Delhi District Court
State vs . Seema on 25 August, 2022
IN THE COURT OF SH. AJAY SINGH PARIHAR
METROPOLITAN MAGISTRATE (NORTH WEST) : ROHINI, DELHI.
State Vs. Seema
FIR No. 868/06
PS Mangol Puri
Unique Case Identification No. 538525/16
JUDGMENT
(a) Sr. No. of the case 412/3
(b) Date of offence 24.11.2006
(c) Complainant Ct. Tasveer Singh, PS Mangol Puri, Delhi
(d) Accused Seema @ Baby W/o Sh. Kishore, R/o L-1318,
Mangol Puri, Delhi.
(e) Offences Under Section 61 Punjab Excise Act
(f) Plea of accused Pleaded not guilty
(g) Date of institution 14.05.2007
(h) Date when judgment 04.08.2022
was reserved
(i) Date of judgment 25.08.2022
1. The story of the prosecution is that on 24.11.2006 at about 12:45 PM at Opposite House No. L-1318, Mangolpuri, Delhi, accused was found in possession of five plastic katas, out of which, two plastic katas were containing 24 bottles of Showkeen Masaledar brand (each), two more katas were found containing 24 bottles of beer of King Fisher brand and 5 th katta was found containing 12 bottles of Shokeen Masaledar Desi Sharab and 12 bottles of beer of King Fisher brand without any valid permit, license or authority and in contravention of provisions of Punjab Excise Act.
2. After investigation chargesheet was filed. On the basis of the chargesheet charge for the offence punishable under section 61 of Punjab Excise Act was framed against the accused to which she pleaded not guilty and claimed trial.
Appreciation of Evidence
3. In order to prove above allegation against accused regarding recovery of illicit liquor the prosecution have examined seven witnesses :-
FIR No. 868/06 State Vs. Seema @ Baby Pg No.1/10 PW1 Ct. Tasveer Singh and PW-2 ASI Gulab are the recovery witnesses, who have deposed on the same lines. They deposed that on 24.11.2006, when PW-1 was present at LK Block beat, during patrolling at about 12:45 PM, he met with the secret informer who disclosed that one TSR dropped illicit liquor in heavy quantity at H.No. 1318, L Block, Mangolpuri, upon which, PW-1 reached at the spot, where accused was standing in front of that house alongwith five plastic kattas, which were lying there. Accused was correctly identified by PW- 1 on that day. Upon asking of PW-1 about the said kattas, accused had not given any satisfactory reply, whereupon, PW-1 checked the kattas and found illicit liquor bottles. He informed in PS, consequent thereupon, HC Satyvir and Lady Ct. Kamla reached at the spot. PW-1 produced accused and the recovered liquor before HC Satyvir. Statement of PW-1 was recorded as Ex.PW1/A. IO gave serial number to kattas as no.1 to 5. In katta Sr. No.1, 24 bottles of Shokeen Masaledar sharab was found, in katta sr. No.3 and 4, 24 bottles of Kingfisher beer were found in each katta and in 5th katta, 12 bottles of beer and 12 bottles of Shokeen Masaledar sharab were found. Meanwhile, PW-2 Ct. Gulab Singh also reached at the spot, who disclosed that he had also got information regarding the said liquor and he joined the investigation. One bottle of beer and one bottle of Shokeen Masaledar Sharab were taken out as sample. Samples bottles were sealed with the white cloth with the seal of SBS. Remaining bottles were again put in 5 katas and sealed with the seal of SBS. The seal was handed over to PW-2. After that IO prepared tehrir and sent PW-1 for registration of the case, who came back with copy of FIR and original rukka. Thereafter, accused was arrested and personally searched vide Ex.PW1/B. Accused was released on bail and case property was deposited in malkhana. Furthermore, it was brought to the notice of the Court that the case property of the present case was destroyed during the construction of over bridge, the DD entry 50-B dt. 20.02.2010.
Ld. APP had sought permission to put leading question which was heard and allowed on that day, wherein it was deposed by PW-1 that IO seized the recovered liquor vide memo Ex.PW1/C and also filled Form M-29. PW-2 was also subjected to cross-examination by ld. APP wherein PW-2 admitted that case property was seized by seizure memo already Ex.PW1/C. PW-1 and PW-2 were subjected to cross-examination of Ld. Defence FIR No. 868/06 State Vs. Seema @ Baby Pg No.2/10 counsel.
PW-3 W/HC Kamla was examined, who deposed that on 24.11.2006 upon receipt of DD No.14PP, she alongwith PW-2 reached at the spot i.e. L-1318, Mangolpuri where they found accused alongwith illicit liquor. PW-3 deposed on the same lines as deposed by earlier PWs, however, they are not being discussed here for the sake of brevity. PW-3 proved seizure memo of the recovered illicit liquor as Ex.PW1/C, arrest memo of accused as Ex.PW1/B, personal search memo as Ex.PW2/A. PW-3 was also subjected to cross-examination by Ld. APP as PW-3 was resiling from her earlier statement, wherein she admitted that she alongwith HC Satbir Singh went to the spot, where they met PW-1, who handed over the case property and accused to the IO. She further admitted that IO requested four / five passersby to join the investigation but none agreed and left the spot without disclosing their names and addresses. PW-3 further admitted that IO gave serial numbers on the recovered kattas and one bottle of sharab and beer were kept as sample and samples were sealed with the seal of SBS. PW-3 further admitted that form M-29 as filled by IO at the spot and IO prepared site plan on the spot.
PW-3 was subjected to cross-examination by Ld. defence counsel.
PW-4 ASI Darshan was examined being DO, who has proved registration of FIR of the present case as Ex.PW4/A and he further proved the endorsement made on the rukka as Ex.PW4/B. PW-4 was not cross-examined by Ld. Defence counsel despite grant of an opportunity in this regard.
PW-5 ASI Vinod Kumar was examined, who deposited the samples to Excise Lab vide RC No. 504/21/06 were deposited by him.
PW-5 was duly cross-examined by Ld. Defence counsel.
PW-6 Retd. SI Satbir Singh being the IO of the case has deposed on the same lines as already deposed by PW-1, PW-2 and PW-3. PW-6 further proved the rukka as Ex.PW6/A, site plan of place of incident as Ex.PW6/B. FIR No. 868/06 State Vs. Seema @ Baby Pg No.3/10 PW-6 was also subjected to cross-examination by Ld. APP as PW-6 was not disclosing complete facts of the case, wherein he admitted that he prepared Form M-29 and seized the recovered case property and sample bottles vide memo Ex.PW1/C. He further admitted that he had sent the sample bottles to Vikas Bhawan, ITO and collected the result of the same.
PW-6 was also subjected to cross-examination by Ld. defence counsel.
PW-7 SI Surender being MHC(M) proved the entry made by him at Sr. No.6374 in register no.19 vide Ex.PW6/A. He further deposed that on 28.11.2006, he handed over two sealed samples to Ct. Vinod vide RC No. 504/21/6 vide Ex.PW6/B. PW-7 was not cross-examined by Ld. Defence counsel despite grant of an opportunity in this regard.
STATEMENT / DEFENCE OF THE ACCUSED
4. In her examination recorded under Section 313 Cr.P.C., the accused denied the entire evidence put to her. She categorically stated that she is innocent and has been falsely implicated in the present case. Accused states that she does not wish to lead evidence in her defence.
ARGUMENTS
5. Learned Assistant Public Prosecutor for the State addressed pertinent arguments. He submitted that the accused as well as the case property have been correctly identified by the witnesses. He stated that link evidence is also available. He urged that the case has been proved beyond doubt against the accused and prayed for conviction of the accused.
6. On the other hand, Learned counsel for the accused submitted that the accused has been falsely implicated by the police. He submitted that the absence of public witnesses to the alleged recovery is fatal to the case of the prosecution. He prayed for acquittal of the accused.
ANALYSIS AND FINDINGS
FIR No. 868/06 State Vs. Seema @ Baby Pg No.4/10
7. The record has been thoroughly and carefully perused. The respective submissions of the Ld. APP for the State and Ld. counsel for the accused have been considered.
8. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or licence. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
9. Relying upon Section 52 of the Delhi Excise Act, Ld. APP for the state had argued that where the accused is charged of commission of the offence punishable Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary. The said argument does not find favour with this Court. Section 52 of the Delhi Excise Act reads as under: "Presumption as to commission of offence in certain cases. - (1) In prosecution under section 33 Delhi Excise Act, 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. (2) 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".
10. 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 FIR No. 868/06 State Vs. Seema @ Baby Pg No.5/10 for the same. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case.
11. Prosecution has examined in total seven witnesses however case property in the present case was not produced. In the testimony of PW1 Ct. Tasveer Singh, MHC(M) placed on record copy of DD entry 50B dated 20.03.2010, according to which the case property of the present case was destroyed during the construction of over bridge.
12. No public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from opposite side house no. L-1318, Mangolpuri, Delhi. The spot of recovery as per the site plan Ex.PW6/B near to road and is a residential area. The place of recovery and apprehension of the accused is, therefore, clearly located in an area where public persons would be readily available. The apprehension and recovery were allegedly made at about 12:45 p.m. Thus, at the place and time of the alleged recovery of illicit liquor and apprehension of the accused, public persons would in all likelihood have been present and available or have at least passed by the spot. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
13. PW2 in his cross-examination, stated that IO did ask certain public persons to join the proceedings however they refused, however, he has not stated the description of the persons who had allegedly refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW6 IO to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that non-joining of public witness shrouds 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. Same has not been done in the FIR No. 868/06 State Vs. Seema @ Baby Pg No.6/10 present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar vs The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under: " ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
14. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another vs State of Gujarat, AIR 1988 SC
696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
15. The present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by a two police officials PW1, who was on patrolling duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory duty to FIR No. 868/06 State Vs. Seema @ Baby Pg No.7/10 mark his departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934
16. Since public persons were not joined in the investigation, the departure entry of the PW1 who was allegedly on patrolling duty at LK block, Mangolpuri and departure entry of PW2 who reached the spot on secret information at the relevant time and had apprehended the accused with case property, becomes a vital piece of evidence. Although no question with regard to non-production of departure entry was asked to the prosecution witnesses during their cross examination on behalf of the accused, proof of the said entry is, however, indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official.
17. As per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the IO with the seal of SBS. As per the police report, after use the seal was handed over to Constable Gulab Singh, however, no handing over memo regarding the same was prepared. The seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
18. PW6 Retired SI Satbir has deposed on cross examination by Ld. APP that he seized the liquor vide memo Ex. PW1/C, filled excise form m-29 at the spot thereafter recorded the statement of Constable Tasveer Singh Ex. PW-1/A. He stated in his examination in chief that he prepared the Rukka Ex. PW6/A after sealing the case property. It is, therefore, clear that the seizure memos of the liquor was prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo Ex. PW-1/C. 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 Constable Tasveer Singh. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before registration of the FIR.
FIR No. 868/06 State Vs. Seema @ Baby Pg No.8/10 However, interestingly, the seizure memo Ex. PW1/C bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar vs The Delhi Administration, 1989 Crl.L.J. 127, wherein it was observed in paragraph 5 as under: "
19. Prosecution has examined in total seven witnesses however case property in the present case was not produced. In the testimony of PW1 Ct. Tasveer, MHC(M) placed on record copy of DD No. 50-B dt. 20.03.2010 according to which the case property of the present case was destroyed. MHCM only produced one quarter bottle as sample which was exhibited exhibit P1.
20. For proving the offence of possession of illicit liquor, it is incumbent upon the prosecution to establish the identity of the recovered illicit liquor from the possession of the accused and for that purpose the prosecution must prove that the liquor which is recovered from the accused is the same one. As per law and practice, the contraband/illicit liquor is required to be sealed with the seal of seizing officer by writing the case particulars on it in order to avoid any kind of tampering with the recovered article, however, the case property in the present case was never produced and the same was destroyed vide Ex.P1.
21. Keeping in view the background of the case, defence of the accused and non-proving of the case property, as discussed above, I am 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 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 FIR No. 868/06 State Vs. Seema @ Baby Pg No.9/10 of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
22. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, I hold that the prosecution has failed to prove the alleged offence under Section 61(1) of the Punjab Excise Act against the accused. The accused is accordingly acquitted for the said offence.
23. File be consigned to record room.
AJAY SINGH Digitally signed by AJAY
SINGH PARIHAR
PARIHAR Date: 2022.08.31 17:31:15
+05'30'
(Ajay Singh Parihar)
Metropolitan Magistrate (North West)
Rohini Courts : Delhi
Announced in the open court on 25th August, 2022
FIR No. 868/06 State Vs. Seema @ Baby Pg No.10/10