Delhi District Court
State vs . Bablu on 1 April, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 88/17
U/s : 33/38 Delhi Excise Act
P.S. : Ranhola
State Vs. Bablu
JUDGMENT:
a) CNR No. : DLWT02-009759-2017
b) Sl. No. of the Case : 4625/17
c) Name & address of the : Ct. Ishwar Singh, No. 2480/OD,
complainant. PS Ranhola, Delhi.
d) Name & address of : Bablu S/o Sh. Puncham @Raju,
accused R/o H.No.-3. Gali No. 9, Raksha
Enclave, Mohan Garden, New Delhi.
e) Date of Commission of : 15.02.2017
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 : 01.04.2022
Date of Institution : 18.07.2017
Final arguments heard on : 01.04.2022
Judgment Pronounced on : 01.04.2022
FIR No: 88/17 State v. Bablu Page No.1/20
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 15.02.2017 at about 02:55 PM at H.No. 3, Gali No. 9, Raksha Enclave, Mohan Garden, Delhi, within the jurisdiction of PS Ranhola accused was found in possession of five gatta petties containing total 250 quarter bottles (180 ML each) of 'Asli Santara Masaledar Deshi Sharab' for sale in Haryana only without any license or permit.
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 33/38 Delhi Excise Act was framed against accused on 04.09.2018, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined three witnesses.
5. PW-1 CT. Ishwar is the complainant of the present case who deposed that on 15.02.2017, he was posted at PS Ranhola as Ct. on that day, at about 02:45 PM, he alongwith HC Rajesh Kumar were FIR No: 88/17 State v. Bablu Page No.2/20 on patrolling duty in Beat No. 3 and while conducting the said patrolling duty when they reached at Gali No. 9, Raksha Enclave, Mohan garden, one secret informer met them and informed that one person namely Bablu was carrying one gatta peti containing illicit liquor and was going towards his house and if an immediate raid was conducted, he could be apprehended. He shared this information with HC rajesh and thereafter they both approached towards the house of above said accused Bablu at H.No. 3, Gali No. 9, Raksha Enclave, Mohan Garden, New Delhi, where they saw that accused Bablu was carrying one gata peti on his shoulder and was taking the same inside his house. He checked the aforesaid gatta peti and it was found containing illicit liquor. He also found 4 gatta petties which were lying near the gate of the above said house of the accused. He shared this information to the duty officer and asked to send the IO. After that ASI Sube sing came to the spot to whom he handed over above said gatta petties which were containing illicit liquor and also the custody of the accused. IO checked the above said 5 gatta petties which were found containing 250 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for FIR No: 88/17 State v. Bablu Page No.3/20 sale in Haryana only. IO asked 4-5 public persons to join the investigation but they refused to join the investigation and left the psot without disclosing their names and addresses. Each gatta peti was checked which was found containing 50-50 quarter bottles of illicit liquor. 2-2 sample quarter bottles were taken from each gatta peti and remaining quarter bottles were put in the same gatta peti and were sealed with the seal of "SS". Gatta petties were given serial no. 1 to 5 and sample bottles ere given No. 1 to 10. The mouth of the samples were properly sealed with the seal of "SS". Form M-29 was prepared. IO prepared the rukka on his statement vide Ex.PW1/A and handed over the same to him which he took to PS, got the case registered and came back with copy of FIR and original rukka. The sizure memo of case property vide Ex.PW1/B. Thereafter IO arrested and conducted the personal search of the accused vide Ex.PW1/C and Ex.PW1/D. IO recorded disclosure of the accused Ex.PW1/E. Case property and accused brought to the PS. He can identify the case property, if shown to him.
At that stage MHC(M) of PS Ranhola has produced one quarter bottle "Asli Santara Masaledar Deshi Sharab" for sale in FIR No: 88/17 State v. Bablu Page No.4/20 Haryana only. The mouth of the sample is properly sealed with the seal of "MS". The said quarter bottle bears the particulars of the case FIR and the same was Ex.P-1.
At that stage, MHC(M) has also produced order of confiscation dated 29.06.2017 with the order of destructions dated 16.07.2017 annexed with the report and its certificate under the seal and signature of SHO PS Ranhola. The said documents also contained photograph containing images of recovered quarter bottle of illicit liquor and kattas in which the case property was sealed. The same was shown to the witness and he correctly identified the case property and the same was Ex.P-2(Colly). The destruction order containing the particulars of the present case FIR as serial no. 25 whereby the recovered liquor of the present case was destroyed vide order dated 16.07.2017. The said documents were taken on record as Ex.P-3(Colly).
In his cross-examination he further stated that he left the PS at about 02:30 PM on motorcycle. He did not remember his departure entry of the same. The secret informer left the spot after giving information. The distance from the spot from where the FIR No: 88/17 State v. Bablu Page No.5/20 secret informer left and the accused was about 100 meter. It was a residential area. He did not ask any person from the locality to join the recovery proceedings. He took rukka at about 05:00-05:15 PM and returned back within an hour. IO did not prepare any document before sending any rukka. Seal was given to him and he deposited the same in the malkhana. It was correct that no memo was prepared in that regard. No separate no. was given to the remaining bottles which were put in the katta. He did not remember the time when accused was arrested. The case property was taken to the PS in Govt. gypsy by him. It was called at the spot by the IO. He do not remember the registration no. of said gypsy the gypsy might have been driven by the person who was on duty at that time. He did not remember his name. He knew the accused prior to the present case. It was wrong to suggest that he never visited the spot or that the accused was falsely implicated in the present case or that any recovery was effected from the possession of the accused or that all the written work was done while sitting in the PS and wrong to suggest that he was deposing falsely.
FIR No: 88/17 State v. Bablu Page No.6/20
6. PW-2 HC Rajesh deposed that on 15.02.2017, he was posted at PS Ranhola as a HC. On that day, he alongwith Ct. Ishwar were on patrolling duty in beat no. 3 and while patrolling they reached at Gali no. 9, Raksha Enclave, Mohan Garden, Delhi. They met with secret informer who informed that one carton box of illicit liquor was kept in front of house of accused Bablu and he would put inside the said carton box in his house. Thereafter, at about 02:50 PM, they reached in front of house of the accused Bablu and saw that accused Bablu was having one carton box on his shoulder and he was trying to get inside his house. They stopped accused Bablu and checked the carton box and found same was containing illicit liquor. There were four another carton boxes kept in front of his house. They informed the said fact to IO. IO came at the spot. IO recorded statement of Ct. Ishwar. IO requested 3-4 persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. IO checked the said 5 carton boxes and found each was containing 50 quarter bottles of illicit liquor of brand "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only. IO separated 2 quarter bottles from each carton box and FIR No: 88/17 State v. Bablu Page No.7/20 sealed them with the seal of "SS". Remaining case property was also sealed with the seal of "SS". IO filled from M-29. IO seized the case property vide memo Ex.PW1/B. IO prepared the rukka and same was handed over to Ct. Ishwar for registration of FIR. Accordingly, he took the same to PS and got FIR registered and came back at the spot alongwith copy of FIR and original rukka and same was handed over to the IO. IO prepared site plan vide Ex.PW2/A. IO arrested, personally searched and recorded disclosure statement of accused vide Ex.PW1/C, PW1/D and PW1/E. Case propety deposited in malkhana. IO recorded his statement.
He can identify the case property and accused, if shown to him. Ld. Counsel for the accused did not dispute the identity of the accused.
In his Cross-examination he deposed that he left the PS for patrolling on motorcycle at about 09:00 AM. The place of receiving secret information was at a distance of 50 meters away from the house of accused. Secret informer left the spot after disclosing secret information. They were on one motorcycle. They were together when secret information was received. It was correct FIR No: 88/17 State v. Bablu Page No.8/20 that spot was a residential area. He alongwith Ct. Ishwar did not request any public person to join the investigation at the time of recovery. IO came at the spot within 10 minutes on his motorcycle. After receiving the secret information, IO came within 30 minutes. He did not remember to whom seal was handed over after use. He did not remember at what time Ct. Ishwar took the rukka to PS and when he returned back. During that period, Io prepared personal search, site plan and rukka. He did not remember at what time arrest memo was prepared. He did not remember how case property was taken to PS. It was wrong to suggest that nothing was recovered from the accused or that case property was planted upon the accused or that accused was falsely implicated or that he was deposing falsely.
7. PW-3 ASI Subey Singh is the IO of the present case, who deposed that on 05.02.2017, he was posted at PS Ranhola as ASI. On that day, on receiving DD No. 38-B, he reached at the spot. On reaching there, he met Ct. Ishwar who produced before him, accused Bablu alongwith case property. He checked the case property and found that the same was containing 5 carton boxes of FIR No: 88/17 State v. Bablu Page No.9/20 illicit liquor and each carton box was containing 50 quarter bottles. He separated 2 quarter bottles from each carton as a sample and sealed them with the seal of "SS". He sealed the remaining case property with the seal of "SS". He filled form M-29 vide Ex.PW3/A. He seized the case property vide Ex.PW1/B and recorded statement of Ct. Ishwar vide Ex.PW1/A. He prepared rukka vide Ex.PW3/B and handed over the same to Ct. Ishwar for registration of FIR. He tgook same to PS and got FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to him. He prepared site plan Ex.PW2/A. He arrested, personally searched and recorded disclosure statement of accused vide Ex.PW1/C, Pw1/D and Pw1/E. Case property deposited in malkhana. Sample were sent to Excise Lab and obtained the result vide Ex.A-5. He can identify case property, if shown to him and case property was already exhibited in testimony of PW-1.
In his cross-examination he further deposed that he left the PS at around 03:00 PM and reached at spot within 20 minutes. It was correct that spot was residential area. Ct. Ishwar took the rukka at around 05:00-05:15 PM and returned back at the spot at around FIR No: 88/17 State v. Bablu Page No.10/20 06:00 PM. He prepared only seizure memo before preparing rukka in the presence of Ct. Ishwar. Seal after use was handed over to Ct. Ishwar and no memo was prepared in this regard. He received back his seal from malkhana. He took case property to PS in any cycle rickshaw in the presence of Ct. Ishwar. It was wrong to suggest that nothing had been recovered from possession of accused and that recovered articles were falsely planted upon the accused. It was wrong to suggest that all the proceedings were done while sitting at the PS and wrong to suggest that he was deposing falsely.
8. After completion of prosecution evidence, all the incriminating evidence was put to accused U/s 313 Cr.P.C and his explanation was recorded, wherein he denied all the incriminating evidence against him and claimed to have been falsely implicated and case property planted upon him. Accused chose not to lead DE.
9. The accused admitted FIR No. 88/17, certificate U/s 65B Evidence Act, DD No. 38-B and statement of Ct. Rajesh Kumar and Chemical examination report, vide Ex.A-1 to Ex.A-5 u/s 294 Cr.P.C respectively.
FIR No: 88/17 State v. Bablu Page No.11/20
10. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
11. 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 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.
12. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused Bablu is entitled to be acquitted for the charge by reasons of reasonable doubts in the prosecution story.
FIR No: 88/17 State v. Bablu Page No.12/20
13. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: "22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
14. In the present case, the above said provision appears to have not been complied with by the prosecution. As per the prosecution version, at the time of the apprehension of the accused with illicit liquor from his possession, Ct. Ishwar Singh(PW1) had left the PS for patrolling duty but the said DD entries vide which he had left the PS for patrolling duty. In the opinion of this Court, the prosecution was under an obligation to bring on record and prove FIR No: 88/17 State v. Bablu Page No.13/20 the above said DD entries vide which the above said police official had left the PS, so as to prove the possibility of availability of said police officials PW1 at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have brought on record and prove the DD entries by which the above said police official had left the PS, so as to inspire the confidence regarding their availability and presence at the place of apprehension of the accused, since the said police official was under bounden duty to enter his departure and arrival from/at the police station by making a D.D. entry in that respect as per the aforesaid mentioned Punjab Police Rules.
15. At this juncture, it is relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. FIR No: 88/17 State v. Bablu Page No.14/20 This failure of the prosecution to bring on record and prove the relevant DD entries as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the police officials.
16. As deposed in their testimony, PW1, PWE and PW3 stated that IO had asked some 3-4 public persons to join the investigation, but all of them refused citing their personal reasons. However, 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 this is especially so because PW1 and PW2 had advance information from secret informer that accused can be apprehended with illicit liquor. 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. 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 FIR No: 88/17 State v. Bablu Page No.15/20 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 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 FIR No: 88/17 State v. Bablu Page No.16/20 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 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 FIR No: 88/17 State v. Bablu Page No.17/20 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 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".
17. In view the background of the case, defence of the accused, non-following the established procedure of law by the investigating agency, as discussed above, this Court is of the FIR No: 88/17 State v. Bablu Page No.18/20 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 of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
18. 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 Bablu beyond FIR No: 88/17 State v. Bablu Page No.19/20 reasonable doubt. The accused Bablu is hereby acquitted for the charged offence.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 1th day of April, 2022 01.04.2022.
FIR No: 88/17 State v. Bablu Page No.20/20