Delhi District Court
State vs Kalicharan on 3 July, 2024
IN THE COURT OF MS. EBBANI AGGARWAL,
JUDICIAL MAGISTRATE FIRST CLASS-03,
NORTH-WEST, ROHINI COURTS, DELHI
Cr. Case No. 5558/2019
FIR No.: 569/2019
P.S.: Raj Park
State Vs. Kali Charan
U/s. 33 of Delhi Excise Act, 2009
STATE
VERSUS
KALI CHARAN
S/o Sh. Anokhe Lal
R/o House No. F-4/212, Sultanpuri
Delhi
Date of institution of case : 20.09.2019
Date of reserving the judgment : 03.07.2024
Date of pronouncement of judgment : 03.07.2024
JUDGMENT
CNR No. DLNW020257102019
Date of Commission of Offence 26.07.2019
Name of the complainant Ct. Ombir
Name of the accused Kali Charan
Offence complained or proved Section 33 of Delhi
Excise Act, 2009
Plea of the Accused Pleaded not guilty
Final Order Acquitted
Digitally
signed by
EBBANI
EBBANI AGGARWAL
AGGARWAL Date:
2024.07.03
13:06:43
+0530
State vs. Kali Charan FIR no. 569/2019 P.S. Raj Park Page No. 1 of 7 BRIEF FACTS, COGNIZANCE AND CHARGE
1. Facts, in brief, as alleged by the prosecution are that on 26.07.2019 at about 07:15 PM, in front of Jhuggi No. A-36, Block-F6, HGI Labour Colony, Sultanpuri, Delhi, within the jurisdiction of P.S. Raj Park, accused Kali Charan was found in possession of illicit liquor for sale in Haryana, without any license or permit.
2. Investigation was carried out and upon completion, the in- stant charge-sheet alleging an offence punishable under Sec- tion 33 of Delhi Excise Act, 2009 was filed against the ac- cused. Thereafter, cognizance of the offence was taken and the accused was summoned.
3. Upon appearance of accused, copy of charge sheet and an- nexed documents was supplied to the accused in compliance of Section 207 of Code of Criminal Procedure, 1973. (here- inafter referred to as "Cr.P.C.")
4. Prima facie case was made out against the accused Kali Cha- ran and charge for an offence punishable under Section 33 of Delhi Excise Act, 2009 was framed against him on 18.10.2019 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
PROSECUTION EVIDENCE
5. In order to substantiate the allegations, the prosecution examined three witnesses, i.e., PW-1 HC Ombir who was on patrolling duty on the date of incident, PW-2 Ct. Hitesh who had deposited the sample at Excise Lab and PW-3 ASI Udayan Rana is the IO who has filed the present chargesheet.
Digitally signed by EBBANI State vs. Kali Charan FIR no. 569/2019 P.S. Raj Park Page No. 2 of 7 EBBANI AGGARWAL AGGARWAL Date:
2024.07.03 13:06:57 +0530 PW-1 and 3 have correctly identified the accused as well as case property which is Ex. P-3 (Colly) and have deposed on similar lines as the case of prosecution. Further, PW-1, PW-2 and PW-3 were duly cross-examined by the Ld. Counsel for the accused wherein all the three witnesses have further sup- ported the case of the prosecution.
6. Statement of accused in terms of Section 294 of Cr.P.C. was recorded wherein the accused admitted the genuineness of FIR no. 569/2019 PS Raj Park i.e Ex. A-1, Endorsement on Rukka which is Ex. A-2, Certificate u/s 65-B Indian Evidence Act regarding the aforesaid FIR i.e. Ex. A-3, DD No. 41-B which is Ex. A-4, DD No. 59B which is Ex. A-5 and Excise Result which is Ex. A-6, without admitting the contents of the same.
7. In view of the above, witnesses mentioned at serial no. 2, 3, and 5 in the list of prosecution witnesses were dropped and since, no other witness was left to be examined, prosecution evidence was closed on 31.05.2024.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.
8. Statement of accused person in terms of Section 313 Cr.PC. read with Section 281 Cr.P.C. was recorded wherein all the incriminating evidence were put to the accused, to which the accused stated that he has been falsely implicated in this case. Further, the accused person did not opt to lead defence evidence and the matter was listed for final arguments.
FINAL AGRUMENTS
9. It has been argued by Ld. APP for the state that from the oc- ular and documentary evidence on record, prosecution has been able to prove beyond reasonable doubt that accused was Digitally signed by EBBANI State vs. Kali Charan FIR no. 569/2019 P.S. Raj Park Page No. 3 of 7 EBBANI AGGARWAL AGGARWAL Date:
2024.07.03 13:07:06 +0530 found in possession of illicit liquor without permit and has submitted that accused be convicted of the offence charged.
10.Per contra, it has been argued by Ld. Counsel for the accused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. Counsel that non-joinder of public witness despite availability casts shadow of doubt on prosecution story. It is further argued by Ld. Counsel for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to an independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and there- fore, the accused be acquitted of the alleged offence.
DISCUSSION ON MERITS
11. This Court has carefully perused the case record, has heard arguments advanced by Ld. APP for the state as well as by Ld. Counsel for accused and has carefully gone through the entire material available on record and evidence led on be- half of the prosecution.
12. In order to establish commission of offence under Section 33 of Delhi Excise Act, 2009, prosecution has to prove possession of illicit liquor, without any licence or permit beyond reasonable doubt. Therefore, short point for determination before this Court is as under:
"Whether on 26.07.2019 at about 07:15 PM, in front of Jhuggi No. A-36, Block-F6, HGI Labour Colony, Sultanpuri, Delhi, within the jurisdiction of P.S. Raj Park, accused Kali Charan was found in possession of illicit liquor, without any license or permit?"
Digitally signed by State vs. Kali Charan FIR no. 569/2019 P.S. Raj Park Page No. 4 of 7 EBBANI EBBANI AGGARWAL AGGARWAL Date:
2024.07.03 13:07:13 +0530
13.In order to prove the recovery of the illicit liquor from accused, prosecution has relied upon seizure memo and testimony of the three witnesses, who all are police witnesses.
Absence of independent witnesses
14.It is the case of the prosecution that the accused was apprehended and the illicit liquor was recovered from him at around 07:15 PM in at a public place and despite that, no independent public person has been made as a witness. This fact makes the manner of conducting of inquiry, seizure and search etc. on the spot of arrest of accused alongwith the alleged recovery of the illicit liquor highly suspicious.
15. With respect to the same, testimony of PW-3/IO is being discussed who has deposed that after apprehension of the accused, public persons were available at the spot. PW-3/IO requested public persons to join the investigation, but all the public persons refused to join the same and left the spot without disclosing their names and addresses. However, perusal of the record shows that no written notice was served on the public persons by PW-3/IO and in absence of the written notice, explanation given by PW-3/IO cannot be accepted by this Court.
16. In the case of Anoop vs. State, 1992 (2) C.C. Cases 314 (HC), the Hon'ble High Court of Delhi has held under:
"18. 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 shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made Digitally signed by State vs. Kali Charan FIR no. 569/2019 P.S. Raj Park Page No. 5 of EBBANI 7 EBBANI AGGARWAL AGGARWAL Date:
2024.07.03 13:07:19 +0530 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 law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
17.In view of the same, a mere statement of non-availability or unwillingness of public person to join as a witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the presence of public witnesses. Therefore, this Court is of the opinion that no sincere efforts have been made by the IO to join public witnesses and non- joining of independent witness casts a doubt on the fairness of the investigation as well as recovery of the illicit liquor from the possession of accused.
Other inconsistencies in the case of prosecution
18.No handing over memo of the seal has been placed on record and it has only been stated that the seal was handed over to one of the police officials only which further casts doubt as the possibility of tampering with the recovered alleged case property cannot be ruled out in entirety. [Reliance has been placed on judgment passed by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622 ]
19.Accordingly, the fact of recovery of the alleged case property from the possession of accused persons remains clouded which cast a doubt upon the case of the prosecution and prosecution has not been able to prove the same beyond reasonable doubt.
CONCLUSION
20. It is trite in criminal jurisprudence that in order to bring Digitally signed by State vs. Kali Charan FIR no. 569/2019 P.S. Raj Park Page No. 6 of 7 EBBANI EBBANI AGGARWAL AGGARWAL Date:
2024.07.03 13:07:26 +0530 home a charge against the accused, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt on basis of cogent, convincing and reliable evidence and in case of any doubt, the benefit must necessarily be extended to the accused.
21.In view of the facts and circumstances of the present case, marshalling of evidence placed on record and legal position, this Court is of the opinion that prosecution has not been able to discharge the burden cast upon it beyond reasonable doubt and there are sufficient doubts regarding recovery of alleged case property from accused. Therefore, benefit of doubt should be extended to the accused and accused Kali Charan S/o Sh. Anokhe Lal is hereby acquitted for alleged commission of offence under Section 33 of Delhi Excise Act, 2009.
22.Case property be confiscated to the State.
23.This judgement contains 7 pages and all pages have been digitally signed by undersigned.
Digitally signedby EBBANI EBBANI AGGARWAL AGGARWAL Date: 2024.07.03 13:07:32 +0530 Announced in open Court (EBBANI AGGARWAL) on 03.07.2024 Judicial Magistrate First Class-03 North-West, Rohini, Delhi State vs. Kali Charan FIR no. 569/2019 P.S. Raj Park Page No. 7 of 7