Delhi District Court
State vs Mohd Naufal @ Raju on 23 February, 2024
IN THE COURT OF SH. NIDHISH KUMAR MEENA
MM-10, DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-056447-2021
Cr. Case 14475/2021
STATE Vs. MOHD NAUFAL @ RAJU
FIR No. 456/2020
P.S Kapashera
23.02.2024
JUDGMENT
Case No. : 14475/2021
Date of commission of offence : 10.10.2020
Date of institution of the case : 24.11.2021
Name of the complainant : Narender Singh
Yadav
Name of accused and address : 1. Mohd. Naufal @ Raju S/o Mohd. Azam R/o Jagdish Yadav Ka Makan, Gali No. 12, Kapashera, New Delhi.
2. Mohd. Javed Akhtar S/o Sh. Mohd. Nasir R/o 1251/52, Jagdish Bhawan, Gali No. 12, Behind DC Office, Kapashera, New Delhi.
Offence complained of or proved : U/s 33 and 52(2) Delhi Excise Act & State Vs. Mohd. Naufal @ Raju & Anr. Page No.1 / 21 Section 3/181 & 5/180 MV Act.
Plea of the accused : Pleaded not guilty Final order : Acquitted Date when reserved for judgment : 02.02.2024 Date of judgment : 16.02.2024 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused persons Mohd. Naufal @ Raju and Mohd. Javed Akhtar (hereinafter referred to as the accused no. 1 and accused no. 2), pursuant to charge sheet filed qua them under Section 33 and 52(2) of Delhi Excise Act, 2009 & Section 3/181 & 5/180 MV Act subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 456/2020.
2. It is the case of the prosecution that on 10.10.2020, at about 06.15 a.m, at Gali No. 12 near DC Office, Kapashera, New Delhi, the accused Mohd. Naufal was found driving one scooty bearing registration no. DL11SV8792 and in the said scooty, the accused Mohd. Naufal found in possession of one blue coloured cloth bag containing two boxes of illicit liquor, out of which two boxes, one box having label of "Associated Distilleries a unit of Globus Spirits Ltd" and was containing 50 plastic quarters of illicit liquor having label of "Taza Santra Special Masaledar Desi Sharab" for sale in Haryana only and the other box was having label of "Seagram Quality Imperial Blue State Vs. Mohd. Naufal @ Raju & Anr. Page No.2 / 21 hand picked grain whiskey", which was containing 48 glass quarters of illicit liquor having label of "Imperial blue" for sale in Haryana only 180 ml" and from the scooty diggi, 50 plastic quarters were found having label of "Special Masaledar Desi Sharab 180 ml", without any permit or licence and the accused Mohd. Naufal was found driving the abovesaid scooty without any valid driving license. Further, ownership details of scooty was enquired from Motor Licensing Office, which came out to be registered in the name of Md. Javed Akhtar i.e. Accused No.2 in the present case. Accused No.2 allowed the said scooty to be driven by one Mohd Naufal @ Raju who was found carrying illicit liquor in the abovesaid scooty without any permit or license. The same were seized by the police officials and thereafter, an FIR was registered qua the accused. After investigation, the police filed the present charge sheet against the accused for commission of offence punishable u/s 33 and 52(2) of Delhi Excise Act, 2009 & Section 3/181 & 5/180 MV Act.
3. Complete set of charge sheet and other documents were supplied to the accused persons. After hearing the arguments, charge for offence punishable u/s 33 and 52(2) of Delhi Excise Act, 2009 & Section 3/181 & 5/180 MV Act was framed qua both the accused persons to which they pleaded not guilty and claimed trial. Further, the accused persons, vide their statement u/s 294 Cr.P.C, had admitted the genuineness of copy of FIR No. 456/2020 along-with certificate u/s 65B of IEA Ex. A1(colly), DD No. 22A dated 10.10.2020 and DD No. 69A dated 16.08.2021 Ex. A2(colly), vehicle particulars by Transport Authority, Rohini Ex. A3, Notice u/s 133 MV Act and reply Ex.
State Vs. Mohd. Naufal @ Raju & Anr. Page No.3 / 21A4, RC No. 193/21/20 Ex. A5, excise lab report Ex. A6 and the school record of UMS, Rewahi, Gohati School Ex. A7 (colly).
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined four witnesses in total.
5. PW-1 was HC Narender, who deposed that on 10.10.2020, he alongwith Ct. Rajender were on patrolling duty vide DD No. 22A dated 10.10.2020. One informer came to him at Kapashera red light and he stated that in one black scooty illicit liquor from gurugram has been brought to Delhi and if raid is conducted the said person can be apprehended, upon which he informed the SHO in this regard, who gave order to make a raiding team and upon the directions of the SHO, thereafter he asked 3-4 public persons to join the raiding party but no public persons join the investigation. Thereafter, he alongwith Ct.
Rajender prepared one raiding team consisting of him, Ct. Rajender and the informer. Due to the paucity of time, no notice was served to public person. Thereafter he alongwith raiding party reached DC office Kapashera and after reaching there they started looking for the black scooty. At about 6:15 a.m, one black scooty bearing no. DL11SV8792 was found coming from Gurgaon side and upon that he gave signal to stop the said scooty on which the driver of scooty tried to flee from the spot. Thereafter, the said PW alongwith the help of Ct. Rajender apprehended the driver of scooty and upon asking, he disclosed his name as Mohd. Naufal. Thereafter, the said PW further State Vs. Mohd. Naufal @ Raju & Anr. Page No.4 / 21 deposed with respect to the investigation carried out by the IO in the present case after reaching at the spot. Through him, form M- 29 was exhibited as Ex. PW1/A, seal handing over memo was exhibited as Ex. PW1/B, seizure memo of illicit liquor was exhibited as Ex. PW1/C, seizure memo of scooty was exhibited as Ex. PW1/D, rukka was exhibited as Ex. PW1/E, taking seal over memo was exhibited as Ex. PW1/F, sample was property was exhibited as Ex. P1 (colly) and photographs of the case property was exhibited as Ex. P2.
6. PW-2 was SI Inderjeet Sharma, who deposed that on 28.06.2021, the investigation of this case was assigned to him for further investigation. During investigation, on 16.07.2021 accused Mohd. Naufal @ Raju gave the photocopy of school leaving certificate to him. Thereafter, the said PW further deposed with respect to the investigation carried out by him in the present case after reached at the spot. Through him, seizure memo of copy of school leaving certificate was exhibited as Ex. PW2/A, intimation regarding seizure of vehicle and illicit liquor was exhibited as Ex. PW2/B, notice u/s 41A to Mohd. Javed was exhibited as Ex. PW2/C, notice u/s 160 Cr.P.C upon accused Mohd. Naufal was exhibited as Ex. PW2/D.
7. PW-3 was Ct. Rajender, who deposed on similar lines as PW-1 HC Narender and further deposed with respect to the investigation carried out by the IO in the present case after reaching at the spot. Through him, arrest memo, personal search memo and disclosure statement of accused Mohd. Naufal was exhibited as Ex. PW3/A, Ex. PW3/B and Ex. PW3/C. State Vs. Mohd. Naufal @ Raju & Anr. Page No.5 / 21
8. PW-4 was ASI Binesh Kumar i.e. the first IO in the present case, who deposed that on 10.10.2020, the investigation of this case was assigned to him. He received the copy of FIR and original tehrir from Ct. Rajinder. Thereafter, he alongwith Ct. Rajender went to the spot where he met HC Narender who present with one person. Thereafter, HC Narender handed over the accused, the seized illicit liquor and seized scooty alongwith documents to him. Thereafter the said PW further deposed with respect to the investigation carried out by him in the present case after reached at the spot.
9. On account of admission of accused u/s 294 Cr.P.C, PW at serial no. 3 ASI Hans Raj, PW at serial no. 4 Sh. Rajesh Joshi, PW at serial no. 5 Mohd. Tabrez and PW at serial no. 6 MLC and PW at serial no. 8 Ct. Sandeep, as per list of prosecution witnesses were dropped from the list of prosecution witnesses and the formal proof of the documents sought to be proved by them was dispensed with.
10. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
11. Statement of the accused persons u/s 281 Cr.P.C read with Section 313 Cr.P.C. was recorded separately in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them and stated that they have been State Vs. Mohd. Naufal @ Raju & Anr. Page No.6 / 21 falsely implicated in the case. Accused persons further opted to not lead evidence in his defence, hence DE was closed.
FINAL ARGUMENTS:
12. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence Section 33 and 52(2) of Delhi Excise Act, 2009 & Section 3/181 & 5/180 MV Act has been proved beyond doubt.
13. Per contra, Ld. Counsel for accused persons has stated that there is no legally sustainable evidence against the accused persons and that the accused persons have been falsely implicated by the police officials and the recovery of illicit liquor has been planted upon accused Mohd. Naufal. Arguing further, Ld. counsel has inter-alia submitted that no public witnesses were joined by the police officials during investigation and no recovery photographs were also taken on record by the investigating officer. It has also been argued that even if it is assumed that the police officials had genuinely made the alleged recovery from the accused Mohd. Naufal, the prosecution has failed to prove that 148 quarter bottles of illicit liquor were recovered from the accused Mohd. Naufal, as only a small fraction was sent to the Excise Department which is within the permission limit, consequently, failed to prove that the accused was found in possession of alcohol, beyond the permissible State Vs. Mohd. Naufal @ Raju & Anr. Page No.7 / 21 limits. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused be given the benefit of doubt and is therefore, entitled to be acquitted.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
14. Arguments adduced by Ld. APP for State and Ld. Counsel for accused have been heard. The evidence and documents on record have been carefully perused.
15. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused persons Mohd. Naufal and Mohd. Javed have been indicted for the offence u/s 33 and 52(2) Delhi Excise Act & Section 3/181 & 5/180 MV Act.
16. In order to prove the offence under Section 33 of the Delhi Excise Act, the prosecution must establish the fulfillment of all the essential ingredients of the offence. The contents of Section 33 of the Delhi Excise Act are reproduced as follows:
"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 licence, 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;State Vs. Mohd. Naufal @ Raju & Anr. Page No.8 / 21
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."
It is also significant to note that Section 52 of Delhi Excise Act lays down a rebuttable presumption under section 52(1) which goes as follows:
"Section 52. Presumption as to commission of offence in certain cases:
1. In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
Further accused no.2 is charged with offence under section 52(2) of the same act which is as follows:
"Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
17. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to State Vs. Mohd. Naufal @ Raju & Anr. Page No.9 / 21 punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, as discussed hereinafter, careful scrutiny of the evidence placed on record brings to light the fact that the case of the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible, owing to which, no presumption, as provided for under Section 52 of the Act, can be raised against the accused in the present case.
i). Doubtful Seizure Memo and Form M-29.
18. A careful reading of the testimony of PW-1 and PW- 3 reflects that HC Narender had seized the illicit liquor vide seizure memo Ex. PW 1/C and filled in the form M 29 Ex. PW1/A, all at the spot and thereafter, had prepared the rukka Ex. PW1/E and handed over the same to Ct. Rajender, for registration of FIR. The narration of such a chronology of events leads to the irresistible conclusion that the seizure memo of the liquor and Form M-29 were prepared at the spot, prior to the rukka being State Vs. Mohd. Naufal @ Raju & Anr. Page No.10 / 21 sent to the police station for registration of the FIR and that the FIR was, therefore, admittedly registered after the preparation of these documents. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Ct. Rajender. Thus, ordinarily, the FIR number should not find mention in the seizure memo and Form M-29, both of which documents came into existence before registration of the FIR. However, quite surprisingly, perusal of seizure memo and Form M-29 reflects the mentioning of the full particulars of the FIR thereupon, which fact has remained unexplained on behalf of the prosecution. It is not even the case that the same, on the face of it, appears to have been written in separate ink or at some left over space. Rather, it appears to have been recorded in same continuity, handwriting and ink as rest of the contents of these documents. No explanation from the prosecution is forthcoming as to how the FIR number surfaced on a document which was prepared prior to the registration of the FIR. This fact casts a fatal doubt upon the case of prosecution.
19. At this stage, reference may be made to the decision of the Hon'ble High Court of Delhi in Lalit v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as follows:
"....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. 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, PW 11/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 State Vs. Mohd. Naufal @ Raju & Anr. Page No.11 / 21 the number of F.I.R. 36 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."
20. Similarly, in paragraph 4 of Mohd. Hashim vs State, 82 (1999) DLT 375, the Hon'ble High Court of Delhi observed:
"...Surprisingly, the secret information (Ex. P.W. 7/A) received by the Sub-Inspector Narender Kumar Tyagi (P.W. 7), the notice under S. 50 of the Act (Ex. P.W. 5/A) alleged to have been served on the appellant, the seizure memo (Ex. P.W. 1/A) and the report submitted under S. 57 of the Act (Ex. P.W. 7/D) bear the number of the FIR (Ex. P.W. 4/B). The number of the FIR (Ex. P.W. 4/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 circumstances number of the FIR (Ex. P.W. 4/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. P.W. 4/B) was recorded prior to the alleged recovery of the contraband 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 contraband in the manner alleged by the prosecution."
21. The aforesaid rulings of the Hon'ble High Court of Delhi squarely apply to the facts in the present case as well, which leads to only one of the either inference, that is, either the FIR was registered prior to the alleged recovery of the illicit State Vs. Mohd. Naufal @ Raju & Anr. Page No.12 / 21 liquor, or that the said documents were prepared later in point of time. In either of the scenarios, a dent is created in the version of the prosecution, the benefit of which must accrue to the accused.
ii). The non-joining of any independent / public witness.
22. It is evident from the record that no public witness to the recovery of the liquor has been either cited in the list of prosecution witnesses or has been examined by the prosecution. Apparently, IO had even asked a few public persons to join the investigation, however, all of them refused to join the investigation and left the spot. Further, admittedly no notice was served to any such public person upon their refusal to join the investigation in the case. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi Vs. State"
1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
".........18. 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."State Vs. Mohd. Naufal @ Raju & Anr. Page No.13 / 21
23. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"........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 from 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 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 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 IO must have proceeded against them under the relevant provision 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."
24. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or more independent and respectable inhabitants of the locality are required to be made witnesses to such search, and the search is to be made in their presence. Under Section 100(8) Cr.P.C, refusal to be a witness State Vs. Mohd. Naufal @ Raju & Anr. Page No.14 / 21 can render such non willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the present case. Therefore, non-compliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity, makes the prosecution version highly doubtful.
25. This Court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the police witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above, and hereinafter.
iii). Possibility of misuse of seal of the investigating officer.
26. As per rukka Ex. PW1/E, after sealing the case property and the samples of illicit liquor with seal of 'NS', the aforesaid seal was handed over to Ct. Rajender. However, Ct. Rajender was a recovery witness and had apprehended the accused and was subsequently, a part of the investigation in the present case. Thus, the seal was not handed over to any independent witness. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent State Vs. Mohd. Naufal @ Raju & Anr. Page No.15 / 21 witness. In such a factual backdrop, since the seal was given to Ct. Rajender, the seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out.
27. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"....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. In the present case, the seal of Investigating Officer-Hoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out."
28. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the seealed 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. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating State Vs. Mohd. Naufal @ Raju & Anr. Page No.16 / 21 Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out...."
Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
iv). Failure to prove the possession of alcohol by accused beyond permissible limits.
29. Perusal of record shows that the Excise Result, Ex. A6, was obtained qua 2 sample bottles only, whereby the presence of alcohol in the said sample bottle was confirmed. The presence of alcohol in the remaining allegedly recovered liquor bottles has not been thus, proved by the prosecution. Now, since the State has only found 1 bottle allegedly recovered from the accused, containing alcohol, an offence under section 33 of the Delhi Excise Act, 2009 cannot be said to have been made out as the same falls within the maximum permissible limit specified under Rule 20 of the Delhi Excise Rules, 2010. At this juncture, the ruling of the Hon'ble High Court of Karnataka, in its judgment titled as Nagesh S/O Ningaiah vs The State Of Karnataka, Criminal Revision Petition No.772 /2009, decided on 31 January, 2014, maybe adverted to, wherein, while acquitting the accused of a similar offence, following observations were made:
"It is seen from the mahazar that out of 49,440 Whisky bottles, 15 Whisky bottles of 180 ml. each were sent for Chemical Analysis, and it is opined that there was presence of Ethyl Alcohol in all the bottles that were sent for Chemical Examination, fit for consumption. Thus, the total quantity sent for Chemical Analysis is less than permitted quantity under law. We do not know the contents of the other State Vs. Mohd. Naufal @ Raju & Anr. Page No.17 / 21 bottles seized under a Panchanama. There is no evidence to show that all other bottles also contained alcohol. When the quantity found in the bottle sent for Chemical Examination is less than permitted limit and when there is no evidence regarding the contents of all other bottles seized under Panchanama, it cannot be said that the accused was in possession of the illicit liquor without pass or permit more than permitted quantity so as to constitute an offence. The unreported decision of this Court in W.P.No.17991/2011 (Excise), dated 28.02.2012, relied upon by the learned counsel for the petitioner is rightly applicable to the facts of this case.........In this case also the prosecution has failed to establish that the accused was in possession of liquor more than permitted quantity."
v). Other infirmities in the prosecution case.
30. When the police official himself was the complainant in this case, the omission of name of apprehended accused in the relevant DD entry, raises doubt regarding the proceedings having been conducted at the spot and gives rise to the suspicion that the same were done in a mechanical manner in the PS itself and accused may have been falsely implicated in the present case. This fact has remained unexplained on behalf of the prosecution. In fact, this possibility of planted recovery upon the accused, further gains strength from the fact that the police did not bother at all to discover the source of illicit liquor or to further enquire about the potential customers of the same.
31. There is no gainsaying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, State Vs. Mohd. Naufal @ Raju & Anr. Page No.18 / 21 leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution.
In the light of the above discussion accused no.1 i.e. Mohd. Naufal @ Raju is acquitted of offence under section 33 of Delhi Excise Act.
Now as discussed earlier section 52(2) of Delhi Excise Act provides that:
"Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
32. The accused no.2 being an owner of scooty bearing no. DL11SV8792 is charged under section 52(2) of Delhi Excise Act. The pre-requisite to hold any person guilty under section 52(2) is that the accused must be the owner of the vehicle which is used in the commission of the offence under the Delhi Excise Act. However since accused no.1 is not found to be guilty of any offence under the abovesaid Act in respect of the scooty bearing no. DL11SV8792, no culpability can be cast upon accused no. 2. Accordingly accused no.2 is also acquitted of the offence under section 52(2) of Delhi Excise Act.
33. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for State Vs. Mohd. Naufal @ Raju & Anr. Page No.19 / 21 offence u/s 33 and 52(2) Delhi Excise Act beyond reasonable doubt, thus, entitling the accused persons to benefit of doubt and acquittal.
34. Apart from the Delhi Excise Act, accused no. 1 is indicted for an offence under section 3/181 of MV Act & accused no.2 is indicted for an offence under section 5/180 MV Act.
Section 180 & 181 of MV Act provide as follows:
180. Allowing unauthorised persons to drive vehicles-
'Whenever, being the owner or person in charge of a motor vehicle, causes, or permits, any other person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle shall be punishable with imprisonment for a term which may extend to three months, or with fine 1[of five thousand rupees], or with both'.
181. Driving vehicles in contravention of section 3 or section 4- 'Whoever, drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months, or with fine 1[of five thousand rupees], or with both' Whereas Section 185 of MV Act provides as follows-
35. The above sections provide for the punishment if the owner of the vehicle authorizes any person to drive his vehicle without satisfying the requisites of section 3 & 4 of the same act i.e. to hold an effective license & if a person drives a vehicle without an effective license.
State Vs. Mohd. Naufal @ Raju & Anr. Page No.20 / 2136. No effective license has been produced by the accused no.1 during the proceedings of the present case, hence accused no.1 is held guilty of commission of offence under section 3/181 of MV Act & is directed to pay a fine of Rs. 500 & if failed to do so to undergo imprisonment for 10 days. IO discovered the ownership details of scooty bearing no. DL11SV8792 from Motor Licensing Office, Sector 16, Rohini, Delhi which revealed to be registered in the name of accused no.2. Consequently IO gave notice to accused no.2 under section 133 of MV Act. Accused no.2. Thereafter accused no.2 admitted to allowing accused no.1 to ride his scooty. Accordingly accused no.2 is held guilty of commission of offence under section 5/180 of MV Act & is directed to pay a fine of Rs. 1000 & if failed to do so to undergo imprisonment for 10 days.
37. Accused persons Mohd. Naufal @ Raju and Mohd. Javed Akhtar are thus, acquitted of the offence u/s 33 and 52(2) Delhi Excise Act & convicted under Section 3/181 & 5/180 MV Act.
38. Copy of this judgment be given free of cost to the accused. Announced in the open court on 23.02.2024, in presence of NIDHISH Digitally signed by NIDHISH accused and Ld. Counsel for KUMAR KUMAR MEENA Date: 2024.02.23 accused. MEENA 17:17:24 +0530 (NIDHESH KUMAR MENA) M.M-10/Dwarka Courts/22.02.2024 It is certified that this judgment contains 21 pages, NIDHISH Digitally signed by all signed by the undersigned. KUMAR NIDHISH KUMAR MEENA Date: 2024.02.23 17:17:31 MEENA +0530 (NIDHESH KUMAR MENA) M.M-10/Dwarka Courts/22.02.2024 State Vs. Mohd. Naufal @ Raju & Anr. Page No.21 / 21