Delhi District Court
State vs . Mangal Singh on 27 October, 2022
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE-03, NORTH WEST,
ROHINI COURTS, DELHI
Cr Case No. 4120/2020
FIR No. : 647/2019
P.S. : Raj Park
State Vs. Mangal Singh
U/s. 33/38 Delhi Excise Act
State
v.
Mangal Singh
S/o Sh. Kishore,
R/o U-52, Mangolpuri, Delhi
Date of institution of case : 04.11.2020
Date of reserving the judgment : 03.09.2022
Date of pronouncement of judgment : 27.10.2022
JUDGMENT
1. S. No. of the Case: 4120/2020 2. Date of Commission of Offence: 20.08.2019 3. Date of institution of the case: 04.11.2020 4. Name of the complainant: Ct. Ajay 5. Name of the accused: Mangal Singh 6. Offence complained or proved: U/s 33/38 Delhi Excise Act 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 27.10.2022 Digitally signed MANSI by MANSI MALIK MALIK 16:42:41 +0530 Date: 2022.10.27 State vs. Mangal Singh FIR no. 647/19 Page No. 1/13 BRIEF FACTS AND REASONS FOR DECISION
1. Succintly, the case of prosecution is that the accused Mangal Singh has been sent to face trial with the allegations that on 20.08.2019 at about 11:20 AM in front of House No. U-52 within the jurisdiction of PS Raj Park, accused was found in possession of illicit lliquor for sale in Haryana, without any license or permit. Investigation was carried out. Upon comple- tion of the investigation the instant charge-sheet for the offences punishable under section 33 Delhi Excise Act was filed by the investigating officer against the accused. The accused was then summoned by the Ld. PO at the time.
2. The copies of charge sheet and relevant documents was supplied to the accused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 33 Delhi Excise Act was framed on 27.05.2022 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined two witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
5. PW-1 Ct. Ajay deposed that on 20.08.2019 he was posted at PS Raj Park as a Constable and on that day he was performing patrolling and crime con- trol duty on Govt. motor cycle in beat no. 5 near gas godown, Mangolpuri, State vs. Mangal Singh FIR no. 647/19 Page No. 2/13 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.10.27 16:42:58 +0530 Delhi. PW-1 further deposed that during patrolling at about 11:20 am he reached UT block, Mangolpuri, Delhi and one person was sighted coming from the side of UT block road Mangolpuri having a plastic bag on his right shoulder and after seeing him he got scared and tried to walk inside the gali U Block Mangolpuri Delhi. PW-1 further deposed that on the sus- picion he chased and apprehended him and inquired about the plastic bag but he did not give satisfactory answer. PW-1 further deposed that he checked the aforesaid bag and found illicit liquor and informed to the po- lice station about the said recovery and after some time HC Munde Tuk- eram reached at the spot and he handed over the custody of accused Man- gal Singh along with the case property to the HC Munde Tukeram. PW-1 further deposed that IO recorded his statement which is Ex.PW1/A and IO requested 4-5 passerby to join the investigation but none of them agreed and went away without disclosing their names and addresses. PW-1 further deposed that IO/HC Munde Tukeram checked the aforesaid bag and found, containing 75 quarter bottles of illicit liquor of Asli Santra Masaledar Desi Sharab for sale in Haryana. PW-1 further deposed that IO took out 5 quar- ter bottles for sample from the case property and rapped into the white cloth and sealed the same with the seal of ''TM'' and remaining recovered liquor again put in the aforesaid katta and same was duly sealed with the seal of 'TM'and seal after use was given to him. PW-1 further deposed that IO seized the case property vide seizure memo Ex. PW-1/B and also filled up form no. 29 Excise. PW-1 further deposed that IO also prepared the rukka and handed over the same to him for the registration of the FIR and accordingly, he went to the police station to get the FIR registered and after some time he came back to the spot along with copy of FIR and rukka and same was handed over to the IO. PW-1 further deposed that IO also pre- pared the site plan which is Ex. PW-1/C and arrested and personally searched the accused vide memo Ex. PW-1/D and Ex. PW-1/E and also State vs. Mangal Singh FIR no. 647/19 Page No. 3/13 Digitally signed MANSI by MANSI MALIK MALIK Date: 2022.10.27 16:43:08 +0530 recorded the disclosure statement of the accused which is Ex. PW-1/F. PW- 1 further deposed that case property and accused was brought to the PS and case property was deposited in the Malkhana. PW-1 further deposed that on 28.08.2019 he went sent to deposit the samples to the excise lab ITO and IO also recorded his statement U/s. 161 Cr.P.C. PW-1 correctly identified the accused as well as the case property Ex. P-4(colly). PW-1 was duly cross examined by the Ld. Counsel.
6. PW-2 HC Munde Tukaram, deposed that on 20.08.2019 he was posted at PS Raj Park as a Head Constable and on that day he received DD NO. 23B copy of which is Ex. PW2/A regarding the apprehending of the accused on U-block along with illicit liquor and thereafter, he reached at the spot and met Ct. Ajay who handed over the custody of accused Mangal Singh along with the case property to him. PW-2 further deposed that he recorded his statement which is Ex.PW1/A and also requested 4-5 passer by to join the investigation but none of them agreed and went away without disclosing their names and addresses. PW-2 further deposed that thereafter he checked the aforesaid bag and found containing 75 quarter bottles of il- licit liquor of Asli Santra Masaledar Desi Sharab for sale in Haryana. PW-2 further deposed that he took out 5 quarter bottles for sample from the case property and rapped into the white cloth and sealed the same with the seal of ''TM'' and remaining recovered liquor again put in the aforesaid katta and same was duly sealed with the seal of 'TM' and seal after use was given to Ct. Ajay. PW-2 further deposed that he seized the case property vide seizure memo Ex. PW-1/B and filled up form no. 29 Excise, same is Ex. PW2/X. PW-2 further deposed that he also prepared the rukka which is Ex. PW2/B and handed over the same to Ct. Ajay for the registration of the FIR and accordingly, he went to the police station to get the FIR registered and after some time he came back to the spot along with copy of FIR and State vs. Mangal Singh FIR no. 647/19 Page No. 4/13 Digitally signed MANSI by MANSI MALIK MALIK 2022.10.27 Date:
16:43:19 +0530 rukka and same was handed over to him. PW-2 further deposed that he also prepared the site plan which is Ex. PW1/C and arrested and personally searched the accused vide memo Ex. PW-1/D and Ex. PW-1/E and he also recorded the disclosure statement of the accused which is Ex. PW-1/F. PW- 2 further deposed that case property and accused was brought to the PS. PW-2 further deposed that case property was deposited in the Malkhana and medical examination of the accused was got conducted and he was pro-
duced before concerned court from where he was sent to JC. PW-2 further deposed that he also recorded his statement U/s. 161 Cr.P.C. PW-2 further deposed that on 28.08.2019 Ct. Ajay was sent to deposit the samples to the excise lab ITO and he had collected the excise result which is Ex. PW2/C and after completion of the investigation, he prepared the chargesheet and file the same before the Hon'ble court. PW-1 correctly identified the ac- cused as well as the case property Ex. P-4(colly). PW-1 was duly cross ex- amined by the Ld. Counsel.
7. The accused also admitted the genuineness of FIR no. 647/2019, PS Raj Park i.e Ex.X-1, Certificate u/s 65-B Indian Evidence Act regarding the aforesaid FIR i.e. Ex.X-2, DD No. 23B which is Ex. PW2/A, Excise result i.e. Ex.X-3 and Endorsement on Rukka which is Ex.PW-2/B, u/s 294 Cr.PC, without admitting the contents of the same. In view of the above, witnesses mentioned at serial no. 2, 3, 4 and 5 in the list of prosection witneesses were dropped. Prosecution evidence was thereafter closed on 27.07.2022.
8. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he 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 State vs. Mangal Singh FIR no. 647/19 Page No. 5/13 Digitally signed MANSI by MANSI MALIK MALIK 16:43:28 +0530 Date: 2022.10.27 arguments.
9. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
10. Short point for determination before the court is as under -
"Whether on 20.08.2019 at about 11:20 AM in front of House No. U-52 within the jurisdiction of PS Raj Park, accused was found in possession of illicit lliquor for sale in Haryana, without any license or permit?"
11. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of illicit liquor without permit and submitted that accused be convicted of the offence charged.
12. Per contra, it is argued by the 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 cast 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 the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
13. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the State vs. Mangal Singh FIR no. 647/19 Page No. 6/13 Digitally signed MANSI by MANSI MALIK MALIK Date:
2022.10.27 16:43:36 +0530 prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
14. In present case, the prosecution was duty bound to prove the possession of the illicit liquor with the accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of illicit liquor in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 11:20 AM and it is evident from the testimony of PW-1 that the accused was apprehended alongwith the alleged unauthorised illicit liquor at a public place but still no public independent person was cited as a witness in this case.
15. The aforesaid observations have been deduced from the testimony of PW-1 as well as PW-2. As per version of PW-2, after apprehension of the accused, public persons were available at the spot. PW-2 requested 4-5 passersby to join the investigation but all the passersby refused to join the same. Further, PW-2 also stated that no notice was served upon the passersby by him, who refused to join the investigation. The said explanation given by PW-2 cannot be accepted by the court since, the IO was under obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused has already been apprehended by the police and there was no apprehension that accused might escape. Moreover, the IO has not even placed on record the names of the passerby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not State vs. Mangal Singh FIR no. 647/19 Page No. 7/13 Digitally signed MANSI by MANSI MALIK MALIK 2022.10.27 Date:
16:43:43 +0530 made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments:-
In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as 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 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 an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
"3. 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 from the public were available and they were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well MANSI MALIK Digitally signed by MANSI settled principle of the law that the Investigation MALIK Date: 2022.10.27 16:43:51 +0530 State vs. Mangal Singh FIR no. 647/19 Page No. 8/13 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 he witnesses from the public had refused to 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".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh.
State vs. Mangal Singh FIR no. 647/19 Page No. 9/13 Digitally signed by MANSI MANSI MALIK MALIK Date:
2022.10.27 16:44:00 +0530 PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
16. Considering the aforesaid observations made by the Higher Courts, the omissions/ failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story. Making bald averments that 4-5 passersby were asked to join the investigation but none agreed without giving any written notice to them does not inspire the confidence of the Court.
17. The next inconsistency in the case of the prosecution is the failure to prove the arrival and departure entries of the police officials. It is pertinent to mention that the present case rests entirely on the alleged recovery of case property, i.e. illicit liquor from the possession of the accused at the relevant time by the police officials who were on patrolling duty at the relevant time and place, as per the prosecution story. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for above purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under: MANSI by Digitally signed MANSI MALIK MALIK Date:
2022.10.27 16:44:10 +0530 State vs. Mangal Singh FIR no. 647/19 Page No. 10/13 "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."
18. Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials who were allegedly on patrolling duty at the relevant time and had apprehended the accused with case property becomes a vital piece of evidence. In the case in hand neither the departure entry nor arrival entry was proved by prosecution. Proof of the said entry is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official. Therefore, the failure to prove the aforementioned entries casts a doubt on the story of the prosecution.
19. Further, as per evidence on record, the seal after use was not given to any independent public person but was infact given to PW-1/Ct. Ajay, who was also a material prosecution witness being a witness to the alleged recovery of the illicit liquor from the possession of the accused, such material witness of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out. Moreover, no seal handing over memo is also on record. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, State vs. Mangal Singh FIR no. 647/19 Page No. 11/13 Digitally signed by MANSI MANSI Date:
MALIK MALIK 2022.10.27 16:44:17 +0530 wherein it is held that-
"7. 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."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering 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 tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
20. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of illicit liquor, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecu- tion to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that:- "There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an ac-
State vs. Mangal Singh FIR no. 647/19 Page No. 12/13Digitally signed by MANSI MANSI Date:
MALIK MALIK 2022.10.27 16:44:23 +0530 cused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt be- yond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the ac- cused, he is entitled to benefit of doubt.
21. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against the accused Mangal Singh beyond reasonable doubt. Accordingly, the accused Mangal Singh is acquitted for the offence punishable u/s 33 Delhi Excise Act.
22. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally signedMANSI by MANSI MALIK MALIK Date:
2022.10.27 16:44:30 +0530 Announced in open Court (MANSI MALIK) on 27th Day of October, 2022 Metropolitan Magistrate North-West, Rohini, Delhi State vs. Mangal Singh FIR no. 647/19 Page No. 13/13