Delhi District Court
State vs . Om Prakash on 31 January, 2023
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 407/2019
U/s : 33/38 Delhi Excise Act
P.S. : Ranhola
State Vs. Om Prakash
JUDGMENT:
a) CNR No. : DLWT02-017719-2019
b) Sl. No. of the Case : 8649/2019
c) Name & address of the : Ct. Manjeet Singh, No. 2201/OD,
complainant. PS Ranhola, Delhi.
d) Name & address of : Om Prakash, S/o Sh. Sugna Ram,
accused R/o H.No. 45-A, Gali No. 2,
Nangli Vihar Extension, Baprola,
Delhi.
e) Date of Commission of : 17.07.2019
offence
f) Offence complained off : u/S 33/38 Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Acquitted
i) Date of such order : 31.01.2023
j) State Represented by : Sh. Abhishek Pandey, Ld. APP
k) Accused Represented by : Sh. Roj Malik, Ld. Cousnel
Date of Institution : 01.11.2019
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Final arguments heard on : 31.01.2023
Judgment Pronounced on : 31.01.2023
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 17.07.2019 at about 05:25 PM in front of H.No. 45-A, Gali No. 2, Nangli Vihar Extension, Baprola within the jurisdiction of PS Ranhola, Delhi, accused was found in possession of one katta containing 57 quarter bottles of illicit liquor of brand Impact Grain Whiskey for sale in Haryana only (180 ML each) and 50 quarter bottles of brand Asli Santra Masaledar Deshi Sharab for sale in Haryana only, without any license or permit and committed an offence punishable U/s 33 Delhi Excise Act.
2. After investigation, challan for offence U/s 33 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33 Delhi Excise Act was framed against accused on 13.12.2019, to which he pleaded not guilty and claimed trial.
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4. In support of its case, prosecution examined two witnesses i.e. HC Manjeet Nandal and ASI Tarachand.
5. PW-1 HC Manjeet Nandal, No. 2201/OD, PS Ranhola, Delhi, is complainant/witness in the present case, who deposed that on 17.07.2019, he was posted at his beat no. 8. He at the time of patrolling in the evening at about 05:25 PM reached at Gali No. 2, Nangli Vihar Extension. There he saw accused Om Prakash carrying a katta on his head. Thereafter, he stopped him and inquired about what he was carrying. He was found to be suspicious and hesitant. When he inspected the katta, he found it containing illicit liquor. Thereafter, he called PS Ranhola telephonically from his mobile. ASI Tara Chand reached at the spot of incident. Thereafter, he produced accused Om Prakash alongwith case property to ASI Tara Chand. Accused was present in the cour and correctly identified by the witness. Thereafter, ASI Tara Chand requested 1-2 passersby to join the investigation but none agreed and left the spot citing their personal reasons without telling their names and address. Thereafter, ASI Tara Chand opened the katta and found 57 quarter FIR No:407/2019 State v. Om Prakash Page No.3/17 bottles of Impact Grain Whiskey for sale in Haryana only (180 ML Each) and 50 quarter bottes of Asli Santra Masaledar Deshi Sharab for sale in Haryana only. Thereafter one quarter bottle from both was taken out and marked with Sr. No. 1A and 2A and covered with white cloth and marked with the seal of TC. Thereafter, the katta with remaining bottles was also sealed and marked with Sr. No. 1. Thereafter, the seizure memo was prepared in his presence Ex.PW1/A. Thereafter, form M-29 was prepared by the IO. Seal TC was handed over to him after seizure by ASI Tara Chand vide seal handing over memo Ex.PW1/B. Thereafter, rukka Ex.PW1/C was prepared and tehrir Ex.PW1/D was recorded and was handed over to him for registration of FIR. He took the same to the PS and got FIR registered and came back at the spot alongwith original rukka and copy of FIR Ex.A1 and handed over the same to IO. Thereafter, the accused was informed of ground of arrest and he was formally arrested vide memo Ex.PW1/E and also the personal search of accused was carried out vide memo Ex.PW1/F. Thereafter, site plan was prepared by IO, which was Ex.PW1/G. Accused was taken for medical examination and later on alongwith case property FIR No:407/2019 State v. Om Prakash Page No.4/17 proceeded to PS Ranhola. Thereafter, his statement u/S 161 Cr.P.C. was recorded by IO.
At that stage, 2 samples of illicit liquor (case property) & order of confiscation was produced by MHC(M) in sealed condition which was correctly identified by the witness. Order of confiscation was Ex.P1(Colly).
In his cross-examination, witness/complainant deposed that they finally left the spot at around 07:00 PM. Accused was taken to DDU Hospital alongwith IO and one more police official for medical examination through government vehicle i.e. QRT van. They reached PS at around 08:00 PM. IO did not give any notice to the public persons who refused to join the investigation. M-29 form was filled in one original and one carbon copy. He did not remember whether it was a two sided from or one sided. He took the rukka for registration of FIR to PS at or around 06:45 PM. It took about 15 minutes to return alongwith FIR at the spot of incident. All the written work was done at Mark A mentioned in site plan. All the documents were prepared while sitting at Mark A in or about 1 hour at the spot. The seizure memo Ex.PW1/A was prepared in his FIR No:407/2019 State v. Om Prakash Page No.5/17 presence from top to bottom in one go. Seal was returned back to the IO after reaching PS after completing all the investigation on the same day. It was wrong to suggest nothing was recovered from accused. It was wrong to suggest that all the writing work was done by IO at PS or that case property was planted upon the accused.
6. PW-2 ASI Tarachand, No. 1460 presently posted at VIP Security, Delhi, is IO/witness in the present case, who deposed that on 17.07.2019, he was posted at PS Ranhola as an ASI. On receiving the information vide DD No. 46-B dated 17.07.2019, he reached at the spot i.e. H.No. 45-A, Gali No. 2, Nangli Vihar Extension, Baprola, Delhi. At the spot he met HC Manjeet Mandal, who produced before him the accused person alongwith the case property in a plastic katta. Thereafter, he recorded the statement of Ct. Manjeet Ex.PW1/C and attested the same at the point B. Thereafter, he tried to collect 3-4 public persons to join the investigation but they denied citing their own reasons. Thereafter, he proceeded to search the case property and found that the plastic katta containing 50 quarter bottles of Asli Santra Masaledar Deshi FIR No:407/2019 State v. Om Prakash Page No.6/17 Sharab for sale in Haryana only (180 ML each) and 57 quarter bottles of Impact Grain Whiskey for sale in Haryana only, thereafter one sample bottle of each brand of liquor was taken out and given Sr. No. 1A & 2A and mouth of which were covered with a piece of white cloth and sealed with seal of TC. Thereafter the mouth of the katta containing the quarter bottle of each brand minus the sample bottle was closed with a piece of white cloth and sealed with the seal of TC and given Sr. No. 1. The seal was handed over to Ct. Manjeet vide memo Ex.PW1/B. Thereafter, the case property was seized vide seizure memo Ex.PW1/A. Thereafter, he filled M-29 form Ex.PW2/A. Thereafter, he prepared the tehrir already Ex.PW1/D and sent Ct. Manjeet to the PS for registration of FIR. After registration Ct. came back to the spot and handed over him the copy of FIR and asal tehrir. Thereafter, he prepared the site plan on instance of Ct. Manjeet Ex.PW1/G. Thereafter, he interrogated the accused and recorded the disclosure statement Ex.PW2/B. Thereafter, arrested and personally searched the accused vide Ex.PW1/E & Ex.PW1/F. He could identify the accused person, if shown to him. He could identify the case property, if shown to him and the same was already Ex.P1 FIR No:407/2019 State v. Om Prakash Page No.7/17 (Colly).
In his cross-examination, witness/IO deposed that they finally left the spot at about 07:45 PM alongwith Ct. Manjeet, case property on a battery rickshaw. Ct. Manjeet went to PS with rukka at about 06:45 PM. 2 copies of form M-29 were filled. Seizure memo was in his own handwriting and he prepared the same in a one go. He enquired from the accused as to the source of the liquor to which he replied that it was brought from Haryana. Seal was returned to him on the same day. It was wrong to suggest that nothing was recovered from the possession of the accused person. It was wrong to suggest that the illicit liquor was planted on the accused. It was wrong to suggest that he did all his investigation while sitting in the PS. It was wrong to suggest that he was deposing falsely.
7. The accused admitted FIR No. 407/19, DD No. 105-A & DD No. 46-B dated 17.07.2019, Statement of Rajesh Joshi, Certificate u/S 65-B Indian Evidence Act and statement of Ct. Vinod vide Ex.A1-A6 u/S 294 Cr.P.C respectively.
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8. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
9. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
10. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused Om Prakash is entitled to be FIR No:407/2019 State v. Om Prakash Page No.9/17 acquitted for the charge by reasons of reasonable doubts in the prosecution story.
11. It is pertinent to observe that Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under: "22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
12. In the present case, the above said provision appears to have not been complied with by the prosecution. As per the prosecution version, at the time of the apprehension of the accused with illicit liquor from his possession, HC. Manjeet (PW1) had left the PS for FIR No:407/2019 State v. Om Prakash Page No.10/17 patrolling duty at beat no. 8 but the said DD entry vide which he had left the PS for patrolling duty has not been brought on record. In the opinion of this Court, the prosecution was under an obligation to bring on record and prove the above said DD entry vide which the above said police official had left the PS, so as to prove the possibility of availability of said police official HC Manjeet at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have brought on record and prove the DD entry by which the above said police official had left the PS, so as to inspire the confidence regarding his availability and presence at the place of apprehension of the accused, since the said police official was under bounden duty to enter his departure and arrival from/at the police station by making a D.D. entry in that respect as per the aforesaid mentioned Punjab Police Rules.
13. At this juncture, it is relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency FIR No:407/2019 State v. Om Prakash Page No.11/17 deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record and prove the relevant DD entries as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the police officials.
14. To infer the innocence of the accused, it is noticed that as deposed in testimony of PW-1, IO had asked 1-2 public persons to join the investigation, but they refused citing their personal reasons without disclosing their names and addresses. PW-2 deposed that he asked 3-4 public persons to join the investigation but they denied citing their own reasons. It is clear that no serious attempt was made by the concerned IO/PW2 to get independent public persons to join the police proceedings of seizure and apprehension of the accused with case property despite availability of such FIR No:407/2019 State v. Om Prakash Page No.12/17 witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings for joining the investigation since after the apprehension of the accused person with case property, there was no possibility of accused person escaping their arrest or crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of apprehension by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under: " It is repeatedly laid down by this Court in FIR No:407/2019 State v. Om Prakash Page No.13/17 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". In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: " I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the FIR No:407/2019 State v. Om Prakash Page No.14/17 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. 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 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 FIR No:407/2019 State v. Om Prakash Page No.15/17 the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
15. Keeping in view the background of the case, defence of the accused, non-following the established procedure of law by the investigating agency, as discussed above, this Court is of the opinion that the accused is entitled to the benefit of doubt. In this regard, reliance can be placed on the case of State of Haryana v. Bhagirath, AIR 1999 SC 2005, the Hon'ble Supreme Court illustrated the doctrine of benefit of doubt in the words "The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not FIR No:407/2019 State v. Om Prakash Page No.16/17 have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
16. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, it is held that the prosecution has failed to prove the alleged offence under Section 33 Delhi Excise Act against the accused Om Prakash beyond reasonable doubt. The accused Om Prakash is hereby acquitted for the charged offence.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 31st day of January, 2023 31.01.2023
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