Delhi District Court
State vs . Lala Ram on 5 February, 2020
IN THE COURT OF SH. HIMANSHU RAMAN SINGH,
METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI.
Cr. Case No.2476/2017
FIR NO. 808/2015
PS OIA
U/s. 33/38 Delhi Excise Act
State Vs. Lala Ram
JUDGMENT
A. SL. NO. OF THE CASE : 213/2/17
B. DATE OF INSTITUTION : 30.05.2017
C. DATE OF OFFENCE : 10.10.2015
D. NAME OF THE COMPLAINANT : Ct. Satish Kumar
No.3358/SE.
E. NAME OF THE ACCUSED : Lala Ram
S/o Moti Ram
F. OFFENCE COMPLAINED OF : 33/38 Delhi Excise Act
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 05.02.2020
Brief Statement of Reasons for Decision :
1. Accused person is facing trial before the court for the offence punishable under Section 33/38 of the Delhi Excise Act.
2. Briefly stated the facts of the case are that on 10.10.2015 at FIR No.808/2015, PS OIA, State v. Lala Ram Page 1 of 10 about 1.00 pm, in front of S54, Jhuggi Sanjay Colony, OIA Phase II, New Delhi, within the jurisdiction of PS OIA, New Delhi, accused Lala Ram was found in possession of illicit liquor of total 250 quarter bottles of Dabang Santara Masaledar Deshi Sharab (180 ml each) for sale in Haryana only without any permit or license in contravention of Delhi Excise Act.
3. The present FIR was registered for the offence under Section 33/38 of the Delhi Excise Act. After completion of investigation, IO/HC Sunil Tyagi prepared the chargesheet and filed the same before the court.
4. Accused person appeared before the Court and copy of chargesheet alongwith documents annexed therewith were supplied to him as per section 207 CrPC on 30.05.2017. Thereafter accused was charged by Ld. Predecessor Court under Section of the 33/38 Delhi Excise Act on 20.07.2017 to which he pleaded not guilty and claimed trial.
5. Prosecution in order to prove its case, has examined following witnesses:
5.1 PW1 HC Satish Kumar deposed that on 10.10.2015, he alongwith Ct. Dharamveer was on patrolling duty and at about 01.00 pm, they reached at SBlock, OIA, PhaseII and they saw a person was picking something which was covered with a sheet (tirpal). He FIR No.808/2015, PS OIA, State v. Lala Ram Page 2 of 10 further deposed that due to suspicion, they went near him and saw the article which was kept under the sheet and they found 5 cartons and the cartons were set and it was found containing illicit liquor. He further deposed that they informed about the recovery of illicit liquor to PPOIA, PhaseIII and upon the IO/HC Sunil Tyagi came at the spot and they handed over the case property and the accused Lala Ram to the IO. He further deposed that IO had checked the illicit liquor and there were 250 quarter bottles of illicit liquor make masaledar santra for sale in Haryana only and IO got separated one quarter bottle of illicit liquor as a sample and rest liquor were seized and it was duly sealed with the seal of 'HC' vide Ex.PW1/A. He further deposed that Form 29 was filled up at the spot and IO recorded his statement Ex.PW1/B. He further deposed that IO prepared the rukka and gave it to him and sent him to PSOIA for registration of FIR and he got the FIR registered and came back at the spot and handed over copy of FIR and original rukkar to IO. He further deposed that accused was arrested and his personal search memo conducted vide Ex. PW1/C and PW1/D and disclosure statement of the accused was recorded vide Ex. PW1/E. He further deposed that accused got medically examined and sent to the lock up. He further deposed that case property was deposited in Malkhana. He correctly identified the accused and the case property i.e., sample of illicit liquor Ex.P1.
5.2 PW2 HC Jai Kishan deposed that on 19.11.2015, on the instructions of IO/Sunil Tyagi, he collected sample of illicit liquor FIR No.808/2015, PS OIA, State v. Lala Ram Page 3 of 10 which were duly sealed with the seal of SC from MHC (M) PSOIA.
He further deposed that he had deposited the samples at Excise Laboratory at LBlock, Vikas Bhawan vide RC no. 97/21/15 and he had handed over the receiving of the deposit to MHC (M) PSOIA.
5.3 PW3 retired SI Rakesh Kumar proved the FIR Ex.PW3/B. 5.4 PW4 ASI Sunil Tyagi deposed that on 10.10.2015 at about 01.10 pm, he received a DD No.13PP regarding illicit liquor upon which he reached at the spot ie., S54, Okhla PhaseII in front of jhuggies where he found Ct. Satish and Ct. Dharambir apprehending one of the accused with illicit liquor. He further deposed that the name of accused was revealed as Lala Ram and they informed him that the said person was apprehended alongwith illicit in front of jhuggi no.E33 while he was having the same. He further deposed that thereafter, he inquired from 23 persons to join in the investigation, however, none agreed and left the spot without informed their names and addresses. He further deposed that after opening five cartoons recovered from the possession of the accused, it was found that it was containing 50 quarter bottles each of Dabang Santra Masaledar Desi Sharab for sale in Haryana only. He further deposed that thereafter, he put all the said illicit liquor in one plastic katta and after setting aside one quarter bottle and sealed the said katta with the seal of SC vide Ex.PW1/A. He further FIR No.808/2015, PS OIA, State v. Lala Ram Page 4 of 10 deposed that thereafter, he prepared a tehrir Ex.PW3/A and handed over the same to Ct. Satish for registration of FIR. He further deposed that he handed over the seal to Ct. Dharambir and thereafter, Ct. Satish came back to the spot alongwith FIR at about 06:00 pm and handed over same to him. He further deposed that thereafter, he interrogated Ct. Dharambir and prepared the site plan vide Ex.PW4/A and he recorded the disclosure statement of the accused Ex.PW1/E. He further deposed that thereafter, he arrested the accused and conducted his personal search vide Ex.PW1/C and Ex.PW1/D respectively. He further deposed that he filled the form M 29 and thereafter, they came back to PS and deposited the case property in malkhana and produced the accused in the Court. He further deposed that thereafter, the seized sample was sent to FSL through Ct. Jaikishan, No.1911/SE through road no.97/21/15. He correctly identified the accused and the case property.
6. It is pertinent to state in here that accused has admitted certain documents i.e., DD No.13PP dated 10.10.2015, result of analysis of Excise Control Laboratory and RC No.97/21/15 which are Ex.A1 to A3 vide his separate statement recorded u/s 294 CrPC on 21.08.2019.
7. Thereafter, statement of the accused U/s 313 CrPC was separately recorded on 20.12.2019, wherein accused denied all the allegations as leveled by the prosecution against him and states that FIR No.808/2015, PS OIA, State v. Lala Ram Page 5 of 10 his is innocent and nothing was recovered from his possession and police officials came to his house and took him to PS and falsely implicated him in this case. He further chose not to lead any defence evidence and thereafter matter was fixed for arguments.
8. I have heard Ld. APP for the state and Ld. counsel for the accused person. I have carefully perused the case file.
9. It is settled proposition of law that burden lies upon prosecution to prove its case beyond all reasonable doubt. It is the case of the prosecution that accused was found in possession of 250 quarter bottles of illicit liquor of Dabang Santara Masaledar Deshi Sharab (for sale in Haryana only), without having any valid permit or license.
10. It is argued by Ld. APP for the state that accused was found in possession of 5 cartons containing 250 quarter bottles of illicit liquor and said recovery was made by PW1 Ct. Satish Kumar while he was on patrolling duty. t is further argued that accused could not produce any permit or license to carry the said liquor. It is further contended that the prosecution has proved its case beyond reasonable doubt.
11. On the other hand, it is argued by the counsel for the accused that :
a) No independent public person had been joined by IO at the time of recovery/investigation.FIR No.808/2015, PS OIA, State v. Lala Ram Page 6 of 10
b) Seal handing over memo has not been prepared by IO in the present case.
c) Only one quarter bottle from the recovered quarter bottles was sent to Excise Lab for analysis.
d) No photograph or videograph at the time of the alleged recovery has been taken.
e) No departure/arrival entry of HC Satish Kumar regarding his patrolling duty is placed on record.
f) No videography of the recovery proceedings have been done.
12. It is further pertinent to state in here that although it is admitted by the IO and other police witnesses that public person was present at the spot, however the IO has not joined any public person in the investigation. Further perusal of record reveals that no efforts were made by the IO to join any public person in 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 pres ence of independent public witnesses. Parrotlike statements to the effect that passersby were asked but declined to join are given by the IOs in the present case. This does not convince 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 FIR No.808/2015, PS OIA, State v. Lala Ram Page 7 of 10 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 Ad ditional Solicitor General that the presence of public witness under the scheme of Code of Criminal Pro cedure is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recov ered from the personal Search. But it is wellknown that in all matters where the police wants that the story should be believed they always get an inde pendent witness of the locality so that that evidence may lend support to what is alleged by the police of ficers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of this ac cused is no other evidence except the evidence 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 abscon dence is not proved. In such a controversial situa tion the presence of an independent witness from the public, if not 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.
FIR No.808/2015, PS OIA, State v. Lala Ram Page 8 of 1013. Reliance is also placed upon the judgment passed by Hon'ble High Court of Delhi in Anoop Joshi vs. State 1999 (2) CC Cases 314 (DHC) and by Hon'ble High Court of Punjab and Haryana in Roop Chand vs. State of Haryana 1999 (1) Crl. 69.
14. It is further pertinent to state in here that although 250 quarter bottles were recovered from the possession of accused, as per the case of prosecution only one quarter bottle was separated for sample purpose and the sample was not taken from the remaining quarter bottles. As such there is nothing on record placed by the prosecution to show that quarter bottles alleged to be recovered from the possession of accused were having illicit liquor as sample was not taken out from all the quarter bottles.
15. 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 bears FIR number, although the FIR was lodged subsequent to preparation of seizure memo;
c) the samples were not taken from all the bottles alleged to be seized, same raises serious doubts over the testimonies of the prosecution witnesses;
d) there is grave suspicion with regard to identity of the accused and manner of arrest;
e) mandatory DD entries of arrival and departure as mandatory under the Punjab Police Rules have not been placed on record, which cast doubt on the presence of witnesses at the spot itself;FIR No.808/2015, PS OIA, State v. Lala Ram Page 9 of 10
f) seal handing over memo was not prepared by IO and the misuse of seal cannot be ruled out, it has to be concluded that the prosecution has failed to establish beyond reasonable doubt that the alleged recovery was infact made from accused.
16. In view of the law and facts discussed above, prosecution has failed to prove its case beyond reasonable doubt. In view of the same accused Lala Ram stands acquitted for the offence under Section 33/38 of the Delhi Excise Act, 2009.
ANNOUNCED IN OPEN COURT (HIMANSHU RAMAN SINGH) Today i.e. 05.02.2020 METROPOLITAN MAGISTRATE02 SOUTH EAST, SAKET COURTS, NEW DELHI FIR No.808/2015, PS OIA, State v. Lala Ram Page 10 of 10