Delhi District Court
State vs Manoj on 31 October, 2023
1
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE01, DWARKA COURTS, DELHI
State v : Manoj
FIR No : 653/2020
U/S : 33 Delhi Excise Act
P.S. : PALAM VILLAGE
1. Criminal Case No. : 3501/2021
2. Date of commission of offence : 30.10.2020
3. Date of institution of the case : 16.03.2021
4. Name of the complainant : State
5. Name of accused & parentage : Manoj S/O Sh.Amar Nath
6. Offence complained or proved : Section 33 Delhi Excise Act
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 19.10.2023
9. Final order : Acquitted
10. Date of final order : 31.10.2023
JUDGMENT
1. The accused Manoj is facing trial for offence U/S 33 Delhi Excise Act. The genesis of the prosecution story is that on 30.10.2020 at 07:15 PM in a street near RZ 199, Raj Nagar II, Palam, New Delhi, within jurisdiction of PS Palam village, the accused Manoj was found in possession of 48 half bottles of illicit liqour having label Country Orange Spiced Liqour for sale in Haryana, measuring 375 ML each without any permit or license. The criminal law was set into motion by registration of FIR against the accused and investigation into the FIR No.653 /2020 St. Vs. Manoj 2 case began. After completion of the investigation, the present chargesheet was filed for conducting trial of the accused persons for the alleged offences.
2. After taking cognizance of the offences, the copy of chargesheet was supplied to accused Manoj in compliance of section 207 Cr.P.C. The arguments on charge were heard and charge for offence U/S33 Delhi Excise Act was framed against accused Manoj on 17.04.2023. The accused Manoj pleaded not guilty and claimed trial. Thereafter, prosecution evidence was led.
3. In order to prove allegations against accused, prosecution has examined two prosecution witnesses.
4. The proceedings U/S 294 Cr.P.C. was conducted wherein accused admitted the factum of registration of FIR no. 653/20 EX. P1, DD entry no. 91 A dated 30.10.2020 Ex. P2, Excise Form Ex. P3 Road Certificate No. 3/21/21 Ex. P4 and Excise report dated 19.02.2021 Ex. P5 pursuant to the admission made by accused of these documents, witnesses at Sr. No. 2, 4, 5 and 6 were dropped from the list of witness.
5. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence U/S33 of Delhi Excise Act has been proved beyond doubt.
6. Per contra, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused and that the accused has been falsely implicated by the police officials and the recovery of illicit liquor has been FIR No.653 /2020 St. Vs. Manoj 3 planted upon him. Arguing further, Ld. counsel has interalia submitted that no public witnesses were joined by the police officials during investigation. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused be given the benefit of doubt and is therefore, entitled to be acquitted.
7. Prior to delving into the contentions raised by the prosecution and defence, let us discuss the testimonies of the material prosecution witnesses in brief.
8. PW1 Ct. Rakesh is the complainant and he deposed that on 30.10.2020, while he was on beat patrolling duty, at about 7:15 PM when he reached near H.No. RZ199, Raj Nagar II, Palam Colony, he found one person carrying one white plastic bag passing through the said lane and he stopped him on suspicion and asked about the contents of katta but he did not gave any satisfactory reply and then, he checked the katta and it was found containing illicit liqour. That person upon inquiry revealed his name as Manoj. Thereafter, he shared the said information with concerned Duty Officer pursuant to which IO HC Ravinder Singh came to the spot and then he handed over, the custody of accused with case property to IO. Thereafter, IO checked the white katta and it was found containing 48 half bottle of Asli Santra Desi Masaledar Sharab for sale in Haryana only, 375 ML each. Then, one half bottle was taken out as sample bottle and it's mouth was tied with white cloth which was further sealed with seal of RS and it was marked as S1 and remaining 47 half bottles were kept in the same katta and its mouth was tied with white cloth and it was also sealed with seal of RS and it was given serial no. A1. Then, IO filled Form M29 i.e. FIR No.653 /2020 St. Vs. Manoj 4 Ex. P3 at the spot and seized the case property vide seizure memo Ex. PW1/A and the seal was handed over to this witness. Then, IO recorded statement of this witness Ex. PW1/B, prepared rukka Ex. PW2/A on the basis of the same and handed over it to the witness for registration of FIR. Thereafter, this witness went to the PS and after getting the FIR registered, returned to the spot and handed over the copy of the FIR & Rukka to IO. Thereafter, the IO prepared the site plan Ex. PW1/C. Thereafter, IO arrested the accused vide arrest memo Ex. PW1/D and conducted his personal search vide personal search memo Ex. PW 1/E and IO also recorded his disclosure statement Ex. PW1/F. This witness also stated that IO also recorded his supplementary statement U/S 161 Cr.P.C. This witness also correctly identified the accused. The case property was not produced in the court as it was destroyed vide order of Excise Commissioner Ex. PX1 and entry regarding destruction of case property in question is mentioned at serial no. 17 in that order.
9. PW2 HC Ravinder Singh is IO in this case. He deposed that on receipt of DD No. 91 A, he went to the spot i.e. Gali near H. No. RZ199, Raj Nagar II, Palam Colony, where Ct. Rakesh handed over the custody of the accused along with case property to him. Thereafter, he deposed about the manner in which investigation was conducted by him and the same has already came in the testimony of PW1, thus the same is not being reproduced to avoid repetition. This witness also correctly identified the accused.
STATEMENT OF ACCUSED U/S313 Cr.P.C.:
10. Statement of the accused under Section 281/313 Cr.P.C. was recorded separately on 19.10.2023 in which all the incriminating circumstances FIR No.653 /2020 St. Vs. Manoj 5 appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case. Accused further opted to not lead evidence in his defence.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
11. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. In the present case, the Accused Manoj has been indicted for the offence U/S 33 of Delhi Excise Act.
12. In order to prove the offence under Section 33 of the Delhi Excise Act, the prosecution must establish the fulfilment of all the essential ingredients of the offence. The contents of Section 33 of the Delhi Excise Act are reproduced as follows:
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc.
1. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act--
a. manufactures, imports, exports, transports or removes any intoxicant;
b. constructs or works any manufactory or warehouse; c. bottles any liquor for purposes of sale;
d. uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari; e. possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor; f. sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not FIR No.653 /2020 St. Vs. Manoj 6 be less than fifty thousand rupees but which may extend to one lakh rupees."
13. It is also significant to note that Section 52 of Delhi Excise Act lays down a rebuttable presumption which goes as follows:
"Section 52. Presumption as to commission of offence in certain cases:
1. In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
2. ........."
14. It is trite law that the burden always lies upon the prosecution to prove it's case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a prerequisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, as discussed hereinafter, careful scrutiny of the evidence placed on record brings to light the fact that the case of FIR No.653 /2020 St. Vs. Manoj 7 the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible, owing to which, no presumption, as provided for under Section 52 of the Act, can be raised against the accused in the present case.
i). Doubtful Seizure Memo and Form M29.
15. A careful reading of the testimony of PW1 & 2 reflects that even before rukka was prepared and was sent to the P.S. through PW1 Ct. Rakesh, Form M29 Ex. P3 was filled and thereafter, upon registration of FIR, PW1 Ct. Rakesh returned to the spot and then IO PW2 HC Ravinder Singh prepared the spot map and conducted further investigation. The narration of such a chronology of events leads to the irresistible conclusion that Form M29 was prepared at the spot, prior to the rukka being sent to the police station for registration of the FIR and that the FIR was, therefore, admittedly registered after the preparation of this document. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by PW1 Ct. Rakesh. Thus, ordinarily, the FIR number and date should not find mention in Form M29, which document came into existence before registration of the FIR. However, quite surprisingly, perusal of Form M29 reflects complete particulars of FIR and do not reflect anywhere the particulars of relevant DD numbers which fact has remained unexplained on behalf of the prosecution. No explanation from the prosecution is forthcoming as to how the FIR number surfaced on the document which was prepared prior to the registration of the FIR. This fact casts a fatal doubt upon the case of prosecution.
FIR No.653 /202016. At this stage, reference may be made to the decision of the Hon'ble High Court of Delhi in Lalit v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as follows:
"...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, PW 11/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. 36 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..."
17. The aforesaid ruling of the Hon'ble High Court of Delhi squarely applies to the facts in the present case as well, which leads to only one of the either inference, that is, either the FIR was registered prior to the alleged recovery of the illicit liquor, or that the seizure memo and Form M29 were prepared later in point of time. In either of the scenarios, a dent is created in the version of the prosecution, the benefit of which must accrue to the accused.
FIR No.653 /2020ii). The nonjoining of any independent / public witness.
18. It is evident from the record that no public witness to the recovery of the liquor has been either cited in the list of prosecution witnesses or has been examined by the prosecution. Apparently, PW2 IO HC Ravinder Singh had even asked public persons to join the investigation, however, they refused to join the investigation. Admittedly, no notice was served to such public persons upon their refusal to join investigation in the case. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi v State 1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
"...18. It is repeatedly laid down by this Court 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 evidence 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 law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC..."
19. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"...The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the FIR No.653 /2020 St. Vs. Manoj 10 prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner..."
20. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also as stated by all PWs, admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the IO must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an afterthought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful.
21. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or FIR No.653 /2020 St. Vs. Manoj 11 more independent and respectable inhabitants of the locality are required to be made witnesses to such search, and the search is to be made in their presence. Under Section 100(8) Cr.P.C, refusal to be a witness can render such non willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the present case. Therefore, noncompliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity, makes the prosecution version highly doubtful.
22. This Court is conscious of the legal position that nonjoining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the police witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the muchneeded corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above, and hereinafter.
iii). Possibility of misuse of seal of the investigating officer.
23. As per the prosecution story, after preparing seizure of the case property and the samples of illicit liquor with seal of 'RS', the aforesaid seal was handed over to PW1 Ct. Rakesh. This fact cannot be ignored that Ct. Rakesh was a recovery witness and had apprehended the accused and was subsequently, a part of the investigation in the present case. Thus, the seal was not handed over to FIR No.653 /2020 St. Vs. Manoj 12 any independent witness. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness. Further, no handing over memo is on record to show the genuineness of fact of actual handing over of seal by PW2 HC Ravinder Singh to Ct. Rakesh. Also, there is no taking over memo on record to show as to when the seal was taken back from HC Ravinder Singh or if it remained with him forever. In such a factual backdrop, since the seal was given to Ct. Rakesh, the seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property.
24. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"...The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out. In the present case, the seal of Investigating OfficerHoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out..."
25. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
FIR No.653 /2020St. Vs. Manoj 13 "9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."
26. It is nowhere the case of the prosecution that the seal after use was handed over to any of the independent witness. In view of discussion made above, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out. Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
27. Since in the present case, all the witnesses are police personnel and as discussed above, the necessary safeguards in the investigation have not been followed by the IO, I am of the view that the possibility of false implication of accused under the provisions of Excise Act cannot be ruled out at the instance of the police. There is no explanation from prosecution regarding the above noted serious lacunaes in the investigation conducted by the police which constrains this court to draw an inference qua possibility of planted recovery upon the accused. The inference drawn above further gains strength from the fact that the police did not bother at all to discover the source of illicit liquor or to further enquire about the potential customers of the same.
FIR No.653 /202028. There is no gain saying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The above discussed lacunae's in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for offence U/S33 of Delhi Excise Act beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal. Accordingly, this Court holds the accused not guilty of commission of the said offence. Accused Manoj is thus, acquitted of the commission of offence U/S 33 of Delhi Excise Act.
29. The bail bonds, if any furnished by accused at the time of commencement of trail stands cancelled. Surety, if any stands discharged. Documents, if any shall be returned to it's rightful owner as per rules. Endorsement, if any, stands cancelled. Case property if any, shall be disposed of after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.
Announced in the open court on (Aishwarya Sharma)
this day i.e. 31st October, 2023 MM-01 South West District, Dwarka,
New Delhi
It is certified that this judgment contains 14 pages and each page bears my signatures.
(Aishwarya Sharma) MM-01 South West District, New Delhi FIR No.653 /2020 St. Vs. Manoj