Delhi District Court
Fir No.10/17 Ps Kirti Nagar State vs Raj Page No. 1 Of 10 on 14 October, 2019
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (WEST)
TIS HAZARI COURTS, DELHI
In the matter of :
State
Vs.
Raj
FIR No.10/17
P.S Kirti Nagar
JUDGMENT
1. Sr. No. of case 2945/2017
2. Date of institution 03.05.2017
3. Name of the complainant ASI Satpal
4. Date of commission of offence 09.01.2017
5. Name of accused Raj S/o Sh.Raj Kumar R/o
Jhuggi No.932, Industrial Area,
Kirti Nagar, Delhi.
6. Offence complained of U/s 33/38 Delhi Excise Act
7. Plea of accused Pleaded not gulity
8. Date of reserving the judgment 24.09.2019
9. Final order Convicted
10 Date of such judgment 14.10.2019
FIR No.10/17 PS Kirti Nagar State Vs.Raj Page no. 1 of 10
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The case of the prosecution is that on 09.01.2017 at about 1:35 pm in front of Matka Picket, DLF-36, Kirti Nagar, Delhi, accused Raj was carrying one bag of illicit liquor containing 65 quarter bottles of illicit liquor without any valid licence or permission and committed offence punishable under Section 33/38 Delhi Excise Act. Upon completion of investigation into the allegations against the accused person carried out by the Investigating Officer, a police report under Section 173 Cr.PC was filed in the court.
2. Provisions of Section of 207 Cr.P.C. were complied with. On appearance of accused person before Court and prima facie case having been made out, charge for the offence of under section 33/38 of Delhi Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. To prove the allegations against the accused persons beyond reasonable doubt, the prosecution examined 5 witnesses.
4. PW1 ASI Archna Dev being duty officer proved the FIR FIR No.10/17 PS Kirti Nagar State Vs.Raj Page no. 2 of 10 as Ex.PW1/A, endorsement on rukka as Ex.PW1/B and the certificate under Section 65-B of Evidence Act.
5. PW2 HC Anand Kumar being MHC(M) proved the relevent entry in register no.19 at serial no.2236 as Ex.PW2/A and RC no.51/21/17 as Ex.PW2/B.
6. PW3 Ct. Vijay is the recovery witness who deposed on the similar lines of PW4 Ist IO HC Umedi Lal.
7. PW4 is HC Umedi Lal who is Ist IO in the present case. He deposed that on 09.01.2017, he along with PW3 Ct.Vijay were on picket duty in front of Matka Picket DLF 36 Kirti Nagar and they were checking vehicles. At about 1:30 pm, one vehicle make TVS Jupiter blue colour bearing no.DL11SK 6792 came on Najafgarh Road, they saw one white colour katta on the scooty and they got suspicious. He signalled the said scooty to stop, however the scooty driver increased the speed and tried to flee away. PW3 Ct. Vijay barricaded the scooty and stopped it. The driver of the scooty was inquired from and his name was revealed as Raj. The scooty was parked on the road side. The said white colour katta was checked and it was found to be containing 65 quarter bottles. Out of the said FIR No.10/17 PS Kirti Nagar State Vs.Raj Page no. 3 of 10 65 quarter bottles, 14 were of Officer's Choice, 14 were of imperial blue and 37 quarter bottles were of Episode Classic Whiskey. The Episode Classic Whiskey were for sale in Haryana only. Thereafter, one sample bottle was taken out from each of the said three makes. The samples and the remaining quarter bottles were sealed with the seal of JP and pullanda was prepared. The sample and the case property was seized vide seizure memo already Ex.PW3/A. The scooty was seized vide seizure memo already Ex.PW3/B. Thereafter, he prepared the tehrir and the same is Ex.PW4/A which was handed over to Ct. Vijay to get the FIR registered. Ct. Vijay went to the PS and got the FIR registered and returned back to the spot along with copy of FIR and original tehrir. In the meanwhile, PW5 ASI Satpal also arrived at the spot as further investigation of the present case was handed over to him. Ct. Vijay handed over copy of FIR and original tehrir to PW5 ASI Satpal. He handed over the accused and the seized case property to PW5 ASI Satpal. ASI Satpal recorded his statement and prepared site plan at his instance. Thereafter, he left the spot. He correctly identified the accused. The case property was already destroyed by order marked PW3/1. Photographs of katta are already Ex.P1 and the scooty was Ex.P2. During trial of the case, MHCM has produced three quarter bottles one of make Officer's Choice Blue in unsealed condition. Second bottle is of Episode Classic Whiskey FIR No.10/17 PS Kirti Nagar State Vs.Raj Page no. 4 of 10 for sale in Haryana in unsealed condition and third bottle is of Imperial Blue whiskey in unsealed condition. This witness has correctly identified the bottles as having been seized from accused. The said three bottles are Ex.P3, Ex.P4 and Ex.P5 respectively.
8. PW5 ASI Satpal is the second IO of the case who deposed that on 09.01.2017, upon the information of the then Duty Officer of PS Kirti Nagar, he went to the spot i.e. Matka picket, DLF- 36 Kirti Nagar along with Ct. Vijay. Upon reaching the spot, he met Ist IO HC Umedi Lal who handed over him the accused and the sealed case property. Ct. Vijay also handed over to him copy of FIR and original tehrir. He completed seizure memo by mentioning FIR number on it. He prepared site plan at the instance of HC Umedi Lal vide memo Ex.PW5/A. He recorded statement of HC Umedi Lal and thereafter, HC Umedi Lal left the spot. Form M-29 is Ex.PW5/B. After due inquiry, the accused was arrested vide memo already Ex.PW3/C and personal search of accused was conducted vide memo already Ex.PW3/D. He also recorded disclosure of accused vide memo already Ex.PW3/E . He also seized the documents pertaining to seized scooty vide seizure memo Ex.PW5/C. Thereafter, accused was sent for medical examination and case property was deposited in the maalkhana of PS and accused was locked up in the lock up. Accused FIR No.10/17 PS Kirti Nagar State Vs.Raj Page no. 5 of 10 was correctly identified by the witness in the court. Photocopy of RC is marked as Mark PW5/D. The documents of purchase of scooty are collectively Ex.PW5/E colly. He recorded the statement of witnesses under Section 161 Cr.P.C and prepared the charge-sheet and filed the same before the Hon'ble Court.
9. Statement of the accused was recorded under Section 294 Cr.P.C in which he admitted the result of chemical analysis as Ex.A1.
10. In his examination recorded under Section 313 Cr.P.C r/w Section 281 Cr.P.C, the accused denied the entire evidence put to him. He categorically stated that he is innocent and he has been falsely implicated in the present case.
BRIEF REASONS FOR DECISION:-
11. Accused Raj has been charged for the offences under Section 33/38 Delhi Excise Act. The prosecution examined five witnesses to prove its case. PW3, PW4 and PW5 were the recovery witnesses in the presence of whom the alleged recovery of illicit liquor was made from the possession of the accused. All these witnesses have corroborated the testimonies of each other in material FIR No.10/17 PS Kirti Nagar State Vs.Raj Page no. 6 of 10 particulars in order to establish that the accused was in possession of illicit liquor.
12. It is argued on behalf of accused that no public witness has been examined during investigation and no notices were given to the public persons who refused to join the investigation. In case of Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Hon'ble Apex Court held that ''It is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witness is not absolute. If the police officer is unable to join any public witnesses after genuine efforts, the recovery made by the police officer would not be vitiated.'' Now-a-days, in a busy city like Delhi, it is the general phenomenon that hardly any person agrees to become a witness to the criminal cases. Nobody feels free to spare even smallest span of time at the time of investigation or trial. I am of the opinion that non-joining of public person as witnesses to the recovery of illicit liquor is not fatal to the case of prosecution when the case of the prosecution is otherwise provable.
13. Further it is argued on behalf of the accused that there are discrepancies in the testimonies of PW3 and PW4 as it is stated by PW3 that the IO handed over the seal to him after sealing the property FIR No.10/17 PS Kirti Nagar State Vs.Raj Page no. 7 of 10 whereas IO PW4 deposed that the seal remained with him. This argument would be of no resort to the accused as the fact is that the case property was sealed and was produced in a sealed condition in court. Minor discrepancies in the statement of the witnesses is due to lapse of time. It has been held in judgment titled as Sunil Kumar Sambhudayal Gupta & Ors. vs State Of Maharashtra reported as (2011) 2 SCC (Crl) 375 that "While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons." (Vide: State Represented by Inspector of Police Vs. Saravanan & Anr, AIR 2009 SC 152).
Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence.
FIR No.10/17 PS Kirti Nagar State Vs.Raj Page no. 8 of 10 (Vide : State of Rajasthan Vs. Rajendra Singh, (2009) 11 SCC
106).
The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh V. State of Uttar Pradesh, (2009) 11 SCC 334)."
14. In his statement under Section 313 Cr.P.C, the accused simply took the plea that he has been falsely implicated in the case without any reason. He did not lead any evidence in this regard. Moreover, keeping in view the huge quantity of illicit liquor and in absence of any previous enmity with the police officials, I am of the opinion that plea of accused of false implication is untenable.
15. Prosecution has succeeded to prove its case beyond reasonable doubt to the effect that accused Raj was carrying one bag of illicit liquor containing 65 quarter bottles of illicit liquor without FIR No.10/17 PS Kirti Nagar State Vs.Raj Page no. 9 of 10 any valid licence or permission and has thus committed offence under Section 33/38 Delhi Excise Act. He is accordingly convicted for the offence under Section 33/38 Delhi Excise Act
16. File be consigned to Record Room.
Digitally signed by POOJA POOJA TALWAR
TALWAR Date: 2019.10.19
13:06:44 +0400
Announced in the open court (POOJA TALWAR)
on 14.10.2019 Chief Metropolitan Magistrate,
West District, Tis Hazari Courts, Delhi.
Certified that this Judgment contains ten (10) pages and each page is signed by me. POOJA Digitally signed by POOJA TALWAR TALWAR Date: 2019.10.19 13:06:52 +0400 (POOJA TALWAR) Chief Metropolitan Magistrate, West District,Tis Hazari Courts, Delhi 14.10.2019 FIR No.10/17 PS Kirti Nagar State Vs.Raj Page no. 10 of 10