Delhi District Court
State vs Karan Tendi @ Sunny on 17 December, 2018
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MAGISTRATE-01 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.458/14
PS Prasad Nagar
State Vs.Karan Tendi @ Sunny
CIS No.6851/17
CNR No. DLCT-02-010587/17
JUDGMENT
(a) Sr. No. of the Case 6851/7
(b) Date of offence 26.10.2018
(c) Complainant Ct. Parveen
(d) Accused Karan Tendi @ Sunny S/o. Rajender Kumar,
R/o. House No. C-70, Block CC, J.J. Colony,
Bindapur, Delhi.
(e) Offence 33/58 Delhi Excise Act
(f) Plea of accused Pleaded Not guilty
(g) Date of Institution 03.05.2017
(h) Final Order Acquitted
(i) Date when judgment was 17.12.2018
reserved
(j) Date of judgment 17.12.2018
1. The present FIR was registered at PS Prasad Nagar against the accused namely Karan Tendi @ Sunny for the offence U/s 33/58 Delhi Excise Act.
2. The allegations against the accused are that on 26.10.2016, at about 12:55 am, Near Kuda Khatta, Main Tank Road, Karol Bagh, Delhi, accused was found in possession of FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.1 of 17 5 plastic kattas containing illicit liquor, which he was carrying in his Santro Car bearing registration no. DL-4C-AQ-8982 without any licence, permit or pass and in contravention of the notification issued by Delhi Administration. According to prosecution, the accused thereby committed offence punishable under Section 33/58 Delhi Excise Act, 2009.
3. After completion of the investigation, charge-sheet was filed and the accused was supplied with copies of challan alongwith annexures in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for the offence u/s 33/58 Delhi Excise Act was put to the accused vide order dated 27.09.2017, to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, prosecution has examined 3 witnesses.
5. PW-1 is Ct. Parveen, who deposed that on 25-26.10.2016, he was posted at PS Prasad Nagar as constable, that he was on night patrolling duty from 10:00 pm to 8:00 am (26.10.2016) along with Ct. Heera Lal, that at about 12:40 am, while patrolling, when they reached near Garbage House, Tank Road, one secret informer met them and informed that one person would bring heavy quantity of illicit liquor in white colour Santro Car bearing registration number 8982, that person may be caught if raided, that they telephonically informed the matter to the DO of PS Prasad Nagar, that after few minutes one Santro car bearing registration DL-4CAQ-8982 came from the side of Ravi Dass Marg and stopped near Garbage House, Tank Road, Delhi, that the secret informer pointed out towards that person and secret informer was discharged from the spot, that one boy came out from that car and opened the Dicky of the car and took out two bulky plastic sack bag from the car and placed the same near garbage house FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.2 of 17 and set in the car after closing the car and started turning the car, that he along with Ct. Heera Lal immediately reached there and stopped that car and overpowered that person by opening the door of the driver seat, that Heera Lal took possession of two plastic bags, that they requested public persons to join the proceedings but none agreed and went without disclosing their names and addresses, that in the meantime, HC Hasan Imam along with HC Suresh reached at the spot, they narrated the entire incident to the IO and handed over the accused along with the recovered plastic sack bags, that on interrogation the name of that person revealed as Karan Tendi @ Sunny, that IO requested public persons to join the proceedings but none agreed and went without disclosing their names and addresses, that without waisting any time, IO opened each katta and it was found containing 2 white colour carton each, that each carton is taken out and it was found containing 48 quarter bottles each of illicit liquor bearing label of ADS a quality product manufactured by ADS Spirits Pvt. Ltd., Bhutiyana, Jhajjar, Haryana, that thereafter, IO checked the Santro Car and on the rear seat of the car three plastic sack bags were found, that IO opened each of the bags and all of them were found containing two gatta petti each of illicit liquor, that as the light was dim at the spot so the recovered case property along with the car and accused was taken to the PS by the IO along with him, that after reaching the PS, IO HC Suresh Kumar counted the bottles on each of the gatta petties found in the plastic sack bags, that each of the petti was found containing 48 quarter bottles of illicit liquor of 180ml each bearing the label of ADS Quality Product manufactured by ADS Spirits Pvt. Ltd. Bhutiyana, Jhajjar, Haryana, that IO took out two quarter bottles as sample from each of the petty and the samples were given Serial No. AS-1 to AS-20 and the petties were given S. No. A-1 to A-A-10, that the remaining 46 quarter bottles were put in the same petty and two petties were put in the same plastic bag and each of the bag given S. No. K-1 to K-5, that the cap of the each of the samples was tied with white cloth and sealed separately with the seal of 'SK' and each of the plastic sack bags was also sealed separately with the seal of 'SK', that IO filled form No.M-29 and case property was seized vide seizure memo Ex.PW-1/A and also sealed the Santor Car EX. PW-1/B, that seal after use was handed over to Ct. Heera Lal, that IO recorded his FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.3 of 17 statement Ex. PW-1/C and prepared rukka and presented the rukka to the DO for registration of FIR, that he along with the IO returned back to the spot leaving the custody of accused with Ct. Heera Lal, that IO prepared the site plan at his instance Ex.PW-1/C, that in the meantime, Ct. Kanwar Pal reached at the spot along with rukka and copy of FIR and handed over the same to HC Suresh for further investigation, that thereafter, he along with IO and Ct. Kanwar Pal returned back to the PS, that IO recorded the disclosure statement of accused Ex.PW-1/E, that accused was arrested vide arrest memo Ex.PW-1/F and his personal search was conducted vide memo Ex.PW-1/G, that IO recorded his statement in this regard, that he can identify the case property if shown to him. Thereafter, MHC(M) Prasad Nagar appeared and produced 5 plastic kattas all bearing the particulars of the present case and all sealed with the seal of 'SK', that the katta 1 is opened with the permission of the court, that on opening the same, 2 cartons/gatta petti on which ADS quality product manufactured by ADS Spirits Pvt. Ltd. village Bhutian, Beri, Jhajjar, Haryana" is written, are taken out, that both the gatta petti are opened and on opening each of the petti 46 quarter bottles of 180 ml each of liquor bearing the label of "Impact Grain Whisky" for sale in Haryana only are taken out, that same are shown to witness who correctly identified the same as recovered from accused and seized by the IO, that katta 2 is opened with the permission of the court and on opening the same, 2 cartons/gatta petti on which ADS quality product manufactured by ADS Spirits Pvt. Ltd. village Bhutian, Beri, Jhajjar, Haryana" is written, are taken out, that both the gatta petti are opened and on opening each of the petti 46 quarter bottles of 180 ml each of liquor bearing the label of "Impact Grain Whisky" for sale in Haryana only are taken out, that the same are shown to witness who correctly identified the same as recovered from accused and seized by the IO, that the katta 3 is opened with the permission of the court and on opening the same, 2 cartons/gatta petti on which ADS quality product manufactured by ADS Spirits Pvt. Ltd. village Bhutian, Beri, Jhajjar, Haryana" is written, are taken out, that both the gatta petti are opened and on opening each of the petti 46 quarter bottles of 180 ml each of liquor bearing the label of "Impact Grain Whisky" for sale in Haryana only are taken out, that same are shown to witness who correctly identified the same as FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.4 of 17 recovered from accused and seized by the IO, that the katta 4 is opened with the permission of the court, that on opening the same, 2 cartons/gatta petti on which ADS quality product manufactured by ADS Spirits Pvt. Ltd. village Bhutian, Beri, Jhajjar, Haryana" is written, are taken out, that both the gatta petti are opened and on opening each of the petti 46 quarter bottles of 180 ml each of liquor bearing the label of "Impact Grain Whisky" for sale in Haryana only are taken out, that the same are shown to witness who correctly identified the same as recovered from accused and seized by the IO, that the katta 5 is opened with the permission of the court, that on opening the same, 2 cartons/gatta petti on which ADS quality product manufactured by ADS Spirits Pvt. Ltd. village Bhutian, Beri, Jhajjar, Haryana" is written, are taken out, that both the gatta petti are opened and on opening each of the petti 46 quarter bottles of 180 ml each of liquor bearing the label of "Impact Grain Whisky" for sale in Haryana only are taken out, that same are shown to witness who correctly identified the same as recovered from accused and seized by the IO, that the case property is Ex. P1.
6. In the cross examination PW-1 deposed that he left the PS for patrolling at about 10:00 pm on motorcycle however, he do not remember the DD number of his departure, that within 10 to 15 minutes of receiving secret information they saw the car coming as per the secret information, that IO reached at the spot within 10 minutes of giving information to the PS. He admitted that it was dark at the spot, that people were coming and going at the spot. He further deposed that it is a busy road. He admitted that there are several residents near the spot, that He admitted that none from the residents were asked to join the investigation by the IO. He admitted that all the proceedings in the present case except the site plan were done at the PS. He denied that case property was planted upon the accused and nothing was recovered from his possession and accused was lifted from his house and falsely implicated in the present case, that he is deposing falsely.
7. PW-2 is ASI Suresh Kumar, who deposed that on 25-26.10.2016, he was posted at PS Prasad Nagar as HC, that he was on night emergency duty from 08:00 pm to 08:00 am FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.5 of 17 (26.10.2016), that on that day at about 12:50 am, DD No 2-A regarding apprehension of one person with illicit liquor alongwith one car was assigned to him, that after receiving the DD, he went to the spot i.e. Near garbage house, tank road, that on the way HC Hasan Imam also met with him and he also took him alongwith him, that the DD is Ex. PA-3, that when they reached at the spot, Ct. Heera Lal and Ct. Praveen alongwith one person and one santro car and two bulky plastic sack bags were present there, that Ct. Praveen narrated the entire incident to him and handed over the accused along with the recovered plastic sack bags, that on interrogation the name of that person revealed as Karan Tendi @ Sunny, that he requested public persons to join the proceedings but none agreed and went without disclosing their names and addresses, that without waisting any time, he opened each katta and it was found containing 2 white colour carton each, that each carton is taken out and it was found containing 48 quarter bottles each of illicit liquor bearing label of ADS a quality product manufactured by ADS Spirits Pvt. Ltd., Bhutiyana, Jhajjar, Haryana, that he checked the Santro Car and on the rear seat of the car three plastic sack bags were found, that he opened each of the bags and all of them were found containing two gatta petti each of illicit liquor, that as the light was dim at the spot so the recovered case property along with the car and accused was taken to the PS by him along with Ct. Heera Lal, Ct. Parveen and Suresh Kumar, that after reaching the PS, he counted the bottles on each of the gatta petties found in the plastic sack bags, that each of the petti was found containing 48 quarter bottles of illicit liquor of 180ml each bearing the label of ADS Quality Product manufactured by ADS Spirits Pvt. Ltd. Bhutiyana, Jhajjar, Haryana, that he took out two quarter bottles as sample from each of the petty and the samples were given Serial No. AS-1 to AS-20 and the petties were given S. No. A-1 to A-A-10, that the remaining 46 quarter bottles were put in the same petty and two petties were put in the same plastic bag and each of the bag given S. No. K-1 to K-5, that the cap of the each of the samples was tied with white cloth and sealed separately with the seal of 'SK' and each of the plastic sack bags was also sealed separately with the seal of 'SK', that he filled form No.M-29 Ex. PW-2/A and case property was seized vide seizure memo Ex.PW-1/A and also seized the Santor Car EX. PW-1/B, that seal after use was FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.6 of 17 handed over to Ct. Heera Lal, that he recorded statement of Ct. Prveen Ex. PW-1/C and prepared rukka Ex. PW-2/B and presented the rukka to the DO for registration of FIR, that he along with Ct. Parveen returned back to the spot leaving the custody of accused with Ct. Heera Lal, that after sometime, he along with Ct. Parveen and Ct. Kanwar Pal returned back to the PS, that he recorded the disclosure statement of accused Ex.PW-1/E, that accused was arrested vide arrest memo Ex.PW-1/F and his personal search was conducted vide memo Ex.PW-1/G, that the case property was deposited in malkhana of PS and the accused was lodged in lock-up of PS after his medical examination, that he recorded statement of witnesses, that , on 18.11.2016, he sent the aforesaid samples to excise laboratory, ITO for chemical examination through Ct. Mahesh vide RC Ex. PA-5, that at same time, the samples were sent to excise lab, the same were intact and not tampered with, that after some days, he collected the report of chemical examiner Ex.PA-7, that after completion of investigation, he prepared the challan and filed the same before Hon'ble Court for judicial verdict, that case property is Ex. P-1 (colly).
8. In the cross examination, PW-2 deposed that he left the PS for patrolling at about 10:00 pm on motorcycle however, he do not remember the DD number of his departure, that he reached at the spot within 10-15 minutes of giving information to the PS. He admitted that it was dark at the spot, that people were coming and going at the spot. He further deposed that it is a busy road. He admitted that there are several residents near the spot, that none from the residents were asked to join the investigation by him, that all the proceedings in the present case except the site plan were done at the PS. He denied that case property was planted upon the accused and nothing was recovered from his possession and accused was lifted from his house and falsely implicated in the present case, that he is deposing falsely.
9. PW-3 is Ct. Heera Lal, who deposed that on 25-26.10.2016, he was posted at PS Prasad Nagar as Ct., that he was on night patrolling duty from 10:00 pm to 8:00 am (26.10.2016) along with Ct. Parveen, that at about 12:40 am, while patrolling, when FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.7 of 17 they reached near Garbage House, Tank Road, one secret informer met and informed that one person would bring heavy quantity of illicit liquor in white colour Santro Car bearing registration number 8982, that he may be caught if raided, that they telephonically informed the matter to the DO of PS Prasad Nagar, that after few minutes one Santro car bearing registration DL-4CAQ-8982 came from the side of Ravi Dass Marg and stopped near Garbage House, Tank Road, Delhi, that the secret informer pointed out towards that person as the same person regarding which he had given the secret information and he was discharged from the spot, that one boy came out from that car and opened the Dicky of the car and took out two bulky plastic sack bag from the car and placed the same near garbage house and set in the car after closing the car and started turning the car, that he along with Ct. Parveen immediately reached there and stopped that car and overpowered that person by opening the door of the driver seat, that he took possession of two plastic bags, that they requested public persons to join the proceedings but none agreed and went without disclosing their names and addresses, that in the meantime, HC Hasan Imam along with HC Suresh reached at the spot, they narrated the entire incident to the IO and handed over the accused along with the recovered plastic sack bags, that on interrogation the name of that person revealed as Karan Tendi @ Sunny, that IO requested public persons to join the proceedings but none agreed and went without disclosing their names and addresses, that without waisting any time, IO opened each katta and it was found containing 2 white colour carton each, that each carton is taken out and it was found containing 48 quarter bottles each of illicit liquor bearing label of ADS a quality product manufactured by ADS Spirits Pvt. Ltd., Bhutiyana, Jhajjar, Haryana, that IO checked the Santro Car and on the rear seat of the car three plastic sack bags were found, that IO opened each of the bags and all of them were found containing two gatta petti each of illicit liquor, that as the light was dim at the spot so the recovered case property along with the car and accused was taken to the PS by the IO along with him, Ct. Parveen and Suresh Kumar, that after reaching the PS, IO HC Suresh Kumar counted the bottles on each of the gatta petties found in the plastic sack bags, that each of the petti was found containing 48 quarter bottles of illicit liquor of 180ml each FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.8 of 17 bearing the label of ADS Quality Product manufactured by ADS Spirits Pvt. Ltd. Bhutiyana, Jhajjar, Haryana, that IO took out two quarter bottles as sample from each of the petty and the samples were given Serial No. AS-1 to AS-20 and the petties were given S. No. A-1 to A-A-10, that the remaining 46 quarter bottles were put in the same petty and two petties were put in the same plastic bag and each of the bag given S. No. K-1 to K-5, that the cap of the each of the samples was tied with white cloth and sealed separately with the seal of 'SK' and each of the plastic sack bags was also sealed separately with the seal of 'SK', that IO filled form No.M-29 and case property was seized vide seizure memo Ex.PW-1/A and also sealed the Santor Car EX. PW- 1/B, that seal after use was handed over to him, that IO recorded statement of Ct. Prveen Ex. PW-1/C and prepared rukka and presented the rukka to the DO for registration of FIR, that Ct. Parveen along with the IO returned back to the spot leaving the custody of accused with him, that after sometime, Ct. Parveen along with IO and Ct. Kanwar Pal returned back to the PS, that IO recorded the disclosure statement of accused Ex.PW-1/E, that accused was arrested vide arrest memo Ex.PW-1/F and his personal search was conducted vide memo Ex.PW-1/G, that the case property was deposited in malkhana of PS and the accused was lodged in lock-up of PS after his medical examination, that IO recorded his statement in this regard, that case property is Ex. P-1 (colly).
10. In the cross examination, PW-3 deposed that he left the PS for patrolling at about 10:00 pm on motorcycle however, he do not remember the DD number of his departure, that within 10 to 15 minutes of receiving secret information they saw the car coming as per the secret information, that IO reached at the spot within 10-15 minutes of giving information to the PS He admitted that it was dark at the spot, that people were coming and going at the spot. He further deposed that It is a busy road. He admitted that there are several residents near the spot. He deposed that none from the residents were asked to join the investigation by the IO. He admitted that all the proceedings in the present case except the site plan were done at the PS. He denied that that case property was planted upon the accused and nothing was recovered from FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.9 of 17 his possession and accused was lifted from his house and falsely implicated in the present case, that he is deposing falsely.
11. It is pertinent to note that vide separate statement dated 04.12.2018 accused has admitted the genuineness and correctness of report of FIR Ex. PA-1, endorsement on rukka Ex. PA-2, DD No. 2-A dated 26.10.2016 Ex. PA-3, Previous conviction report Ex. PA-4, RC No. 68/21/16 dated 18.11.2016 Ex. PA-5, entry no. 2843 in register no. 19 Ex. PA-6, Report of Chemical Examiner dated 08.12.2016 Ex. PA-7. Accordingly, Ramesh Bedi (Assistant Chemical Examiner), Ct. Mahesh, MHC(M) CP, ASI Ram Kishore, HC Brij Mohan (SCRB Operator), DO/ASI Rajinder and MHC(M) dropped from the list of witnesses vide order dated 04.12.2018.
12. It is also pertinent to mention here that vide separate statement of Ld. APP for the State dated 11.12.2018 witness HC Hasan Imam was dropped from the list of witnesses as Ct. Parveen has already been examined in this regard.
STATEMENT OF ACCUSED
13. PE was thereon closed by the Court and statement of accused was recorded u/s 281/313 CrPC vide order dated 15.12.2017, wherein the accused denied all the incriminating evidence against him and stated that he has been falsely implicated in this case. Since, the accused did not wish to lead any defence, hence, matter was fixed for final arguments straightaway.
14. Final arguments heard. File perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
15. In the case in hand the accused Karan Tendi @ Sunny is charge for the offence u/s FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.10 of 17 33/58 Delhi Excise Act.
16. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant/ state in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed as follows:-
17. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. Perusal of the record shows that the place of apprehension of accused alongwith illicit liquor was a crowded/residential place/public place and shops were also situated there despite that no efforts made by the IO to join the public/independent witness in the case in hand. It is apparent from the testimony of PWs that all the proceedings regarding seizure and sealing of case property was done by police officials who were posted in the same police station and not by any independent witness which makes it highly probable that the entire proceeding were conducted at the police station, that the case property was tampered with and that the alleged recovery was planted upon the accused at the police station.
18. PWs have categorically deposed about presence of independent public witnesses on the spot, however, no sincere efforts have been made to join them in investigation.
19. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining independent witnesses. FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.11 of 17
20. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
21. It is repeatedly laid down by this court that 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 evident that no such sincere efforts have been made, particularly when we find that place was residential area and one or two persons from the locality could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the public persons had declined to join the raiding party, the police could have later on taken legal action against such persons 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".
22. In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness 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".
23. Considering the aforesaid observations made by the Higher Courts, the omissions /failure on the part of investigating agency to join independent public witnesses creates FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.12 of 17 reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
24. Furthermore, the testimony of PWs, record and the perusal of rukka shows that the form M-29 Ex. PW-2/A, seizure memo Ex. PW-1/A Ex. PW-1/B were prepared prior to the dispatch of the Rukka and registration of the FIR. However, perusal of the said document clearly shows that the FIR number and other particulars of the present case are mentioned on the said document. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those document which were prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
25. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot. FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.13 of 17 In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
26. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
27. It is pertinent to mention here that investigation of the IO is silent regarding the source of liquor and IO had not inquired from the accused about the source of liquor recovered from the accused for the reasons best known to him.
28. It is pertinent to note that it is deposed by the all the police witnesses that all the proceedings of the present case were conducted at the PS as it was dark at the spot FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.14 of 17 and only site plan was prepared at the spot which substantiate the suggestion of the Ld. Counsel for the accused that accused was lifted from his house and false implication of the accused in the present case cannot be ruled out.
29. Further, perusal of the record reveals that witnesses has not filed DD entry of their arrival and departure. Prosecution witnesses have failed to prove documentary evidence or the DD entries to show their movement from the police station for patrolling or investigation of the case.
30. Regarding the value of making DD entry it is worth mentioning that as per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under :-
22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
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 and Police Posts where Register No. II is maintained.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 19872 (2) Crimes 29 the Hon'ble Delhi High Court "Wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the court will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.15 of 17 prosecution."
31. In the preset case, the above said provision appears to have not been complied with by prosecution. These omissions on the part of the prosecution create doubt on the version that the accused was personally searched / arrested with the alleged liquor at the spot by the said PWs.
32. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
33. The onus and duty to prove the case against the accused is upon the prosecution and FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.16 of 17 the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
34. Perusal of record reveals that information about the illicit liquor was given by some secret informer and said secret informer played an important role in initiating the proceedings and for nabbing the accused. However, no plausible explanation has been given for not citing and examining said secret informer as witness in order to prove the case of prosecution for the reasons best known to the investigating agency.
35. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, non joining and examination of independent public witnesses, the prosecution has failed to establish its case against the accused beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Karan Tendi @ Sunny stands acquitted of the offence u/s 33/58 Delhi Excise Act accordingly.
36. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
37. File be consigned to the record room after due compliance.
SHILPI Digitally signed
by SHILPI JAIN
Announced and Signed in the Open Court JAIN Date: 2018.12.17
17:39:38 +0530
on 17.12.2018 (Shilpi Jain)
MM-01(Central)/THC/Delhi
17.12.2018
FIR No. 458/16 PS Prasad Nagar State Vs. Karan Tendi @ Sunny Page no.17 of 17