Delhi District Court
State vs Soniya on 15 October, 2024
IN THE COURT OF JMFC-05, TIS HAZARI COURTS,
DELHI, PRESIDED BY- CHARU ASIWAL
DLWT020028062019
Cr. Case no. 1664/19
STATE VS.SONIYA
FIR No. 203/18
PS Anand Parbat
JUDGMENT
(a) Sr. N o. of the case 1664/19
(b) Date of offence 20.07.2018
(c) Complainant/ Ct. Praveen Kumar, No. 1601/C,
informant PIS No. 28104465, PS Anand
Parbat, Delhi.
(d) Accused person. Soniya W/o Sh. Manjeet Kumar R/o
H.No. RC 220, Rajasthan Colony,
Baba Farid Puri, West Patel Nagar,
Anand Parbat, Delhi
(e) Offences U/s 33 Delhi Excise Act
(f) Plea of accused Pleaded not guilty.
(g) Final Order Acquittal
(h) Date of institution 20.02.2019
(i) Date of judgment 15.10.2024
FIR No. 0203/18 State Vs. Soniya 1 of 18
Digitally signed
by CHARU
CHARU ASIWAL
Date:
ASIWAL 2024.10.15
04:32:51
+0530
BRIEF FACTS AND REASONS FOR DECISION:
1. Succinctly put, the facts of the case as per Prosecution are that on 20.07.2018 at about 08:50 am at H.No. RC-220, Rajasthan Colony, Delhi within the jurisdiction of PS Anand Parbat, accused found in possession of 3 cartons containing 48 quarter bottles each of illicit liquor as per seizure memo Mark-A without license, permit or pass and in contravention of the notification issued by Delhi Government and the said liquor recovered from the accused was not of Delhi Excise and accused possessed the same having knowledge that the same has been transported/ unlawfully imported into Delhi without prescribed duty being paid on it.
1.2 Thereafter, FIR was registered under Section 33 Delhi Excise Act. After completion of investigation chargesheet was filed in the Court. The cognizance of the offence was taken and summons were issued to the accused. The copy of the charge-sheet and the documents in compliance of Section 207 CrPC was supplied to the accused.
2. The charge was framed against the accused for offence punishable under Section 33 Delhi Excise Act on 03.09.2019 to which she pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the Prosecution evidence. Accused admitted FIR, Certificate u/s 65B Indian Evidence Act, DD No. 19A dated 20.07.2018 and chemical examination report u/s 294 Cr.P.C.
FIR No. 0203/18 State Vs. Soniya 2 of 18
Digitally
signed by
CHARU
CHARU ASIWAL
ASIWAL Date:
2024.10.15
04:32:59
+0530
3. In Prosecution evidence, the Prosecution has examined 04 witnesses. All are police officials. PW-1 HC Shailesh Kumar who deposed that on 20.07.2018, he was posted at PS Anand Parbat as MHC(M). On that day, SI Om Prakash produced the case property which was deposited in the malkhana vide entry in register No.19 at Sr. No. 2327 (Ex. PW-1/A) (OSR). He further deposed that on 23.08.2018, sample bottles were sent to excise lab, ITO for examination through Ct. Praveen vide RC No. 205/21/18 (Ex. PW- 1/B) (OSR). The witness was not cross-examined despite opportunity.
4. PW-2/HC Praveen Kumar who deposed that on 20.07.2018, he was posted at PS Anand Parbat as Constable. On that day, he along with Ct. Sunil were on patrolling duty. He deposed that one secret informer told him that a lady is standing outside her house with cartons of illicit liqour, who can be apprehended, if raided. Thereafter, he asked the public persons to join the investigaion but none of them agreed and left the spot. He further deposed that he along with Ct. Sunil went to H.No. RC 220, Rajasthan Colony, secret informer pointed towards the accused lady, who upon inquiry did not give satisfactory reply, upon checking it was found containing 48 quarter bottles of Crazy Romeo (for sale in Arunchal Pradesh Only).
4.1 He further deposed that intimation about the recovery of illicit liqour was sent to duty officer, thereafter SI Om Prakash along with FIR No. 0203/18 State Vs. Soniya 3 of 18 Digitally signed by CHARU CHARU ASIWAL Date: ASIWAL 2024.10.15 04:33:05 +0530 W/CT Renu reached the spot, accused along with recovered illicit liqour was handed over to the IO. After interrogation, the name of that person was revealed as Soniya. Thereafter, Ct. Sunil was sent to PS to bring the seal. After arrival Ct. Sunil along with seal, IO sealed the samples and carton boxes with the seal of APRVT-II. Thereafter, seizure memo (Ex. PW-2/A), Form M-29 were prepared. Statement of Ct. Praveen (Ex. PW-2/B) was recorded. Tehrir was prepared and handed over to Ct. Praveen for registration of FIR. Ct. Praveen went to the police station, got the FIR registered, returned to the spot along with copy of FIR, handed over the same to the IO. 4.2 Thereafter, IO prepared the site plan at the instance of Ct. Praveen. Accused was interrogated, arrested vide memo Ex. PW 2/C and personally searched vide memo Ex. PW-2/D. Disclosure statement of the accused was recorded vide memo Ex. PW-2/E. The witness further deposed that on 20.08.2018, he collected the samples from MHC(M) and deposited the same at ITO vide RC No. 205/21/18. He further deposed that case property was not tampered with till the time it was in his possession. Witness correctly identified the accused during his deposition.
4.3 Thereafter, the recovered illicit liquor was taken to PS. The case property was deposited in malkhana of PS and the accused was lodged in lock-up of PS. IO recorded his statement in this regard.
4.4 MHC(M) Anand Parbat appeared and produced 1 quarter bottle of Crazy Romeo (for sale in Arunchal Pradesh Only) bearing FIR No. 0203/18 State Vs. Soniya 4 of 18 Digitally signed by CHARU CHARU ASIWAL ASIWAL Date:
2024.10.15 04:33:12 +0530 the particulars of the present case sealed with the seal of 'APRVT-II'. The quarter liquor bottles is Ex.P-1 (colly). The witness was duly cross examined by the ld. counsel for the accused in which he deposed that he had not made any departure entry before leaving the PS for patrolling duty. He further deposed that no videography was done of the recovery proceedings and despite request, neighbours refused to join the investigation. He denied the suggestion that case property was planted upon the accused and no recovery was effected from his possession.
5. PW-3/ HC Sunil corroborated the version narrated by Ct. Praveen (PW-2). Hence, for the sake of brevity, same is not being reproduced here. Witness correctly identified the accused during his deposition. Witness also correctly identified the case property. The witness was duly cross-examined by the Ld. counsel for the accused.
6. PW-4/ Ret. SI Om Prakash deposed that on 20.07.2018, he was posted at PS Anand Parbat as SI. DD No. 19A was marked to him and he reached the spot along with W/Ct. Renu where they met Ct. Praveen and HC Sunil. On interrogation, accused revealed his name as Soniya. On checking the cartons, it was found containing 48 quarter bottles each of Crazy Romeo (for sale in Arunachal Pradesh only). He requested public persons to join the present investigation, but none of the them agreed and they all left the spot without disclosing their names and addresses. He send Ct Sunil to PS Anand Parbat to bring the seal. After some time seal was brought by Ct.
FIR No. 0203/18 State Vs. Soniya 5 of 18
Digitally
signed by
CHARU
CHARU ASIWAL
ASIWAL Date:
2024.10.15
04:33:18
+0530
Sunil. Sample bottles as well as cartons were sealed with the seal of APRVT-II, Case property was seized vide seizure memo Ex. PW- 2/A. He filled form M-29 at the spot. Thereafter, he recorded the statement of Ct. Praveen Ex. PW-2/B, prepared the tehrir Ex. PW- 4/A and handed over the same to Ct. Praveen for registration of FIR. Ct. Praveen went to the PS, got the FIR registered, and returned to the spot along with copy of FIR. Thereafter, he prepared the site plan Ex. PW-4/B, accused was arrested and personally searched vide memos Ex. PW-2/C and Ex. PW-2/D. Case property were sent to the Excise Lab through Ct. Praveen vide RC No. 205/21/18. After, completion of investigation, he filed the charge sheet.
7. Thereafter, Prosecution evidence was closed vide order dated 05.08.2024, the statement of accused Soniya under Section 281 r/w 313 Cr.P.C was recorded on 19.09.2024. The accused opted not to lead the defense evidence. Thereafter final arguments were heard. I have given thoughtful consideration to the submissions of the accused and the State. Ld. APP submitted that Prosecution has been successful in proving guilt against accused beyond reasonable doubt. Per contra, Ld. Defense Counsel submitted that Prosecution failed to prove guilt against accused beyond reasonable doubt as Prosecution has not joined independent witnesses.
8. Before proceeding further, it is important to go through the Section 33 of the Delhi Excise Act, 2009 with which the accused has been charged in the present case, which is as follows: -
FIR No. 0203/18 State Vs. Soniya 6 of 18 Digitally signed by CHARU CHARU ASIWAL Date: ASIWAL 2024.10.15 04:33:26 +0530 33 Delhi Excise Act, 2009. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. - whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any license, permit or pass, granted under this Act.
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale;
(d) uses, keeps or has in his possession any material, still utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari;
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six FIR No. 0203/18 State Vs. Soniya 7 of 18 Digitally signed by CHARU CHARU ASIWAL ASIWAL Date:
2024.10.15 04:33:33 +0530 months but which may extend to three years and with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees.
9. In the present case, the Prosecution has alleged that the police officials of PS Anand Parbat recovered illicit liquor on 20.07.2018 at about 08:50 am, in front of H.No. RC-220, Rajasthan Colony, Delhi within the jurisdiction of PS Anand Parbat, accused found in possession of illicit liquor as mentioned in seizure memo as Mark 'A' without any license, permit or pass. Thus, the Prosecution was obliged to prove that the accused were found in the possession of intoxicant beyond the permissible limits without any license or permit.
10. It is a settled proposition of criminal law that the Prosecution is supposed to stand its own legs and to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled law that primary burden of proof for proving offence in a criminal trial rest on the shoulders of the Prosecution. It has to be seen whether the Prosecution had been able to establish the guilt of the accused beyond reasonable doubt.
ANALYSIS AND FINDINGS Absence of independent witnesses
11. As elaborated above, the Prosecution has examined four FIR No. 0203/18 State Vs. Soniya 8 of 18 Digitally signed by CHARU CHARU ASIWAL ASIWAL Date:
2024.10.15 04:33:40 +0530 witnesses who all are formal/police witnesses. Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the Prosecution. The recovery is alleged to have been effected from a public place. Thus, at the place and time of the alleged recovery of illicit liquor and apprehension of the accused, public persons would in all likelihood have been present and available or have at least passed by the spot. PW-2 stated in his testimony that he had asked some public persons to join the investigation but they all refused to join the same.
12. The Prosecution has failed to prove that any serious effort was made by recovery witnesses who were police officials to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join respectable persons of the society. Further, there is nothing on record to show that recovery witnesses / police officials had served any notice under Section 160 CrPC upon the persons who refused to join the investigation Same has not been done in the present case, rather, PW-2, PW3 and PW-4 categorically deposed that no notice whatsoever were issued to the said public persons. Joining of independent witnesses would have given credibility to the recovery proceeding. Therefore, non-joining of independent witness casts a doubt on the fairness of the investigation.
In a case law reported as "Anoop V/s State", 1992 (2) FIR No. 0203/18 State Vs. Soniya 9 of 18 Digitally signed by CHARU CHARU ASIWAL Date: ASIWAL 2024.10.15 04:33:47 +0530 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 FIR No. 0203/18 State Vs. Soniya 10 of 18 Digitally signed by CHARU CHARU ASIWAL Date: ASIWAL 2024.10.15 04:33:53 +0530 petitioner". "4. It is well settled principle of the law that the Investigation 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 FIR No. 0203/18 State Vs. Soniya 11 of 18 Digitally signed by CHARU CHARU ASIWAL ASIWAL Date:
2024.10.15 04:34:00 +0530 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. 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".
13. 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 some passersby were asked to join the investigation but none agreed without giving any FIR No. 0203/18 State Vs. Soniya 12 of 18 Digitally signed by CHARU CHARU ASIWAL Date: ASIWAL 2024.10.15 04:34:05 +0530 written notice to them does not inspire the confidence of the Court.
14. Having observed as above, this Court is also conscious that the Prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the Prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the Prosecution version.
Other infirmities in the Prosecution case
15. 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:
"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 FIR No. 0203/18 State Vs. Soniya Digitally 13 of 18 signed by CHARU CHARU ASIWAL ASIWAL Date:
2024.10.15 04:34:15 +0530 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."
16. 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.
17. Further, as per evidence on record, the seal after use was not given to any independent public person rather the evidence is completely silent as to whom the seal after use was handedover. Considering the present circumstances wherein no public person has joined the investigation, it is a natural assumption that the seal after use was handed over to police official only. Such police 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. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering FIR No. 0203/18 State Vs. Soniya 14 of 18 Digitally signed by CHARU CHARU ASIWAL ASIWAL Date:
2024.10.15 04:34:22 +0530 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, 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."
18. PW-2 is recovery witness in the present case. The same is clear from his deposition and is also reflected in the seizure memo. He deposed that case property was seized vide seizure memo Ex.PW2/A. Thereafter, endorsement on rukka Ex.PW2/B was prepared and same was sent through him for registration of FIR. It is, therefore, clear that the seizure memo of the liquor was prepared FIR No. 0203/18 State Vs. Soniya 15 of 18 Digitally signed by CHARU CHARU ASIWAL Date: ASIWAL 2024.10.15 04:34:29 +0530 at the spot before the rukka was sent to the police station for registration of the FIR. Now perusal of seizure memo shows that seizure memo do not contain the DD entry number, but it contains the details of present FIR. If recovery was effected from the accused, then contemporaneous entry should have been made on the recovery memo showing all the recovered articles. Contemporaneous entry in recovery memo reflects the sanctity of documents as well as genuineness of the fact that whatever was recovered was entered contemporaneously into the recovery memo. The conduct of IO in not mentioning the DD number on the seizure memo creates some doubt regarding genuineness of recovery proceedings. Further, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo despite the fact that FIR was not registered at the time of recovery proceedings. This Court is also unable to understand as to why DD number was not mentioned on seizure memo after effecting recovery from accused if FIR was not registered at the time of recovery. The same leads to only one inference that either the said document was prepared later or that the FIR was registered at an earlier point of time. In other words, mentioning of FIR number on seizure memo was not contemporaneous with the preparation of seizure memo.
CONCLUSION
19. 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 FIR No. 0203/18 State Vs. Soniya 16 of 18 Digitally signed by CHARU CHARU ASIWAL ASIWAL Date:
2024.10.15 04:34:39 +0530 prosecution version highly doubtful coupled with the fact that prosecution failed to name or examine any independent public witness. 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 prosecution 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 accused 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 beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt.
20. It is trite in criminal jurisprudence that the Prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof FIR No. 0203/18 State Vs. Soniya 17 of 18 Digitally signed by CHARU CHARU ASIWAL ASIWAL Date:
2024.10.15 04:34:45 +0530 beyond reasonable doubt, that too on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
21. In light of the above discussion, it can be safely said that Prosecution remained unsuccessful in proving guilt of accused beyond all reasonable doubt. Therefore, benefit of doubt is hereby given to accused and accused Soniya, W/o Sh. Manjeet Kumar is hereby acquitted for charges of commission of offence under Section 33 Delhi Excise Act, 2009.
The bail bonds U/s 437-A Cr.P.C. are to be furnished which would remain valid for a period of six months.
22. This Judgment contains 18 pages.
Digitally signed by CHARU CHARU ASIWAL
ASIWAL Date:
2024.10.15
Announced in open Court (Charu Asiwal)
04:34:56 +0530
on 15th day of October, 2024 JMFC-05/West, Tis Hazari
Delhi
FIR No. 0203/18 State Vs. Soniya 18 of 18