Delhi District Court
State vs . Munna Giri @ Raju on 9 November, 2022
IN THE COURT OF SH AYUSH SHARMA: MM-02
NORTH WEST DISTRICT, ROHINI COURTS: NEW DELHI.
State vs. Munna Giri @ Raju
FIR No. : 323/20
U/s : 33 Delhi Excise Act
PS : Kanjhawala
JUDGMENT
a) Sl. No. of the case : 1840/22 b) Date of institution of the case : 26.02.2022 c) Date of commission of offence : 31.08.2020 d) Name of the complainant : HC Pradeep Kumar, No.8916/DAP e) Name & address of the accused : Munna Giri @ Raju S/o Sh. Arjun Giri, H.No.84, Main stand wali Gali, Village Punjab Khor, Kanjhawala, Rohini, Delhi. f) Offence charged with : 33 Delhi Excise Act g) Plea of the accused persons : Pleaded not guilty. h) Arguments heard on : 03.11.2022 i) Final order : Acquitted j) Date of Judgment : 09.11.2022 BRIEF STATEMENT OF REASONS FOR DECISION: FIR No.323/20 State vs Munna Giri @ Raju PS Kanjhawala Page no.1/11
1. Briefly stated that the case of the prosecution against the accused is that on 31.08.2020 at about 5.45 pm at road going from Punjab Khor to Khairpur near talab, Delhi, within the jurisdiction of Police Station Kanjhawala, accused was found in possession of a plastic katta containing 24 bottles of illicit liquor bearing label Malta Masaledar Desi Sharab for sale in Haryana only, without having any permit or license for possession or transportation of the same. On that basis, the present FIR was registered against the accused. Upon completion of investigation, charge sheet u/s 33 of Delhi Excise Act was filed and the accused was sent for trial.
2. The ld. Predecessor of this court took cognizance of the offence and issued process against the accused. Pursuant to the appearance of the accused, he was supplied with the copy of of chargesheet in compliance of Section 207 CrPC. Upon hearing the arguments, vide order dated 12.05.2022, charge under Section 33 Delhi Excise Act was ordered to be framed against the accused. The accused pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
3. In order to establish its case against the accused persons, prosecution examined five witnesses namely HC Pradeep Kumar No. 8916/DAP ('PW1'), HC Pradeep Kumar 3482/DAP ('PW2'), Ex. SI Mohit ('PW3'), HC Chunni lal ('PW4') and ASI Sumit Kumar ('PW5').
4. PW1 deposed that on 31.08.2020 at around 5.45 pm, he along with PW4 reached near Talab on road going from Punjab Khor to Khairpur and noticed a person carrying a plastic katta on his head. He further deposed that on suspicion that person was stopped and his katta was checked. On checking, the katta was found containing bottles of illicit liquor. He further deposed that he conveyed the information to the PS and after sometime, PW2/IO came to the spot and the custody of the accused and the case property was handed over to IO. He deposed that thereafter IO checked the said katta and found that the same was containing 24 bottles of illicit liquor. Thereafter, IO separated one bottle as sample and sealed it with the seal of 'PK'. He further deposed that the remaining bottles in the katta were also sealed with the seal of 'PK'. He further deposed that the IO filled the form M-29 on the spot, seized the case property FIR No.323/20 State vs Munna Giri & Anr.
PS Kanjhawala Page no.2/11vide memo Ex. PW1/A and recorded his statement Ex. PW1/B. Thereafter, IO/PW2 prepared the tehrir and handed over the same to him for getting the FIR registered. He further testified that he went to PS for registration of FIR and after registration came to the spot and handed over the copy of FIR and original tehrir to IO/PW2. He further deposed that IO served the notice u/s 41 A CrPC to accused, prepared the site plan Ex. PW1/C and recorded the disclosure statement of accused Ex. PW1/D. The case property was thereafter taken to PS and deposited in Malkhana. He identified the accused and the case property Ex. P1 (colly) correctly.
5. During PW1's cross-examination, he deposed that he does not remember the DD entry of his departure. He further deposed that the distance between the PS and spot is about 7 kms. He further testified that there were residential houses near the spot and the spot is a public space. He further admitted that he did not check the accused in the presence of any public person. He testified that he gave the information in the PS at around 6 pm and the IO reached the spot after 20-25 minutes. He further deposed that IO requested some public persons to join the investigation, however, none of them agreed and left the spot without telling their names and addresses. However, no legal action was taken by IO against them. He further stated that he left the spot for registering the FIR at around 8 pm and returned back after 30 minutes. He deposed that he does not remember as to from where the marker which was used by IO for mentioning the details of the case on the katta was brought by him. He denied that nothing was recovered from the possession of the accused or the case property was planted upon him.
6. PW2/IO deposed that on receipt of DD entry no. 89 A on 31.08.2020 regarding recovery of illicit liquor, he went to the spot i.e. on road from Punjab Khor to Kairpur near Talab. He further deposed that he met PW1 and PW4 and they produced the plastic katta along with the accused. He further testified that he requested 3-4 public persons to join the investigation, however, none of them agreed and left the spot without telling their names and addresses. He further deposed that the name of accused was revealed as Munna Giri @ Raju and on checking the katta 24 bottles of FIR No.323/20 State vs Munna Giri & Anr.
PS Kanjhawala Page no.3/11750 ml of illicit liquor with label Malta Masaledar Desi Sharab for sale in Haryana only was found. He thereafter took out 1 bottle as sample and sealed the remaining bottles with the seal of PK and filled the Form No. 29 Ex. PW2/A at the spot. He further deposed that he seized the case property vide memo Ex. PW1/A, recorded the statement of PW1 Ex. PW1/B and prepared the tehrir Ex. PW2/B and handed it over to PW1 for getting the FIR registered, who accordingly got the same done and returned to the spot. He thereafter prepared the site plan at the instance of PW1 and PW4 Ex. PW1/C and served notice under Section 41 A CrPC Ex. PW2/C to accused. He also recorded the disclosure statement of accused Ex. PW1/D, deposited the case property in malkhana and relieved the accused from the investigation on the spot. On 25.09.2020, he sent PW4 to collect the samples from malkhana and deposit the same in Excise laboratory, Delhi. He identified the accused and the case property Ex. P1 (colly) correctly.
7. During PW2's cross-examination, he deposed that he received the DD No. 89 A at around 6.07 pm. He further deposed that he did not take any legal action against the public persons who refused to join the investigation. He further stated that he visited the nearby houses at the spot, but found them closed. He further testified that he did not give any information regarding the recovery of illicit liquor to excise department. He stated that he had taken the IO bag with him which was containing the marker. He denied that the accused has been falsely implicated and the case property was planted on him.
8. PW3 deposed that on 14.10.2021 investigation of the present case was handed over to him and after collecting the excise result from the malkhana, he prepared the challan and filed it before the court.
9. During PW3's cross-examination, he deposed that during the period from 14.10.2021 till the filing of charge sheet, he did not make any enquiry from the witnesses or the accused in the present matter. He denied that he filed the charge sheet without conducting any proper investigation.
FIR No.323/20 PS Kanjhawala Page no.4/1110. PW4 deposed that on 31.08.2020, he was on patrolling duty with PW1 in the village Punjab Khor. He testified that they parked their motorcycle on the main road and were patrolling on foot and when they reached Khairpur Road near Talab at about 5.45 pm, they noticed a person coming from the side of Khairpur with a katta on his head. He further deposed that the person after seeing them, took a U-turn and started walking fastly. The person was apprehended and enquired about the katta to which he did not give any satisfactory answer. He deposed that the katta was checked and it was found containing bottles of illicit liquor. PW1, thereafter, conveyed the information to the PS and after sometime PW2 came to the spot. The custody of accused along with case property was handed over to PW2. He testified that PW2 checked the katta and it was found containing 24 bottles of illicit liquor with label Malta Masaledar Desi Sharab for sale in Haryana only. PW2 took out one bottle as sample and sealed the remaining bottles in the katta with the seal of PK. He further deposed that IO filled the Form No. 29 at the spot, recorded the statement of PW1 and seized the recovered case property vide memo Ex. PW1/A. IO, thereafter prepared the tehrir and handed it over to PW1 to get the FIR registered, who accordingly did so and returned at the spot and handed over the copy of FIR and original tehrir to PW2. He further testified that PW2 prepared the site plan at the instance of him and PW1 Ex. PW1/C and recorded the statement of accused Ex. PW1/D. He further testified that that on 25.09.2020, he collected the samples of the present case from Malkhana and deposited the same in Excise laboratory. He identified the accused and the case property Ex. P1 (colly) correctly.
11. During PW4's cross examination, he deposed that public persons were passing through the spot and IO requested the public persons to join the investigation. He further deposed that the public persons did not tell their names and addresses and no legal action was taken against them. He further testified that PW2 reached the spot within 20-25 minutes of the call and PW1 took the rukka to the PS at around 7.40 pm and returned to the spot at around 9 pm. He denied that there no street light near the spot, however, he admitted that the position of street light has not been shown in the FIR No.323/20 State vs Munna Giri & Anr.
PS Kanjhawala Page no.5/11site plan Ex. PW1/C. He denied that the accused has been falsely implicated and the case property was planted on him.
12. PW5 deposed that on 31.08.2020, he was working as duty officer in PS Kanjhawala and proved the departure entry DD No. 86 A of PW1 and PW4 as Ex. PW5/A. He also proved DD no. 89 A Ex. PW5/B regarding receipt of call of the recovery of illicit liquor. He further deposed that he received the rukka Ex. PW5/D at around 8.20 pm from PW1 and made an endorsement on that Ex. PW5/E and registered the present FIR. He thereafter handed over the copy of FIR and original tehrir to PW1. During his cross-examination, he denied that he was not posted as duty officer on such date and time.
13. Vide separate statement recorded u/s 294 CrPC, accused admitted the genuineness of document register no. 19 of case property. Accordingly, vide order dated 01.10.2022, PE was closed. In the statement recorded u/s. 313 CrPC, accused denied the case of the prosecution and pleaded innocence. He stated that he has been falsely implicated by the IO in order to grab money from him and he was lifted from his way when he was coming back after finishing his work from field. He stated that it is a false case and did not opt to lead defence evidence.
14. Ld. APP has submitted that the case is proved beyond reasonable doubt as the witnesses have identified the case property and the accused during their deposition. He has submitted that due to non-cooperation by public witnesses it gets difficult to ensure their presence at the time of seizure of case property. It is also submitted that such offences cause great revenue loss to the state and the accused be convicted of the offence charged u/s 33 Delhi Excise Act.
15. Per Contra, Ld. Counsel for defence has submitted that that accused is completely innocent and has been falsely implicated in the present case and the alleged recovery of illicit liquor has also been falsely planted upon him. It is further submitted that not joining the public witnesses despite availability and not serving any notice to them by the police officials cast shadow of doubt on the story of prosecution. He has also argued that the seal was not handed to an independent witness and FIR No.323/20 State vs Munna Giri & Anr.
PS Kanjhawala Page no.6/11therefore, tampering with the contents of the sealed parcel can also not be ruled out. At the end, he has submitted that the prosecution has completely failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
16. I have heard the submissions of Ld. APP for State and the Ld. Counsel for accused and carefully perused the judicial record. The scrutiny of testimonies of PW1, PW2 and PW4 reveal that the accused was caught red handed with a katta containing illicit liquor of 24 bottles, of Malta Masaledar Desi Sharab for sale in Haryana only.
17. The recovery is alleged to have been effected at about 5.45 pm on 31.08.2020, near Talab on the road going from Punjab Khor to Kahirpur, Delhi. The place of recovery and timing of arrest is such that the presence of independent witnesses cannot be ruled out as the place of recovery is clearly located in an area where public persons would be readily available. PW1 in his cross has admitted that the accused was not checked in the presence of any public witnesses. Pertinent is that it is not the case of the prosecution that no public witnesses were available at that time, rather PW1 & PW4 in their cross have specifically stated that the spot is a public place and public persons were passing through the spot. Whether association of such persons as public witnesses was possible in the facts and circumstances of this case is a fact and the burden to prove the same lies on prosecution. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion.
18. The aforesaid flaw in the investigation makes the story of the prosecution unworthy of credit, specifically in the light of judgment in the case titled Anoop Joshi vs. State 1992 (2) C. C. Cases 314 (HC) wherein Hon'ble High Court of Delhi observed:
FIR No.323/20State vs Munna Giri & Anr.PS Kanjhawala Page no.7/11
"18. It is repeatedly laid down by this court that in such case, it should be shown by the police that sincere efforts had been made to join independent witnesses. In the present case, it is evident to note 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 laws while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
19. There is nothing in the testimony of PW1, PW2 & PW4 whether any sincere efforts were made by them or the IO to join independent witnesses in the proceedings / investigation. The only explanation accorded by PW1 & PW4 (in their cross) is that they refused to join the proceedings and left the spot without disclosing their names and addresses. Such an ordinary reply/ explanation of the PW1 does not support the case of prosecution. Pertinent is the Section 100 (4) CrPC also mandates the police official conducting search to join two respectable persons of the society. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the local police in the present case cannot be ruled out. The aforesaid view of this court is further fortified by the observations made by Hon'ble Delhi High Court in Pawan Singh v. The Delhi Administration 1989 Cri.L.J 127, wherein a similar view has been taken.
20. This court is conscious that the case of the prosecution cannot be thrown out or doubted on the sole ground of non-joining public witnesses. However, the aforesaid lapse on the part of the police officials assumes significance on account of another grave contradiction apparent in document Ex. PW1/A. PW1 & PW4 deposed that the IO/PW2 seized the illicit liquor vide memo Ex. PW1/A, filled form No. 29, recorded the tehrir and sent PW1 for registration of FIR to PS. It is therefore, clear that the seizure memos were prepared at the spot before the tehrir was sent to police station FIR No.323/20 State vs Munna Giri & Anr.
PS Kanjhawala Page no.8/11for registration of FIR. The FIR was therefore, admittedly registered after the preparation of seizure memo Ex. PW1/A. Accordingly, it follows that the number of FIR would come to the knowledge of IO/PW2 only after a copy of FIR is brought to the spot by PW1. Thus, ordinarily, the FIR number should not find mention in the seizure memo Ex. PW1/A, which came into existence before the registration of FIR. This court notices that surprisingly, the seizure memo Ex. PW1/A bears the FIR number and the case details in the same ink and the same handwriting in which the documents were prepared. It raises a doubt that the entire paper work was done by the police officials at the police station itself. This also raises doubt about the recovery of the said case property from the present accused and strengthens the possibility of planting of the case property upon the accused. In this regard, reference can be made to the judgment of Hon'ble High Court of Delhi in case titled as Mohd Hasim V/s State 1999 VI AD (Delhi) 569 wherein it was observed:
"4. 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 memos (Ex. PW1/A) and the report submitted under 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 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 circumstances 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."
21. It is further notable that PW2 has deposed that the sample and the case property were FIR No.323/20 State vs Munna Giri & Anr.
PS Kanjhawala Page no.9/11sealed with the seal of 'PK' by him and he handed over the seal after use to PW1, however, no handing over memo/or any other document regarding the same was prepared. There is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station. In these circumstances, the possibility of tampering with case property cannot be ruled out. Even otherwise, the failure to prepare any such document for this purpose also leads to a missing link in the entire series of investigation raising doubt over the reasonable and rational manner of investigation as claimed by prosecution.
22. To point further the other infirmities in the prosecution case, PW1 in his cross has stated that he left the spot for registration of FIR at about 8 pm and returned back to the spot after 30 minutes. However, PW4 has deposed that PW1 took the rukka at about 7.40 pm and returned back to the spot at around 9 pm. Pertinent is that PW5 has deposed that he received the rukka at 8.20 pm from PW1. This contradiction as to the timings in the testimonies of PW1, PW4 and PW5 also raises serious doubt as to the recovery of illicit liquor from the possession of accused and creates a dent in the case of the prosecution.
23. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., 1990(3) S.C.C. 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R. (Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to FIR No.323/20 State vs Munna Giri & Anr.
PS Kanjhawala Page no.10/11prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
24. The fact that no independent witnesses were cited or examined, possibility of misuse of seal has not been ruled out, appearance of FIR number and case particulars on the seizure memos has not been explained and the other infirmities as pointed out above, when kept in juxtaposition to each other, cast a serious doubt over the case of the prosecution. In view of what has been taken note by me, the possibility of false implication of the accused cannot be ruled out. Thus, in view of the foregoing analysis, this court is of the considered opinion that the aforesaid contradiction in the case of the prosecution are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend the benefit of doubt to them. Hence, accused Munna Giri @ Raju S/o Arjun Giri is held not guilty and stands acquitted of the offence punishable under Section 33 of Delhi Excise Act, 2009. File be consigned to record room as per rules.
Announced in Open court (Ayush Sharma) today i.e. 09.11.2022. MM-02/Rohini/Delhi 09.11.2022 FIR No.323/20 State vs Munna Giri & Anr. PS Kanjhawala Page no.11/11