Delhi District Court
State vs Vijay on 3 June, 2023
IN THE COURT OF MS. DEEKSHA SETHI, MM-03, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-008909-2020 ID. No. : 1476/2020 FIR No. : 471/19 U/s : 33 Delhi Excise Act P.S. : Bindapur State v/s Vijay a) Name & address of the : Ct. Sonpal No. 861/DW complainant PIS No. 28081858 PS Bindapur, Dwarka District, New Delhi. b) Name & address of : Vijay accused S/o Sh. Lakhan Singh R/o Hno. Plot No. 8, Near DPS School, Firni Village, Matiyala Village, Delhi. c) Date of Commission of : 15.06.2019 offence d) Offence complained of : 33 Delhi Excise Act e) Plea of the accused : Pleaded not guilty. f) Ld. APP for the State : Sh. Manish Kaushik g) Final Order : Acquitted. h) Date of Institution : 24.02.2020 i) Judgment Pronounced on : 03.06.2023 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 15.06.2019, Ct. Sonpal (hereinafter referred to as the 'complainant') was on patrolling duty in beat no. 8 of PS Bindapur and at that time, one secret informer told him that one person along State v/s Vijay Page 1 of 14 Cr. Case No. 1476//2020 with illicit liquor will be going towards his residence situated at Plot No. 8, near DPS School, Firni Road, village Matiala. Thereafter, he along with the secret informer waited for the said person at Firni Road. At about 11:00 PM, they saw that one person was carrying a heavy plastic katta on his shoulder and on seeing him, the secret informer identified that person. The secret informer thereafter left the spot. He apprehended the said person at Firni Road. On checking the plastic katta, it was found to be containing illicit liquor. Name of the said person was revealed to be Vijay s/o Sh. Lakhan Singh. He shared the information with the duty officer of the police station. An FIR bearing no. 471/2019 was registered in the present case u/s 33 Delhi Excise Act. Investigation of the case was conducted by ASI Rajbir Singh.
Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Vijay. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against him, to which he had pleaded not guilty and claimed trial.
State v/s Vijay Page 2 of 14Cr. Case No. 1476//2020
4. During the trial, prosecution has examined the following witnesses:
(i) PW-1 ASI Arvind has deposed that on 16.06.2019, he was posted at PS Bindapur as MHC(M)CP. On the directions of IO HC Rajbir Singh, he collected the case property and samples which were sealed with the seal of 'RK' and deposited them at the malkhana of the police station vide mud no.
2649/2019. The relevant record was exhibited as Ex. P-1 (OSR). On 05.09.2019, he had handed over the sealed exhibits vide RC No. 233/21/19 to HC Hari Singh, who got the same deposited at the Excise Office, ITO for result analysis. A receipt was handed over to him (PW-1) by HC Hari Singh and the relevant record was exhibited as Ex. P-2 (OSR). The witness stated that the samples were not tampered with during the time they were in his possession. This witness was not cross-examined by Ld. Defence counsel despite having been granted an opportunity to do so.
(ii) PW-2 HC Hari Singh has deposed that on 05.09.2019, he was posted at PS Bindapur as a head constable. He had taken the exhibited which were sealed with the seal of 'RK' vide RC No. 233/21/19 dated 05.09.2019 from MHC(M), PS Bindapur along with Form M-29 and copy of seizure memo from MHC(M)CP and got the same deposited at Excise Office, Vikas Bhawan, ITO for result State v/s Vijay Page 3 of 14 Cr. Case No. 1476//2020 analysis. He had handed over the receipt regarding the same to the MHC(M) on the same day. The relevant record was exhibited as Ex. P-2. The witness stated that the samples were not tampered with during the time they were in his possession. This witness was not cross-examined by Ld. Defence counsel despite having been granted an opportunity to do so.
(iii) PW-3 HC Sonpal has deposed that he was posted at PS Bindapur as a constable. On 15.06.2019, when he was on patrolling duty in the area of beat no. 8, Matiala Village, a secret informer told him that one person along with illicit liquor will be going towards his residence situated at Plot No. 8, near DPS School, Firni Road, village Matiala. Thereafter, he along with the secret informer waited for the said person at Firni Road. At about 11 pm, they saw that one person was carrying a heavy plastic katta on his shoulder and on seeing him, the secret informer identified that person. The secret informer thereafter left the spot. He apprehended the said person at Firni Road. On checking the plastic katta, it was found to be containing illicit liquor. Name of the said person was revealed to be Vijay s/o Sh. Lakhan Singh. He shared the information with the duty officer of the police station. HC Rajbir Singh reached at the spot and he handed over the custody of the accused along with illicit liquor to them. The IO had asked four-
State v/s Vijay Page 4 of 14Cr. Case No. 1476//2020 five public persons to join the investigation, but none of them agreed and left the spot after citing their personal reasons and without disclosing their name and addresses. IO HC Rajbir Singh had checked the plastic katta and found it to be containing 50 quarter bottles (180 ml each) of Asli Santra Masaledar Desi Sharab for sale in Haryana only. IO took one quarter bottle as sample and he had put back the remaining quarter bottles in the plastic katta and tied its opening as well as the sample with a white cloth and sealed it with the seal of 'RK'. IO had filled Form M-29 at the spot and seized the recovered quarter bottles and sample from the possession of the accused vide memo Ex. PW- 3/A. IO had handed over the seal after its use to him. His statement Ex. PW-3/B was recorded by the IO. The IO prepared a tehrir and handed it over to him for getting an FIR registered. After the registration of FIR, he (PW-3) handed over a computerized copy of the FIR as well as original tehrir to the IO. The IO prepared site plan (Ex. PW-3/C) at his instance. After interrogation, IO recorded the disclosure statement of the accused (Ex. PW-3/D). IO arrested the accused and conducted his personal search vide memos Ex. PW-3/E and Ex. PW-3/F respectively. The case property along with sample, Form M-29 and copies of relevant documents were deposited at the malkhana of the police station. He had taken the State v/s Vijay Page 5 of 14 Cr. Case No. 1476//2020 accused to DDU Hospital for his medical examination. The witness identified the accused in court. Destruction order of the case property was exhibited as Ex. P-1. The witness identified the sample of case property, i.e., one quarter bottle (180 ml) of Asli Santra Masaledar Desi Sharab for sale in Haryana only. This witness was thoroughly cross- examined by Ld. Defence counsel.
(iv) PW-4 ASI Rajbir Singh has deposed that he was posted at PS Bindapur as a head constable. On 15.06.2019, on receipt of DD No. 59B regarding recovery of illicit liquor. He reached at the spot, i.e., at Firni Road, Matiala, Uttam Nagar and met Ct. Sonpal who handed over the custody of the accused along with plastic katta containing illicit liquor to him. Name of the accused was revealed to be Vijay s/o Sh. Lakhan Singh. He had asked four-five public persons to join the investigation, but none of them agreed and left the spot after citing their personal reasons and without disclosing their name and address. He checked the plastic katta and found it to be containing 50 quarter bottles (180 ml each) of Asli Santra Masaledar Desi Sharab for sale in Haryana only. He took one quarter bottle as sample and put back the remaining in the plastic katta and tied its opening with a white cloth and sealed it with the seal of 'RK'. He filled Form M-29 at the spot and seized the sample as well as remaining illicit State v/s Vijay Page 6 of 14 Cr. Case No. 1476//2020 liquor vide memo Ex. PW-3/A. He handed over the seal after its use to Ct. Sonpal. He recorded the statement of Ct. Sonpal (Ex. PW-3/B), prepared the tehrir and got an FIR registered through Ct. Sonpal, who handed over to him the computerized copy of FIR as well as original tehrir. He prepared the site plan Ex. PW-3/C at the instance of Ct. Sonpal. He recorded the disclosure statement of the accused Ex. PW-3/D. He arrested the accused and conducted his personal search vide memos Ex. PW-1/E and Ex. PW-3/F. The case property was deposited at the malkhana along with Form M-29 and copy of seizure memo. He got the samples deposited at Excise Office for result analysis through HC Hari Singh. The MHC(M) had produced the destruction order bearing no. Con./Misc./2020/7517 dated 11.02.2021 of the case property and the same was exhibited as Ex. P-1. MHC(M) also produced sample of the case property, i.e., one quarter bottle (180 ml) of Asli Santra Masaledar Desi Sharab for sale in Haryana only. The same was identified by the witness and was exhibited as Ex. P-2. This witness was thoroughly cross-examined by Ld. Defence counsel.
5. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR No. 471/2019 without contents, DD No. 59B and DD No. 50B both dated 15.06.2019 and Excise Control Laboratory Result. The State v/s Vijay Page 7 of 14 Cr. Case No. 1476//2020 above-said documents were exhibited as Ex. A-1, Ex. A-2, Ex. A-3 and Ex. A-4 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC r/w section 281 CrPC was recorded wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was innocent and falsely implicated. The accused chose not to lead any evidence in his defence.
7. It is argued by Sh. Manish Kaushik, Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of illicit liquor, i.e., 50 quarter bottles (180 ml each) of Asli Santra Masaledar Desi Sharab for sale in Haryana only. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the State v/s Vijay Page 8 of 14 Cr. Case No. 1476//2020 relevant provisions of law and given my thoughts to the matter.
Findings of the Court
10. It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11. The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the examination of PW-3 HC Sonpal and PW-4 ASI Rajbir Singh reveals that the IO ASI Rajbir Singh (PW-4) had asked four-five public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non- joining of public witness throws 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. However, no State v/s Vijay Page 9 of 14 Cr. Case No. 1476//2020 public person has been joined by the IO in the present case. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, 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 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.'' (Emphasis supplied)
13. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
14. Perusal of the record further reveals that there is a delay of about eighty days in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the State v/s Vijay Page 10 of 14 Cr. Case No. 1476//2020 CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
15. In the instant case, alleged recovery was made on 16.06.2019 yet the samples were sent to the Excise Control Laboratory for examination on 05.09.2019 as per the Excise Report, i.e., after about eighty days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
16.Perusal of the tehrir Ex. PW-4/A reveals that PW-4 ASI Rajbir Singh (the IO) had first prepared the seizure memo Ex. PW-3/A and Form M-29 and after that rukka was prepared and sent to the police station for registration of FIR through PW-3 HC Sonpal and thereafter, present FIR was registered. It is, therefore, clear that the seizure memo of the case property was prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, registered after the preparation of seizure memo of the case property Ex. PW-3/A, however, surprisingly it bears the FIR number and it is thus, amazing State v/s Vijay Page 11 of 14 Cr. Case No. 1476//2020 since the number of the FIR could have come to his knowledge (PW-4) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo, which came into existence before registration of the FIR. However, as discussed above, the seizure memo Ex. PW-3/A bears the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"... 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. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
(Emphasis supplied) State v/s Vijay Page 12 of 14 Cr. Case No. 1476//2020
17.In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"... 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."
(Emphasis supplied)
18. In the present case also, it remains unexplained as to how the FIR No. and its details figure on the top of the document, i.e., seizure memo Ex. PW-3/A. This creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said document was prepared later on or that State v/s Vijay Page 13 of 14 Cr. Case No. 1476//2020 the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.
19. Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that illicit liquor was recovered from the possession of the accused. The accused Vijay is, therefore, acquitted of the offence u/s 33 Delhi Excise Act.
20. This judgment contains 14 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
21. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
ANNOUNCED IN THE OPEN COURT Digitally
signed by
TODAY i.e. ON 03.06.2023 Deeksha Deeksha Sethi
Date:
Sethi 2023.06.03
15:03:49
+0530
Deeksha Sethi
Metropolitan Magistrate-03
South-West District/New Delhi
03.06.2023
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