Delhi District Court
State vs Kali Charan on 30 July, 2024
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-05,
DISTRICT- NORTH, ROHINI COURTS, DELHI
PRESIDED BY: SH. SARTHAK PANWAR, DJS
State Vs. Kali Charan
FIR No. 280/2014
PS. Bawana
U/s. 33 (a) and (f) of Delhi Excise Act
JUDGMENT
1) Case ID : 5294266/2016
2) The date of commission of offence : : 25.03.2014
3) The name of the complainant : Ct. Visha Ram
4) The name & parentage of accused : Kali Charan S/o Sh.
Budh Pal R/o Village
Sikaura, Police
Station Data Ganj,
District Badayun, UP.
5) Ld. APP for the State : Dr. Deepak Saini
6) Offence involved : U/s 33 (a) and (f)
of Delhi Excise Act
7) The plea of accused : Pleaded not guilty
8) Final order : Acquittal
9) Judgment reserved on : 29.07.2024
10) Judgment announced on : 30.07.2024
State Vs. Kali Charan FIR no. 280/2014 1 of 9
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, the allegations of the prosecution are that on 25.03.2014 at about 3.15 pm at near big roundabout, red flat old, Sector- 4 DSIIDC, Bawana Delhi, within the jurisdiction of PS. Bawana, accused Kali Charan was found in possession and was transporting illicit liquor and the said illicit liquor was kept in a white plastic bag containing 99 bottles of 180 ml each, as per seizure memo Mark X, which was beyond the prescribed quantity as per the notification issued by Delhi Administration and accused was not having any license for possession and transportation of the aforesaid liquor and thereby committed an offence punishable u/s 33 (a) and (f) within the cognizance of this court.
2. Investigation was conducted into the allegations. Upon completion thereof, charge sheet was filed. Accused was summoned. Compliance of section 207 Cr.P.C was done by providing copy of the charge sheet and annexed documents to the accused.
3. Upon finding a prima facie case against the accused, a formal charge for the offence punishable U/s 33 (a) and (f) of Delhi Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to substantiate the allegations, following witnesses have been examined on behalf of the prosecution.
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5. PW-1 Ct. Vishram has deposed that " On 25.03.2014, I was posted at PS Bawana as constable. On that day I was on petrolling duty at beat no.8, sector4, DSIIDC, Bawana, During the petrolling at around 3.15pm when I reached near at the golchakkar the spot I saw that one person was having a plastic bag . On got suspicious I asked about the plastic bag from that person he did not give satisfactory answer. Thereafter, I checked the bag and I found illicit liquor in the bag. Thereafter, I made a call to the PS. After some time, HC Om Prakash came at the spot. I handed over the custody of accused and possession of illicit liquor. IO requested to fourfive public persons to join the investigation but all of them refused due to their personal reasons and left the spot without disclosing their names and addresses. IO checked the plastic bag and found total 99 quarters bottles of rasila santra masaledar desi sharab for sale in Haryana and 40 quarters of bestow whiskey from plastic katta. IO recorded the statement of me which is Ex.PW1/A bears my signature at point A and prepared the rukka and handed over to me for registration of FIR. I went to the PS and returned to the spot alongwith copy of FIR and original rukka. IO took out one quarter bottle from the bag of both quarters i.e english and desi sharab as a sample and sealed the remaining the quarters bottles with seal of OP. IO also sealed the sample quarter bottles with seal of OP and prepared the pullanda. Thereafter IO handed over the seal to me. IO filled form M29. Thereafter, IO seized the pullanda which is already Ex.PW1/B bearing my signature at point A. Thereafter, IO prepared the site plan at the instance of me. IO arrested the accused vide arrest State Vs. Kali Charan FIR no. 280/2014 3 of 9 memo Ex.PW1/C bearing my signature at point A. IO also conducted the personal search of accused vide search memo which is Ex.PW1/D bearing my signature at point A. Thereafter, We left the spot and came back to the PS. Accused is present in the court and witness correctly identified him. I can identify the case property if shown to me. At this stage, MHCM has produced the one DD entry no.56B regarding the destruction of sample of case property . And the same is mark A. At this stage, MHCM has also produced one photograhps of sealed pullanda and the same is shown to the witness. Witness correclty identified the same. The photograhps is Ex.P2. MHCM also produced the destruction order of case property vide order no. F.1840 dated 08.12.2014 which is Ex. P3 and joint report of destruction is Ex.P4. The list of destruction of case property is mark B". Thereafter, PW-1 was duly cross examined by Ld. defence counsel for accused.
6. PW-2 ASI Rajbir Singh has deposed that " On 05.07.2014, I was posted at PS Bawana as HC. On that day, I was received the present cse file for further investigation. I received excise result on 08.10.2015. Thereafter, I prepared the chargesheet and submitted to the court". Thereafter, PW-2 was duly cross examined by Ld. Defence counsel for accused.
7. PW-3 SI Om Parkash has deposed that " On 25.03.2014, I was posted at DSIIDC Chowki, Bawana as HC. I received DD no. 16 PP and thereafter, I went to the spot i.e. Gol chakar, Lal flat Sector 4 Bawana. I spot I met the Ct. Vishram and he handedover to me the State Vs. Kali Charan FIR no. 280/2014 4 of 9 custody of the accused and case property. Thereafter, I checked the case property and found found 99 quarter bottles of Rasila Santra Masaledar Desi Sharab for sale in Haryana only and 40 quarter bottles of besto whiskey for sale in AP only. I requested to four five public persons to join the investigation but all of them refused due to their persons reasons. I took out one quarter Bottle as sample each brand and tied the remaining bottle in the plastic katta with the white cloth and seal the said katta with the seal of OP. I also sealed the sample of the case property with the seal of OP. I also filled the form M29 and prepared the seizure memo which is Ex. PW1/B bearing my signature at point A. Thereafter, I prepared the rukka which is Ex. PW3/A bearing my signature at point A. Thereafter, I prepared the rukka and handed over to Ct. Vishram. He went to the PS and after getting the registration of FIR, he returned to the spot and handedover the copy of the FIR and original rukka to me. Thereafter, I arrested the accused person vide arresting memo Ex. PW1/C bearing my signature at point B. I conducted the personal search of the accused vide memo already Ex. PW1/D bearing my signature at point B. I prepared the site plan which is Ex. PW3/B bearing my signature at point A. Accused is present in the court and correctly identified by the witness. I can identify the case property if shown to me. The case property is already Ex. P1 to Ex. P4. Thereafter, we went to the PS and I submitted the case property to the Malkhkana. Later on I got transferred and file was handedover to MHC R". Thereafter, PW-3 was duly cross examined by Ld. Defence counsel for accused.
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11. Statement of the accused was also recorded under section 294 Cr.P.C. wherein the accused admitted the genuineness of the documents which is FIR no. 280/2014 as Ex. P-1, Certificate u/s 65 B as Ex. P-2, DD no. 16 PP as Ex. P-3 and Excise Lab result is Ex. P-4.
10. After prosecution evidence was concluded, statement of accused was recorded U/s 313 Cr.P.C. read with Section 281 Cr.P.C. wherein he refuted the allegations levelled against him. The accused pleaded innocence and stated that the police officials have planted the case property upon him and he is falsely implicated in the present case.
11. The accused chose not to lead any evidence in his defence and the same was closed.
12. Final arguments were heard on behalf of both the parties.
13. Rival submissions have been considered and record of case has been carefully perused.
14. It is a trite law that in a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the case of prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
15. As per the deposition of prosecution witnesses, they have given State Vs. Kali Charan FIR no. 280/2014 6 of 9 contradictory version regarding the timing of seizure of the case property and preparation of seizure memo i.e. PW-1/B and rukka / tehrir i.e. Ex. PW-3/A. Whereas on the one hand, PW-1 has deposed that " IO checked the plastic bag and found total 99 quarters bottles of rasila santra masaledar desi sharab for sale in Haryana and 40 quarters of bestow whiskey from plastic katta. IO recorded the statement of me which is Ex.PW1/A bears my signature at point A and prepared the rukka and handed over to me for registration of FIR. I went to the PS and returned to the spot alongwith copy of FIR and original rukka. IO took out one quarter bottle from the bag of both quarters i.e english and desi sharab as a sample and sealed the remaining the quarters bottles with seal of OP. IO also sealed the sample quarter bottles with seal of OP and prepared the pullanda. Thereafter IO handed over the seal to me. IO filled form M29. Thereafter, IO seized the pullanda which is already Ex.PW1/B bearing my signature at point A". On the other hand IO SI Om Parkash as PW-3 deposed that " I also sealed the sample of the case property with the seal of OP. I also filled the form M29 and prepared the seizure memo which is Ex. PW1/B bearing my signature at point A. Thereafter, I prepared the rukka which is Ex. PW3/A bearing my signature at point A. Thereafter, I prepared the rukka and handed over to Ct. Vishram. He went to the PS and after getting the registration of FIR, he returned to the spot and handedover the copy of the FIR and original rukka to me". Thus the the above inconsistent testimonies of prosecution witnesses creates a doubt regarding seizure of the illicit liquor in the manner suggested by the prosecution. Reliance in this regard can be placed upon the decision of the Hon'ble High Court of State Vs. Kali Charan FIR no. 280/2014 7 of 9 Delhi cited as Mohd. Hashim, Appellant Vs. State; 2000 CRI.L.J. 1510.
16. As per the case of the prosecution, the case property and sample were sealed by the IO with seal OP, and thereafter, the seal was handed over to Ct. Vishram and not to any independent public persons / witnesses. In such a scenario, tampering with the sample or the case property cannot be ruled out which further creates a doubt regarding preservation of the sample as well as the seized case property. Reliance in this regard can be placed upon the following cases: Safiullah vs. State; (1993) 49 DLT 193 and Rajesh Jagdamba Avasthi Vs. State of Goa; (2005) 9 SCC 773.
17. Admittedly, no public persons/witnesses were made to join at the time of recovery or during investigation. PW1 and PW3 both have conceded during their cross examination that no notice was served to the public persons who refused to join the investigation. Further, no plausible/satisfactory explanation for such omission has been given by the prosecution. Therefore, it is clear that sincere efforts were not made to make independent persons/witnesses join the investigation, despite their availability on the spot at the time of the alleged recovery. This further casts a serious doubt on the case of the prosecution itself. Reliance in this regard can be placed upon decision of Hon'ble High Court of Delhi in a case cited as Anoop Joshi Vs. State; 1992 (2) C.C. Cases 314.
18. In view of the above analysis, this court is of the considered State Vs. Kali Charan FIR no. 280/2014 8 of 9 opinion that the case of prosecution is filled with doubts and benefit thereof must be given to the accused.
19. Thus, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Consequently, accused Kali Charan S/o Sh. Budh Pal is acquitted of the offence punishable under Section 33 (a) and (f) of Delhi Excise Act.
Pronounced in the open (SARTHAK PANWAR)
Court on 30.07.2024 JMFC-05(North), Rohini Courts
New Delhi/30.07.2024
This judgment contains 9 signed pages.
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