Delhi District Court
State vs Rajesh Singh on 9 January, 2025
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL
MAGISTRATE : SOUTH EAST DISTRICT : SAKET
COURTS : NEW DELHI
JUDGMENT
STATE VS. RAJESH SINGH AND ANOTHER FIR No. : 209/2020 U/s 33 DELHI EXCISE ACT PS : BADARPUR A. CNR NO. : DLSE02-016298-2021 B. CIS No. of the Case : 4986/2021 C. Date of Institution : 26.08.2021 D. Date of Commission of : 27.05.2020 Offence E. Name of the complainant : CT. Sonvir.
F. Name of the Accused : (1) Rajesh Singh S/o Late persons, his Parentage & Sh. Jile Singh R/o. H.No. Addresses M-12, Vijay Nagar Colony, Bawana, Delhi.
(2) Vinod Kumar S/o Sh.
Bhim Singh R/o. H.No. 291, Village, Sultanpur, Dabas North West, Delhi.
G. Offence complained of : U/s 33 of Delhi Excise Act.
H. Plea of the Accused : Pleaded not guilty and claimed
trial
I. Order reserved on : 03.01.2025.
J. Final order : Acquitted.
K. Date of such order : 09.01.2025
Brief Statement of Reasons for Decision of the Case:
1. The present FIR under Section 33 of Delhi Excise Act was registered on a complaint filed by the complainant against State Vs. Rajesh Singh and Anr Digitally signed by VIVEK FIR No. 209/2020, PS: Badarpur VIVEK BENIWAL Page no. 1 of 14 BENIWAL Date:
2025.01.14 14:25:14 +0530 accused persons alleging that on 27.05.2020 at about 11.40 PM in front of Zeep Showroom, Main Mathura Road, Badarpur, New Delhi, within the jurisdiction of PS Badarpur, accused Vinod Kumar being the owner of vehicle bearing No. DL4C AG 3503 handed over the said vehicle to accused Rajesh Singh who was found in possession of illicit liquor mentioned in seizure memo Mark X along with the said vehicle. Matter was reported to the police.
2. FIR was registered and matter has been investigated by IO/HC Santosh Kumar who filed the main charge-sheet against the accused persons upon which cognizance were taken on 26.08.2021.
3. Accused persons were summoned to appear before the Court. Accused persons put their appearance before the Court. Copy of charge sheet under section 207 Cr.P.C. was supplied to the accused persons.
4. Notices were framed vide order dated 07.03.2022 for the offences punishable u/s 33 of Delhi Excise Act against the accused Rajesh Singh and for the offence punishable under Section 33/52 Delhi Excise Act against accused Vinod Kumar, to which they pleaded not guilty and claimed trial
5. The prosecution, in support of its case, has examined four witnesses. VIVEK Digitally signed by VIVEK BENIWAL BENIWAL Date: 2025.01.14 14:25:24 +0530 State Vs. Rajesh Singh and Anr FIR No. 209/2020, PS: Badarpur Page no. 2 of 14
6. PW-1 ASI Mohan Singh has deposed before the court that on 28.05.2020 at about 3.00 AM, on receipt of rukka from Ct. Sonveer which was sent by HC Santosh, he made endorsement on the rukka Ex.PW1/1 and on the basis of rukka he registered the present FIR Ex.PW1/2. He also prepared certificate under Section 65B of Indian Evidence Act Ex.PW1/3 and thereafter he handed over the copy of FIR and original rukka to Ct. Sonveer to provide the same to HC Santosh for investigation. He produced the FIR register containing FIR No. 201/2020 to 250/2020.
7. PW-2 HC Sonveer has deposed before the Court that on 27.05.2020, he along with HC Ram Kishan were on night patrolling duty. They put barricade in front of Jeep Showroom, Mathura Road, Badarpur. At about 11:40 PM, a car bearing registration no. DL-4CAG-3504 came from the side of Faridabad. On suspicion, he (PW2) closed the road by keeping the barricade adjacent. After seeing them, the car driver accelerated the speed of car and when the driver of car found that he could not cross the barricade therefore, the driver stopped the car and get down from the car and started running towards backside. PW2 along with HC Ram Kishan chased the driver at about 8-10 steps and apprehended him. PW2 checked the car and found total 55 carton peti of illicit liquor. Forty carton peti was found under the rear seat of the car and 15 carton peti was found in the dikki. Thereafter, PW2 informed regarding recovery of illicit liquor and apprehension of accused to Duty Officer, PS Badarpur. After some time, IO/HC Santosh came to the spot to whom he handed over accused as well as recovered illicit liquor.
Digitally signedState Vs. Rajesh Singh and Anr VIVEK by VIVEK BENIWAL BENIWAL Date: 2025.01.14 FIR No. 209/2020, PS: Badarpur 14:26:34 +0530 Page no. 3 of 14 IO interrogated the accused who revealed his name as Rajesh Singh s/o Zile Singh. IO counted recovered illicit liquor and the recovered illicit liquor was different brand. Twenty carton peties were of brand Impact. Thirty five carton peties were of another brand. IO/HC Santosh recorded statement of PW2 Ex.PW2/1. IO prepared rukka and got FIR registered through PW2. IO separated 55 quarter bottles from each peti for sample purpose and tied the mouth of the same with white color cloth. IO gave identification to sample bottle S1-S55. IO kept remaining quarter bottles in the same peties in which it was found. IO gave identification to carton peties A1-A55. IO kept two carton peties in 26 plastic kattas and IO kept three carton peties in one plastic katta. There were 55 carton peties of illicit liquor were recovered. Total 27 plastic kattas were used to keep the recovered illicit liquor. Thereafter, IO tied the mouth of plastic katta with white color cloth and sealed the same with the seal of SK. IO gave identification to plastic katta as B1-B27. IO prepared seizure memo of recovered illicit liquor vide Ex.PW2/2. IO also seized the recovered car vide seizure memo Ex.PW2/3. IO prepared arrest memo of accused vide Ex.PW2/4 and prepared personal search memo of accused vide Ex.PW2/5.IO recorded disclosure statement of accused vide Ex.PW2/6. Thereafter, accused was sent for medical examination. IO prepared site plan Ex.PW2/7. IO handed over the seal to him after seizing the case property and prepared seal handing over memo Ex.PW2/8. This witness correctly identified the accused Rajesh. Digitally signed by VIVEK VIVEK BENIWAL BENIWAL Date: 2025.01.14 14:27:36 +0530 State Vs. Rajesh Singh and Anr FIR No. 209/2020, PS: Badarpur Page no. 4 of 14
8. PW-3 HC Ram Kishan has deposed on the lines of PW-2 Sonveer. Further, he identified two photographs of car make Hyundai Getz (white in color) bearing no. DL-4CAG-3503 Ex.PH1(Colly). He also identified the case property P1 (Colly).
9. PW-4 ASI Santosh Kumar has deposed before the Court that on 28.05.2020, at around 12:05 am, DD No. 2B regarding recovery of illicit liquor was marked to him for further action. He reached the spot i.e. infront of Jeep showroom, Mathura Road, Badar Pur. He met HC Ram Kishan and Ct. Sonveer who produced the accused namely Rajesh Singh along with one car bearing No. DL4CAG3503, white colour make Hyundai Getz containing the cartoons of illicit liquor. He made efforts to join independent witnesses but none joined and left the spot. Written notice could not be served due to their unwillingness and paucity of time. He (PW4) checked the car and counted recovered illicit liquor and the recovered illicit liquor was different brand. Twenty carton peties were of brand Impact grain whisky. Thirty five carton peties were of another brand Asli Santara Masaledar Deshi Sharab. He (PW4) recorded statement of Ct. Sonveer and separated 55 quarter bottles from each peti for sample purpose and tied the mouth of the same with white color cloth. IO gave identification to sample bottle S1-S55. IO kept remaining quarter bottles in the same peties in which it was found. IO gave identification to carton peties A1-A55. IO kept two carton peties in 26 plastic kattas and IO kept three carton peties in one plastic katta. There were 55 carton peties of illicit liquor were recovered. Total 27 plastic kattas were used to keep the recovered illicit State Vs. Rajesh Singh and Anr Digitally signed FIR No. 209/2020, PS: Badarpur VIVEK by VIVEK BENIWAL Page no. 5 of 14 BENIWAL Date: 2025.01.14 14:27:45 +0530 liquor. Thereafter, IO tied the mouth of plastic katta with white color cloth and sealed the same with the seal of SK. IO gave identification to plastic excise katta as B1-B27. PW4 prepared form M-29 Ex. PW-4/A and seal after use was handed over to Ct. Sonveer vide memo already Ex. PW2/A. IO prepared seizure memo of recovered illicit liquor already Ex.PW2/2. PW4 also seized the recovered car vide seizure memo already Ex.PW2/3. Thereafter he prepared rukka Ex.PW4/B and got the FIR registered through Ct. Sonveer. After the FIR, he prepared arrest memo of accused vide already Ex.PW2/4 and also prepared personal search memo of accused vide Ex.PW2/5. IO recorded disclosure statement of accused vide already Ex.PW2/6. He prepared the site plan at the instance of Ct. Sonveer Ex. PW2/7. Thereafter, accused was sent for medical examination. He got shifted the case property to the PS and deposited the same in the malkhana. During the investigation, he got verified the details of aforesaid seized car and the same was found registered in the name of Vinod Kumar. He served notice U/S 41 Crpc upon the registered owner Ex. PW4/C and joined him in the investigation. During the investigation, he (PW4) got deposited the sample case property at excise lab through Ct. Amit. After Chemical Analysis of the same case property, he collected excise lab result. During the investigation, he recorded statement of witnesses and after completion of investigation, he prepared the charge sheet and submitted the same before the Hon'ble Trial Court. This witness correctly identified the two photographs of car make Hyundai Getz (white in color) bearing no. DL-4CAG-3503 Ex. PH1(Colly). He also identified both the accused persons in the Digitally signed by VIVEK State Vs. Rajesh Singh and Anr VIVEK BENIWAL FIR No. 209/2020, PS: Badarpur BENIWAL Date:
2025.01.14 Page no. 6 of 14
14:27:54 +0530
court.
10. No other witness was examined by the prosecution and hence, PE was closed.
11. Thereafter, statement u/s 313 Cr.P.C. of the accused persons were recorded, wherein all the incriminating material that appeared in evidence against them, were put to them to which they stated that they did not commit any offence and they have been falsely implicated. Accused persons opted not to lead defence evidence.
12. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
13. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
14. The accused herein has been charged for an offence punishable under section 33, the Delhi Excise Act. The Section Digitally signed State Vs. Rajesh Singh and Anr VIVEK by VIVEK BENIWAL FIR No. 209/2020, PS: Badarpur BENIWAL Date:
2025.01.14 Page no. 7 of 14
14:28:05 +0530
reads as under:
"Section 33- Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. 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 work; any manufactory or warehouse;
(c) bottles any liquor or 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 today or tan;
(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 lakh rupees."
15. The case of the prosecution is that on the fateful day the accused Vinod Kumar being the owner of vehicle bearing no. DL 4C AG 3503 handed over the said vehicle to accused Rajesh Singh who was found in possession of illicit liquor without any permit or license. In order to bring home the charge against the accused, the prosecution is required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
16. Ld. APP for the state has relied upon Section 52 of the Delhi Excise Act. It has been argued that where an accused is charged of commission of the offence punishable Section 33 of Digitally signed State Vs. Rajesh Singh and Anr VIVEK by VIVEK BENIWAL BENIWAL Date: 2025.01.14 FIR No. 209/2020, PS: Badarpur 14:28:14 +0530 Page no. 8 of 14 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.
17. I have considered the submission. However, I am of the opinion that this is not the correct interpretation of the law. 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, 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".
18. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly show that it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused before the presumption under the aforesaid provision is being raised against 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. Now it has to be seen whether the prosecution has established beyond reasonable doubt that the Digitally signed State Vs. Rajesh Singh and Anr VIVEK by VIVEK BENIWAL FIR No. 209/2020, PS: Badarpur BENIWAL Date: 2025.01.14 14:28:24 +0530 Page no. 9 of 14 accused was found in possession of the alleged illicit liquor.
19. In the present case, the entire story of the prosecution is based on the fact of alleged recovery of illicit liquor from the possession of accused Rajesh Singh.
20. 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 Cr.P.C, 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 present case. This casts a doubt on the fairness of the investigation.
21. Thus, it is shown on record that the complainant and the IO did not make any genuine efforts in the present case to get independent public witness joined the search proceedings despite their availability. No notice or warning is shown to have been given to public persons who had allegedly refused to join search proceedings, which also creates doubt on the story of the prosecution. Non-availability of a public witness is one thing and not joining public person as a witness despite their availability is altogether different thing. In case a public person is available, it is duty of the police official to make sincere efforts to persuade such person to join the legal proceedings to become a witness. However, in the present case no such efforts are shown to be made by the police officials. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under:-
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness Digitally signed State Vs. Rajesh Singh and Anr by VIVEK VIVEK BENIWAL FIR No. 209/2020, PS: Badarpur BENIWAL Date: Page no. 10 of 14 2025.01.14 14:28:33 +0530 from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
22. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution. This Court is 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. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and another v. 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.
23. As per the testimony of the PW4, the sample of liquor and case property were sealed with the seal of "SK". PW-4 has stated that he had handed over the seal to Ct. Sonveer after use. However, there is no handing over memo of the seal to show that seal was handed over to some independent witness as claimed. Thus, the possibility that the case property might have been tampered with cannot be ruled out.
24. Further, the PW4 has deposed that he had seized the liquor Digitally signed State Vs. Rajesh Singh and Anr by VIVEK VIVEK BENIWAL BENIWAL Date: 2025.01.14 FIR No. 209/2020, PS: Badarpur 14:28:42 +0530 Page no. 11 of 14 bottles and the sample bottles vide memo Ex. PW-2/2. Thereafter, he prepared the rukka Ex.PW4/B. It is, therefore, clear that the seizure memo Ex PW 2/2 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 memo Ex. PW-2/2. 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. Thus, ordinarily, the FIR number should not find mention in the memo, which came into existence before registration of the FIR. However, interestingly, the memo Ex. PW-2/2 bears the FIR number and case details.. Hon'ble High Court of Delhi in Pawan Kumar Vs. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:
"... 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, PW11/G was recorded.
The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 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 Digitally signed State Vs. Rajesh Singh and Anr VIVEK by VIVEK BENIWAL FIR No. 209/2020, PS: Badarpur BENIWAL Date:
2025.01.14 Page no. 12 of 14 14:28:51 +0530 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."
25. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its 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.
26. In the light of the discussion hereinabove, I am of the opinion that the facts that no independent witness was cited or examined, possibility of misuse of seal has not been ruled out, the addition of FIR number and case particulars on the seizure State Vs. Rajesh Singh and Anr Digitally signed by VIVEK FIR No. 209/2020, PS: Badarpur VIVEK BENIWAL Page no. 13 of 14 BENIWAL Date:
2025.01.14 14:29:01 +0530 memos raiding a doubt, and no DD entry record of the presence of the members of raiding party / police officials on the spot has been proved, are able to raise clouds of reasonable suspicion over the prosecution story. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
27. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused persons. Both the accused persons are hereby acquitted of the offence punishable under Section 33/52 of the Delhi Excise Act. For the aforesaid reasons accused Rajesh Singh and Vinod Kumar also acquitted of the offence punishable under Section 33/52 Delhi Excise Act.
28. Case property be confiscated to State as per rules.
29. Accused be set at liberty.
Digitally
signed by
VIVEK
Dictated and announced VIVEK
BENIWAL
BENIWAL
Date:
in the open Court on 09.01.2025 2025.01.14
14:29:08
+0530
(VIVEK BENIWAL)
ACJM (SOUTH EAST):
SAKET COURTS:NEW DELHI
State Vs. Rajesh Singh and Anr
FIR No. 209/2020, PS: Badarpur Page no. 14 of 14