page No.14/15 accused might not have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
14. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, it is held that the prosecution has failed to prove the alleged offence under Section 33/38 Delhi Excise Act against the accused Dalip beyond reasonable doubt. The accused Dalip is hereby acquitted for the charged offence.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 29th day of May, 2023 29.05.2023
FIR No: 167/19 State v. Dalip Page No.15/15