Delhi District Court
State vs . Gannu Shani on 15 January, 2020
IN THE COURT OF Ms. PRIGYA GUPTA
METROPOLITAN MAGISTRATE08, CENTRAL,
TIS HAZARI COURTS, DELHI
CIS No. 9854/17
State Vs. Gannu Shani
FIR No. 103/17
PS : Kamla Market
U/s. 33/38 Delhi Excise Act
JUDGMENT
1) The date of commission of offence : 13.05.2017
2) The name of the complainant : SI Dinesh
3) The name & parentage of accused : Gannu Shani
S/o Sh. Jhulan Shani
R/o Jeenat Mahal, Hanuman
Mandir, Asaf Ali Raod, Delhi.
4) Offence complained of : u/s 33/38 Delhi Excise Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) Date of Institution : 10.08.2017
8) The date of such order : 15.01.2020
Brief statement of reasons for decision of the case:
1. The case of prosecution against accused is that on 13.05.2017 at about 12.30 pm, near Hamdard Chowk, Ram Leela Ground, Asaf Ali Road, Kamla Market, Delhi, the accused was found in possession of 66 quarter bottles having label of implact Grain Whiskey, for sale in Haryana only in a plastic bag without having any permit or licence and in contravention of provisions of Delhi Excise Act 2009. FIR was got State vs. Gannu Shani FIR No. 103/17 PS Kamla Market Page 1 of 11 registered. The case property was seized, sealed and deposited in Malkhana, statements of witnesses were recorded and sample bottles were sent for chemical examination and finally, upon completion of necessary investigation, the charge sheet was filed before the Court against the accused for trial.
2 Court took cognizance of the offence upon aforesaid charge sheet. Pursuant to his appearance, accused was supplied the copies of charge sheet/documents in compliance of Sec. 207 Cr.P.C and matter was listed for consideration on charge. Upon hearing the arguments of both the parties and on perusal of record, prima facie case against the accused for the offence punishable u/s 33/38 Delhi Excise Act was found to be made out. Charge was framed accordingly against the accused to which he pleaded not guilty and claimed trial.
3 In support of aforesaid case against accused, prosecution produced and examined six witnesses before the Court.
PW1 Ct. Satyadev has deposed that on 13.05.17, he was on patrolling duty alongwith SI Dinesh. While patrolling, when they reached at Ajmeri Gate Chowk Delhi, one secret informer met SI Dinesh and informed him that one person namely Gannu is selling illicit liquot at Ram Leela Ground and he can be apprehended, if raided. Thereafter, SI Dinesh requested 45 public persons to join the investigation but none agreed and went away without disclosing their names and identity. Without wasting any time, he alongwith SI Dinesh and secret informer proceed towards Ram Leela Ground, Hamdard Chowk, Asaf Ali Road Delhi. When they reached State vs. Gannu Shani FIR No. 103/17 PS Kamla Market Page 2 of 11 at the spot, one person was standing in white Kurta Paijama near the wall of Ram Leela Ground. On seeing the said person, the secret informer pointed out towards him and told that he is the same person. Thereafter, secret informer left the spot. They moved towards the said person and on seeing them, the accused started running alongwith the plastic bag. Thereafter, they apprehended the accused alongwith the plastic bag. He has correctly identified the accused. On interrogation, he revealed his name as Gannu Shani. They checked the plastic bag recovered from the accused. On checking the bag, they found 66 quarter bottles of illicit liquor make of Impact Grain Whiskey (for sale in Haryana only). Thereafter, two quarter bottles were taken out as sample and the remaining 64 quarter bottles were kept in the said bag and tied with the white cloth and sealed with the seal of DK. Same was marked as serial no. 1A. Both the samples bottles were also tied with white clothes and sealed with the seal of DK. Same was marked as serial no. 1B. Thereafter, the case property was seized vide seizure memo Ex. PW1/A. IO prepared the tehrir and handed over the same to him for registration of the FIR. Accordingly, he left the spot and went to PS Kamla Market for registration of the FIR. After getting FIR registered, he returned to the spot and handed over the copy of FIR and rukka to IO. In the meantime, SI Mangej Singh reached at the spot. SI Dinesh handed over the relevant documents alongwith the case property and the accused to SI Mangej Singh. Thereafter, SI Mangej prepared the site plan at the instance of SI Dinesh. Thereafter, the accused was arrested and personally searched vide memos Ex. PW1/B and PW1/C. IO also recorded the disclosure statement of the accused Ex. PW1/D. Thereafter, the case property was deposited in the Maalkhana. The accused was sent to Lock UP after getting his medical examination conducted. He has further State vs. Gannu Shani FIR No. 103/17 PS Kamla Market Page 3 of 11 deposed that on 02.06.17, at the request of MHC(M), he collected the samples and deposited the same at Excise Lab, ITO, vide Road Certificate No. 55/21. The case property was not tampered with till it remained in his possession. He has correctly identified the case property Ex. P1 i.e. katta is found containing 64 quarter bottles of illicit liquor make Impact Grain Whiskey (for sale in Haryana Only). Witness was duly cross examined by learned defence counsel.
PW2 ASI Om Prakash has deposed that On 13.05.17, at about 2.00 PM, the rukka was received through Ct. Satyadev, sent by SI Dinesh. On the basis of which, FIR No. 103/17, U/s. 33 Delhi Excise Act was registered by the computer operator on the computer installed in DO room, which was kept in lawful control and safe custody at the time of generating E record and derived from the computer in ordinary course of taking printout and the same was operating properly at the time of generating electronic record. He made an endorsement on rukka Ex. PW2/B in this respect. The printout of the FIR alongwith rukka were handed over to Ct. Satyadev for handing over the same to SI Mangej. One another printout was kept as a record in PS. He brought the FIR register. Copy/printout of the FIR is Ex. PW2/A. He had issued the certificate u/s. 65B Evidence Act Ex. PW2/C. Witness was duly cross examined by learned defence counsel.
PW3 Ct. Tek Bahadur has deposed that on 13.05.2017, SI Dinesh was departed for patrolling alongwith Ct. Sanjay in the area of PS vide DD no. 31B dated 13.05.2017. He reduced the ravanagi of SI Dinesh and Ct. Sanjay in daily diary register no. B in his handwriting. Duly attested copy of said DD entry on record as Ex. PW3/A. He brought original DD register no. B dated 13.05.2017. Witness was duly cross examined by learned defence counsel.
State vs. Gannu Shani FIR No. 103/17 PS Kamla Market Page 4 of 11 PW4 Retired SI Mangej Singh has deposed that on 13.05.2017, he was present at PS. Ct. Satyadev handed over him original rukka and copy of FIR by stating that the investigation of this case has been marked to him. He alongwith Ct. Sukhdev reached at spot i.e. near Hamdard chowk Ramlila ground, Asaf Ali road, Delhi, where SI Dinesh alongwith the accused met them. He has correctly identified the accused. SI Dinesh handed over him document i.e. seizure memo by stating that the accused was apprehended by him with having illicit liquor which have been deposited in malkhana. He inspected the site at the instance of SI Dinesh and prepared site plan Ex. PW4/A. The accused was arrested and personally searched vide memos Ex. PW1/B and Ex. PW1/C respectively. The accused was interrogated and made disclosure statement Ex. PW1/D. He recorded the statement of witnesses. He collected the copy of FSL form from MHC(M). He has further deposed that on 02.06.2017, the samples were sent to FSL Excise laboratory ITO vide RC no. 55/21 through Ct. Satyadev after receiving from MHC(M). Ct. Satyadev handed over him copy of RC Mark X regarding the receiving of samples at Excise Laboratory. He collected Excise result, Excise report Ex. PW4/B. Witness was duly cross examined by learned defence counsel.
PW5 HC Suraj Bhan has deposed that the case property of the present case has already been destroyed by the order of ACP Excise. One quarter bottle of whiskey have been kept out of all deposit quarter bottles. He brought the said quarter bottle of whiskey, destruction order and photographs of case property. The quarter bottle is Ex. P2. The order dated 12.10.2018 by ACP Excise is Ex. P3 and two photographs of the case property are Ex. P4. Witness was duly cross examined by learned defence counsel.
State vs. Gannu Shani FIR No. 103/17 PS Kamla Market Page 5 of 11 PW6 SI Dinesh has deposed that on 13.05.17, he was on patrolling duty alongwith Ct. Satyadev. While patrolling, when they reached at Ajmeri Gate Chowk Delhi, one secret informer met him and informed that one person namely Gannu is selling illicit liquot at Ram Leela Ground and he can be apprehended, if raided. Thereafter, he requested 45 public persons to join the investigation but none agreed and went away without disclosing their names and identity. Without wasting any time, he alongwith Ct. Satyadev and secret informer proceed towards Ram Leela Ground, Hamdard Chowk, Asaf Ali Road Delhi. They saw that the accused was standing wearing white Kurta Paijama near the wall of Ram Leela Ground. On seeing the said person, the secret informer pointed out towards the accused and told that the he is the same person. Thereafter, secret informer left the spot. They moved towards the accused and on seeing them, the accused started running alongwith the plastic bag. Thereafter, they apprehended the accused along with plastic bag. He has correctly identified the accused. Thereafter, they checked the plastic bag recovered from the accused. On checking the bag, they found 66 quarter bottles of illicit liquor make of Impact Grain Whiskey (for sale in Haryana only) in bag possed by the accused. Thereafter, two quarter bottles were taken out as sample and the remaining 64 quarter bottles were kept in the said bag and tied with the white cloth and sealed with the seal of DK. The samples were given as Mark 1A and 1B. The plastic bag was given as Mark 1. Form M29 was filled up. Seal after use was handed over to Ct. Satyadev. Thereafter, the case property was seized vide seizure memo Ex. PW1/A. He prepared the tehrir Ex. PW6/A and handed over the same to Ct. Satyadev for registration of the FIR. Ct. Satyadev went to PS and got registered the case. After sometime Ct. Satyadev returned at the spot alongwith SI Mangej to whom State vs. Gannu Shani FIR No. 103/17 PS Kamla Market Page 6 of 11 the further investigation was marked. He handed over the case property, documents and your custody to SI Mangej, who inspected the site at his instance and prepared the site plan. He has correctly identified the photographs Ex.P4 of the sealed plastic gunny bag by stating that the same was recovered from your possession and quarter bottles Ex.P2. Witness was duly cross examined by learned defence counsel.
4. In his statement recorded u/s 313 Cr.P.C, accused denied all the incriminating evidence against him and pleaded innocence and false implication. However, he chose not to lead evidence in his defence.
5. Final arguments advanced by learned APP for State and learned defence counsel heard. Judicial record carefully perused.
6. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file 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 on judicial file, 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.
7. Evaluating the facts and evidence, in light of the above said edicts, I proceed further to deliberate on various facets, dealing with one at a time.
State vs. Gannu Shani FIR No. 103/17 PS Kamla Market Page 7 of 11 First of all, it comes out that no independent witness was joined the investigation. The hon'ble supreme court in STATE OF PUNJAB V. BALBIR SINGH AIR 1994 SC 1872, held that :
"It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is wellsettled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
8. Considering the facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of code of criminal procedure. Merely mentioning that public persons were requested to join the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation.
9. As per the testimonies of PW1 Ct. Satyadev and PW6 SI Dinesh, it was sought to be shown by the prosecution that during the investigation, State vs. Gannu Shani FIR No. 103/17 PS Kamla Market Page 8 of 11 PW6 had asked numerous passersby to join the police party, but none of them agreed to join the investigation.
Now as per material on record, it is clear that no serious attempt was made by the concerned police officials to get independent public persons to join the police proceedings of investigation despite availability of such witnesses.
Believing the depositions of PW1 Ct. Satyadev and PW6 SI Dinesh if members of the public had in reality refused to assist the members of the raiding party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings since after the apprehension of the accused, there was no possibility of accused escaping his arrest or crime going undetected, but admittedly no action was taken against such members of the public by PW6. 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 the apprehension & search of the accused 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.
Secondly, another essential circumstance is that the seal, after use, was not handed over to any independent person. As comes out from the testimony of PW6 the seal i.e. "DK" after use on the pullanda containing the case property, allegedly recovered from the accused, was given to none else but to PW1 Ct. Satyaev by PW6 SI Dinesh. Apparent it is, that no efforts were made to hand over the seal to an independent person. The said fact raises a cloud of suspicion on the alleged recovery, more particularly so, when the PW1 and PW6 have admitted that passersby were available at the spot and he had asked the passersby to join the investigation.
State vs. Gannu Shani FIR No. 103/17 PS Kamla Market Page 9 of 11 However, no notice was served upon the public persons who refused to join the investigation and no handing over memo of the seal was prepared by the IO.
I am conscious of precedent laid down by Hon'ble Delhi High Court in "Safiullah v. State", 1993 (1) RCR (Criminal) 622, 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."
Hon'ble Punjab & Haryana High Court also held in "Ramji Singh v. State of Haryana", 2007 (3) RCR (Criminal) 452, that
7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
The case property was lying in the Maalkhana of the same police station where the police officials having the possession of seal were posted. Furthermore, it can be observed that handing over memo was not made.
There were ample opportunities for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
The IO and the raiding party must have offered their personal search to some independent witness. However, no such precaution was taken by PW1 and PW6 the doubt as to the false plantation of the case property cannot be ruled out. In "S. L. Goswami vs. State of M. P", 1972, Cri.L.J 511 (SC), the Hon'ble Supreme Court held:
"... in our view, the onus to proving all the ingredient of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook State vs. Gannu Shani FIR No. 103/17 PS Kamla Market Page 10 of 11 the crook. Even in case where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredient of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which vests upon the prosecution..."
This also raises doubt about the recovery of the said case property from the present accused and strengthens the possibility of planting of the case property upon the accused.
The onus and duty to prove the case against the accused was upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
In view of above said discussion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, I acquit the accused Gannu Shani of the charges framed in the present case. File be consigned to Record Room subject to compliance of section 437A Cr.PC.
Announced in the open court (PRIGYA GUPTA)
on 15.01.2020 Metropolitan Magistrate08
Central District, Tis Hazari Courts/Delhi
State vs. Gannu Shani
FIR No. 103/17
PS Kamla Market Page 11 of 11