Delhi District Court
State vs Ravi Raj Rajak on 22 March, 2024
IN THE COURT OF SH. AKSHAY SHARMA, METROPOLITAN
MAGISTRATE-02, SOUTH EAST, SAKET COURTS, DELHI.
FIR NO. 306/2013
PS. OKHLA INDUSTRIAL AREA
U/s. 33 EXCISE ACT
STATE VS 33 DELHI EXCISE ACT.
JUDGMENT
A. SL. NO. OF THE CASE : 291/2/13
B. DATE OF INSTITUTION : 02.12.2013
C. NAME OF THE : HC Jitender Kuma
COMPLAINANT
D. NAME OF THE : Ravi Raj Rajak s/o Sh. Gyarsa.
ACCUSED Vishesh s/o Virender Singh.
Kedar Yadav s/o Ranveer Yadav.
E. OFFENCE COMPLAINED
OF : U/s 33 Delhi Excise Act
F. PLEA OF ACCUSED : Pleaded not guilty.
G. FINAL ORDER : Acquitted
H. DATE OF COMMISSION
OF OFFENCE : 22.06.2013
I. DATE OF FINAL
ARGUMENTS : 30.01.2024
J. DATE OF SUCH ORDER : 22.03.2024
BRIEF FACTS
1. Brief facts of the instant case as unfolded from the charge- sheet are that when on the intervening night of 21-22.06.2013, HC Jitender along with Ct. Satish was on pickety duty at the Govind Puri Metro Station, then at around 10:50 PM, a secret informer gave information that one person will come in Ford Icon Car bearing no.DL3CAR0981, for going towards Noida, the said person is carrying illicit liquor in his car. On this information, barricade was put and the :2: checking of incoming vehicles was conducted. 04-05 passersby were also requested to join the investigation, however, none joined. At around 12:20 AM, Ford Icon Car of the afore-mentioned number, Vitro Colour came, the same was stopped. The driver revealed his name as Ravi Raj Rajak and the person sitting on the passenger seat revealed his name as Vishesh. The car was checked and it was found containing 10 cartons of illicit liquor. Out of which 06 cartons contained 48 quarter bottles each of Party Special Delux Whiskey for sale in Chandigarh only. One quarter bottle from each carton was kept as a sample and the samples were marked as 1A-6A. From the remaining 04 Cartons, 48 quarter bottles each were recovered of Bagpiper Whiskey for sale in Haryana Only 180ml. 01 quarter bottle each from them as well was kept as a sample and Marked from 7A-10A. Remaining quarter bottles were kept in a plastic sack and sealed with the seal of 'JK'. Form M-29 was prepared. Seal after use was handed to Ct. Satish. In the meanwhile, HC Ramesh Chand and Ct. Ram Kumar of the Excise Department also came on the spot and stated that they also had information about the same. Rukka was prepared by HC Jitender and Ct. Satish was sent for registration of FIR.
After the registration of FIR, case was assigned to HC Neeraj Kumar for further investigation. HC Neeraj prepared the site plan. Accused Ravi Raj and Vishesh were arrested. The ownership of the vehicle used in the commission of offence was ascertained and it came to surface that the registered owner Renu Khosla had sold the vehicle to True Value Rohan Vehicles Ltd. and the vehicle was further sold to Kedar Yadav, relevant documents of transfer was seized by the IO. The samples :3: were sent to the Excise Lab and after obtaining the Excise Result, present charge-sheet was filed against accused Ravi Raj, Vishesh and Kedar for judicial verdict.
CHARGE
2. Upon taking cognizance, accused persons were summoned and compliance of Section 207 CrPC was done. Consequently, on 27.11.2014, after hearing arguments on charge, charge u/s 33 Delhi Excise Act was framed against the accused Ravi Raj Rajak and Vishesh and charge u/s 47 Delhi Excise Act was framed against accused Kedar Yadav. Accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, case was put for prosecution evidence and the following prosecution witnesses were examined:
3.1. PW-1 Ct. Jeetamn his examination in chief is herein reproduced as under:
" On 21.06.2013 I was posted as Head Constable I was on special picket duty at Govindpuri Metro Station, Maa Anandmai Marg with Ct. Satish. Someone inform me about illicit liquor thereafter, I informed the SHO PS-OIA. Thereafter, SHO gave the direction to us. Thereafter, I put the barricade and started to check the vehicles. At night around 12.20 am car bearing no. DL3CAR-0981 (Icon Ford, color vitro) was coming from crown plaza hotel towards Kalkaji Mandir. We stop the said vehicle I interrogated them. One person who was sitting on the driver seat revealed his as Ravi Raj Rajak and other person revealed his name as Vishesh. We opened the dicky of the said car we saw illicit :4: liquor. Thereafter, we pull down the cartoon from the dicky and checked I found 10 cartoon of illicit liquor. In which 6 cartoons branded as "party special delux whiskey" and 4 cartoons branded as "bagpiper whiskey". In 6 cartoons were containing 48 quarter bottles (180 ml) written "party special delux whiskey sale in chandigarh only". One quarter bottle from each cartoon was taken as sample. The cartoons were given numbers as 1 to 6 and samples were given numbers as 1a to 6a. Thereafter, samples were sealed with seal "JK". The remaining 4 cartoons were also containing 48 quarter bottles each written "bagpiper whiskey sale in Haryana only". One quarter bottle from the said 4 cartoons were taken as sample and the same were wrapped with white cloth and sealed with seal "JK". The remaining whole illicit liquor was seized and the kutta was also sealed with seal "JK". I prepare the seizure memo of the seized car and keys as well as of illicit liquor Ex. PW1/B and PW1/A respectively bearing my signature at point "A". I also prepared form M-29 Ex. PW1/D bearing my signature at point "A" and prepared rukka Ex. PW1/C bearing my signature at point "A" and handed over the said rukka to Ct. satish. Thereafter, Ct. Satish went to the PS with the original rukka and lodged an F Thereafter, Ct. Satish alongwith HC Neeraj came back at spot with the original copy of FIR and rukka and further investigation handed over to HC Neeraj. I handed over accused persons and the case property to HC Neeraj. Accused Ravi Raj and Vishesh Kumar are present in the court today (correctly identified by the witness).
At this stage the case property is shown to me, I can identify the case property. MHC(M) produce the case property I identify the illicit :5: liquor sample branded as "party special deluxe whiskey" and "bagpiper whiskey" and I identify the photographs of the said car and case property Ex. P1 and P2 and Ex. X1 respectively."
3.2. PW2 Ct. Ranbir, his examination in chief is herein reproduced as under:
"On 01.07.2013, I was posted as Ct. at PS-OIA. On that day, I went to excise office alongwith sealed pullanda of case property of this case. I deposited the same in the excise office. When I received the sealed pullanda from MHC (M) PS-OIA, it was sealed with the seal of the 'JK'. I was not opened/torn the seal during my possession. After deposition the same, I returned PS-OIA and handed over RC (receiving copy) no.95/21/13 to MHC (M) PS-OIA. My statement is true and correct."
3.3. PW3 ASI Ramesh Chand, his examination in chief is herein reproduced as under:
"On 21.06.2013, I was posted as HC at Excise Department, ITO Delhi. On that day, at about 11:30, I alongwith Ct. Raj Kumar was present at M.B Road, Lal Kuan. One secret informer informed us one car make Ford Icon bearing registration no. DL-3CAR-0981 having illicit liquor in it and the same was coming from M.B Road, Mata Anandmai Marg and going towards Noida. I informed my senior officers about the same. Thereafter, I alongwith Ct. Raj Kumar started searching the said vehicle. Thereafter, at about 01:30 am, we found the said vehicle stationed near metro station, Govind Puri. We found that HC Jitender and Ct. Satish were already present there and the said vehicle was in their :6: possession. We found that accused persons namely Ravi Raj and Vishesh were present at the spot. We also found saw that 10 white plastic bags were sealed with the seal of 'JK' and their samples were also found there. Thereafter, HC Jitender prepared the rukka and sent Ct. Satish to PS for getting the case registered. After one hour, Ct. Satish alongwith HC Neeraj came back to the spot with copy of FIR and original rukka. Thereafter, HC Jitender handed over the said car and illicit liquor to HC Neeraj. HC Neeraj prepared the site plan at the instance of HC Jitender and recorded our statements. Thereafter, we left the spot.
Accused persons namely Ravi Raj and Vishesh are present in the court today, (correctly identified by the witness)."
3.4. PW-4 Ct. Raj Kumar, his examination in chief is herein reproduced as under:
"On 21.06.2013, I was posted as HC at Excise Department, ITO Delhi. On that day, at about 11:30, I alongwith ASI Ramesh Chand was present at M.B Road, Lal Kuan. One secret informer informed us one car make Ford Icon bearing registration no. DL-3CAR-0981 having illicit liquor in it and the same was coming from M.B Road, Mata Anandmai Marg and going towards Noida. ASI Ramesh Chand informed my senior officers about the same. Thereafter, I alongwith ASI Ramesh Chand started searching the said vehicle. Thereafter, at about 01:30 am, we found the said vehicle stationed near metro station, Govind Puri. We found that HC Jitender and Ct. Satish were already present there and the said vehicle was in their possession. We found that accused persons namely Ravi Raj and Vishesh were present at the spot. We also found saw :7: that 10 white plastic bags were sealed with the seal of 'JK' and their samples were also found there. Thereafter, HC Jitender prepared the rukka and sent Ct. Satish to PS for getting the case registered. After one hour, Ct. Satish alongwith HC Neeraj came back to the spot with copy of FIR and original rukka. Thereafter, HC Jitender handed over the said car and illicit liquor to HC Neeraj. HC Neeraj prepared the site plan at the instance of HC Jitender and recorded our statements. Thereafter, we left the spot.
Accused persons namely Ravi Raj and Vishesh are present in the court today, (correctly identified by the witness)."
3.5. PW-5 HC Satish Kumar, his examination in chief is herein reproduced as under:
"On 21.06.2013 I was posted as Head Constable I was on special picket duty at Govindpuri Metro Station, Maa Anandmai Marg with HC Jitender. Someone informed HC Satish about illicit liquor thereafter, he informed the SHO PS-OIA. Thereafter, SHO gave the direction to us. Thereafter, HC Jitender put the barricade and started to check the vehicles. At night around 12.20 am car bearing no. DL3CAR- 0981 (Icon Ford, color vitro) was coming from crown plaza hotel towards Kalkaji Mandir. We stop the said vehicle HC Jitender interrogated them. One person who was sitting on the driver seat revealed his as Ravi Raj Rajak and other person revealed his name as Vishesh. We opened the dicky of the said car we saw illicit liquor. Thereafter, we pull down the cartoon from the dicky and checked we found 10 cartoon of illicit liquor. In which 6 cartoons branded as "party special delux whiskey" and 4 :8: cartoons branded as "bagpiper whiskey". In 6 cartoons were containing 48 quarter bottles (180 ml) written "party special delux whiskey sale in chandigarh only". One quarter bottle from each cartoon was taken as sample. The cartoons were given numbers as 1 to 6 and samples were given numbers as 1a to 6a. Thereafter, samples were sealed with seal "JK". The remaining 4 cartoons were also containing 48 quarter bottles each written "bagpiper whiskey sale in Haryana only". One quarter bottle from the said 4 cartoons were taken as sample and the same were wrapped with white cloth and sealed with seal "JK". The remaining whole illicit liquor was seized and the kutta was also sealed with seal "JK". HC Jitender prepare the seizure memo of the seized car and keys as well as of illicit liquor Ex. PW1/B and PW1/A respectively, both bearing my signature at point "B". HC Jitender also filled form M-29 Ex.PW1/D and prepared rukka Ex. PW1/C and handed over the said rukka to me. Thereafter, I went to the PS with the original rukka and lodged the FIR. Thereafter, I alongwith HC Neeraj came back at spot with the original copy of FIR and rukka and further investigation handed over to HC Neeraj. HC Jitender handed over accused persons and the case property to HC Neeraj. Accused Ravi Raj and Vishesh Kumar are present in the court today (correctly identified by the witness). IO/HC Neeraj recorded disclosure statement of accused Vishesh Kumar and Ravi Raj vide Ex.PW5/A and Ex.PW5/B, both bearing my signatures at point 'A'. Accused Vishesh and Ravi Raj were arrested vide Ex.PW5/C and Ex.PW5/D, bearing my signature at point 'A'. I can identify the case property, if shown to me.:9:
The photographs of the said car and case property have been shown to the witness who correctly identified the same. The photographs of case property is already exhibited as Ex.P1 and P2 and Ex. X1 respectively."
3.6. PW6 Smt. Renu Khosla, his examination in chief is herein reproduced as under:
"I was the registered owner of vehicle bearing no. DL3CAR0981 make Ford Ikon. On 12.05.2013 I purchased a new car Maruti Alto K-10 LXI in exchange of my old Ford Ikon car bearing no. DL3CAR0981. I handed over my old car bearing no. DL3CAR0981 to Maruti true value M/s Rohan Motors Ltd. C-11, Sec-1, Noida and on the same day at about 5.20 pm I given the physical possession of same vide delivery receipt. Today I produced the original delivery receipt and copy of same is Ex. PW-6/A (OSR).
At this stage, 2 photographs of Ford Ikon bearing no. DL3CAR0981 are shown to the witness and correctly identified by the witness which is already Ex. P-1 and P-2".
3.7. PW-7 ASI Neeraj Kumar, his examination in chief is herein reproduced as under:
"On 22.06.2013 I was posted as PP-OIE Phase-3, PS-OIA as HC. On that day, on the instructions of SHO, present case was marked to me for registration of FIR. Thereafter I reached at Govindpuri Metro station where I met HC Jitender, Ct. Satish, HC Ramesh and Ct. Rajkumar from Excise Department. HC Jitender handed over the custody :10: of two accused persons Ravi Raj Rajak and Vishesh and informed me that they had apprehended them with the illicit liquor which was kept in the I-con ford car bearing no. DL3CAR0981. HC Jitender handed over seizure memo of the recovered liquor and car and some other documents. I prepared site plan at the instance of HC Jitender which is Ex. PW7/A bearing my signatures at point-A. After interrogation accused was arrested and his personal search was conducted vide seizure memo already Ex. PW5/C and PW5/D bearing my signatures at point-B. I recorded statement of HC Jitender and thereafter he was released. I also recorded statement of Ct. Rajkumar and HC Ramesh from Excise Department. Case property was deposited in Malkhana and after medical examination of accused persons, they were sent to lock-up. I also recorded the statement of Ct. Satish.
On 23.06.2013 I examined the registered owner namely Renu Khosla after serving notice u/s 91 CrPC to produce the documents. She informed me that she had sold the said vehicle and purchased the new vehicle in exchange from Rohan True Value, Noida. She had shown the relevant documents and I had seized the said photocopies vide seizure memo Ex. PW7/B bearing my signatures at point-A. On 26.06.2013 I alongwith Ct. Jamnu Ram went to Rohan Motors, Noida and they informed me that they have sold the said vehicle to Kedar. They handed over some relevant documents and I seized the said documents vide seizure memo Ex. PW7/C bearing my signatures at point-A. I recorded statement of Mr. Deepak Bhatnagar, sales manager of True Value, Rohan Motors company.:11:
On 01.07.2013 samples of the present case were sent to Excise Lab through Ct. Ranvir and Excise report was collected on 15.07.2013. On 20.09.2013 accused Kedar Yadav came to PP-OIE Phase- 3 and after interrogation he was arrested vide arrest memo Ex. PW7/D bearing my signatures at point-A. Thereafter accused was released on bail as he has produced the anticipatory bail order. After completion of investigation, I prepared the charge sheet and filed before the court. All the 3 accused persons are present in the court today (correctly identified by the witness)."
STATEMENT OF THE ACCUSED
4. After the examination of the material prosecution witnesses, prosecution evidence was closed and statement of the accused persons u/s 281 CrPC r/w Section 313 CrPC was recorded wherein accused persons stated that they have been falsely implicated in the instant case and preferred not want to lead any defence evidence.
FINAL ARGUMENTS
5. Final arguments were addressed. Ld. APP argued that the testimony of prosecution witness corroborate with each other and therefore, argued that accused be convicted.
6. Per contra, Ld. Counsel for the accused argued that no public witness came to join the enquiry. Further no videography/ photography of the seizure of the case property or its disposal is available on record. Further it was argued that there is no CCTV footage on record to indicate that the case property was seized from the present accused.
:12:7. DISCUSSION OF LAW, EVIDENCE AND DECISION THERE ON.
It is the case of prosecution that the accused Ravi Raj Rajak and Vishesh were found in possession of illicit liquor while they were carrying the same in the car make Ford Icon bearing registration no.DL3CAR0981.
It is pertinent to state that as per the charge-sheet and the testimony of the prosecution witnesses, the initial investigation of the instant case was conducted by HC Jitender as he was on the picket duty along with Ct. Satish and later on, the investigation was entrusted to HC Neeraj after the registration of the FIR. It is an admitted fact by the prosecution witnesses that HC Jitender had prepared the seizure memo of the illicit liquor and the involved car along with its key. The FIR was not registered till the time of preparation of seizure memo, however, the details of the FIR are very well present on both the seizure memos Ex.PW1/A and Ex.PW1/B. Further, from the perusal of the documents prepared by HC Neeraj and HC Jitender, it can be ascertained that the particulars of the FIR written on the seizure memos belongs to HC Jitender who has prepared that document. This particular fact cast a shadow of doubt on the case of the prosecution.
8. In Pradeep Saini v. State 2009 SCC OnLine Del 2803 it has been observed by Hon'ble High Court of Delhi that :
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution :13: the sketch Ex.PW-3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW-2/B. Surprisingly, sketch Ex.PW-3/D of the knife contains the number of the FIR registered in the present case. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW-2/B has appeared on the document, which was allegedly prepared before registration of the FIR. This gives rise to two inferences; either the FIR Ex. PW-
2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said document 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 knife in the manner alleged by the prosecution.
9. It is further pertinent to state in here that although it is admitted by the IO and other police witnesses that people from the general public were asked to join the investigation, however, none joined due to personal reasons. Surprisingly, perusal of record reveals that no efforts were made by the IO to join any public person in the investigation. It is also observed that the IO in his cross-examination stated :14: that no notices were given to the public persons to join the investigation.
In Surender @ Dheeraj v. State 2018 SCC OnLine Del 7506, it was observed by Hon'ble High Court of Delhi:
77. The arrests of the accused were all in public places and yet none of the arrests were in the presence of inde-
pendent public witnesses. Parrot-like statements to the effect that passersby were asked but declined to join are given by the IOs in the present case. This does not con vince the Court. In Kehar Singh v. State (1988) 3 SCC 609 : AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this contention, the Supreme Court observed:"It may be as technically argued by the learned Additional Solici- tor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is ar- rested and something is recovered from the personal Search. But it is well-known that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Na- jafgarh and for the seizure of the articles from the per son of this accused is no other evidence except the evi- dence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the pres- ence of an independent witness from the public, if not :15: of the locality, would have lent some support to the case of the prosecution."
78. In the present case every arrest is on the basis of both information provided by and identification by a secret informer who is not produced as a PW. Most arrests have taken place from open public places and during times when there is a lot of movement of the public. It is therefore difficult to accept that in every such instance, no independent witness was available. The circumstance of arrest has not been convincingly proved by the prosecution.
10. Another point which this court deems appropriate to highlight is that PW Renu Khosla is sited in the list of witnesses to prove her statement u/s 161 CrPC, however, no such statement is present on the judicial record. PW in her cross-examination also stated that police never recorded her statement.
11. It is also to be noted that the photographs of the car and the case property does not reflect the presence of case property in the car, moreover, the photographs of the case property have been taken after sealing them in the plastic sack hence the case property as such is also not visible in those photographs.
12. Further, it is also highlighted that it is mentioned in the charge-sheet that seal after use was handed over to Ct. Satish, by HC Jitender. However, it is admitted by PW 1 HC Jitender and PW Ct. Satish in their cross-examination that no seal handing over memo was prepared in the instant case. Non preparation of nay seal handing memo casts a :16: shadow of doubt on the case of the prosecution.
13. Considering the fact that :
a) no public witness was joined in the investigation despite the recovery and arrest was made at a public place,
b) that seizure memo was prepared before the registration of the FIR.
c) no seal handing memo was prepared.
14. Accordingly, in view of the aforesaid facts, it has to be concluded that the prosecution has failed to establish beyond reasonable doubt that the alleged recovery was infact made from accused Ravi Raj and Vishesh. When the factum of recovery has become doubtful, and the recovery is not proved beyond reasonable doubt, there arises no question to hold accused Kedar liable for the offence u/s 47 Delhi Excise Act on the ground of being owner of the car.
15. In view of the law and facts discussed above, prosecution has failed to prove its case beyond reasonable doubts. In view of the same accused Ravi Raj Rajak and Vishesh stands acquitted for the offence u/s 33 Delhi Excise Act and accused Kedar Yadav stands accquited for the offence u/s 47 Delhi Excise Act.
Pronounced in the open court on 22.03.2024.
Judgment contains total 16 pages, each signed by the undersigned.
(AKSHAY SHARMA) MM-02/SE/Saket/ND 22.03.2024