Delhi District Court
State vs . Raj Kumari on 18 July, 2022
IN THE COURT OF ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, SHAHDARA DISTRICT, DELHI
Presided by: Miss Aakanksha Vyas
State Vs. Raj Kumari
FIR No.: 277/2013
PS: Anand Vihar
JUDGMENT
A Case Identification 80304/2016
Number
B Name of the Ct. Punit, No. 1909, PS: Anand Vihar
Complainant
C Name of the accused & Raj Kumari D/o Sh. Kushal Pal R/o H.
her parentage and No. E-85/45, J. J. Camp, Anand Vihar,
address Delhi.
D Date of commission of 15.08.2013
the offence
E Date of Institution of the 16.08.2014
case
F Offences Charged Offence u/s 33 Delhi Ex. Act
G Plea of accused Pleaded not guilty
H Order Reserved on 13.07.2022
I Date of Pronouncement 18.07.2022
of judgment
J Final Order Acquitted
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Vide this order, I shall dispose off the present case in which the accused herein namely Raj Kumari has faced trial for the commission of offence under section 33 of the Delhi Excise Act, 2009. Briefly put, the case of the prosecution is that on 15.10.2013 at about 04:30 PM in front of E-85/45, Jhuggi Anand Vihar, Delhi, the accused was found in possession of illicit FIR No. 277/2013 State Vs. Raj Kumari Page No. 1/7 liquor without valid permit or license and thereby, committed offence punishable under section 33 of the Delhi Excise Act. The same was seized from the accused and consequently, FIR no. 277/13 dated 15.08.2013, PS Anand Vihar, was registered against the accused and after completion of investigation, chargesheet was filed against her for the commission of the abovementioned offence. The accused was summoned and charged with the commission of the abovementioned offence to which she pleaded not guilty and claimed trial. However vide separate statement, the accused admitted the genuineness of the excise report qua the liquor seized from her i.e. Ex. P-1.
2. To prove its case, the prosecution examined six witnesses. PW1 HC Puneet is the complainant, who had initially apprehended the accused with the illicit liquor on 15.08.2013. PW-2 is ASI Vinod, who is the duty officer, who proved the registration of the present FIR Ex. PW-2/C (OSR) as well as endorsement made by him on the rukka Ex. PW-2/B. The investigating officer of this case Inspector Narender was examined as PW- 6 and he proved the statement of PW-1/complainant Ex. PW-1/A, rukka Ex. PW-6/A, site plan Ex. PW-6/B, seizure memo of the illicit liquor Ex. PW-1/B and arrest memo of the accused Ex. PW-1/C, all the above mentioned documents having being prepared by him. PW-3 is Ct. Meenakshi and she proved the personal search memo of the accused prepared by her Ex. PW-3/A. PW-4 is HC Santosh from Excise Intelligence bureau, who had also reached the spot upon secret information and had initially apprehended the accused alongwith PW-1 and PW-5 is HC Sandeep, who had accompanied PW-1 on 15.08.2013 to apprehend the accused.
FIR No. 277/2013 State Vs. Raj Kumari Page No. 2/7PW-1, PW-3, PW-4, PW-5 and PW-6, all identified the accused in the court. PW-1, PW-4 and PW-5 are also witnesses to the seizure memo prepared by IO/PW-6 qua the liquor seized from the accused.
3. The testimony of PWs shall be discussed during appreciation of evidence. After completion of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.PC in which she denied the case of the prosecution and alleged that she was falsely implicated and the case property was planted upon her.
However, the accused did not lead defence evidence. Thereafter final submissions were heard.
4. The accused has been charged with the commission of offence under section 33 of the Delhi Excise Act.
"Penalty for unlawful import, export, transport, manufacture, possession, sale,etc. (1) Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act-
(a) manufactures, imports, exports, transport or remove 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 imprionment for a term which shall FIR No. 277/2013 State Vs. Raj Kumari Page No. 3/7 not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees."
5. I have carefully perused the file and examined the testimonies of the witnesses and I find that various facts have come on record which cast a strong doubt upon the case of the prosecution. To begin with, in the present case, the place of recovery is E Block, JJ Camp, Anand Vihar which is a residential area. Yet, no public witness was joined in the recovery or arrest proceedings. The PWs i.e. PW1, PW3 and PW6 have all deposed that public persons were present at the spot, but no public witness has been examined during investigation. Further, PW-1, PW-3 and PW-6 have simply deposed that public persons were asked to join investigation but none agreed. However, the testimony of the said PWs does not reflect that sincere efforts were made to join the public witnesses in as much as they deposed that no notice was given by IO/PW-6 to public persons to join investigation. The names of the public persons who were asked to join investigation is also not on record. Section 100 (4) Cr.PC casts statutory duty upon the officials conducting search to join two respectable persons of the society, which has not been done in the present case. The police officers are also entrusted with ample power under the provisions of Cr.P.C. to initiate proceedings u/s 187 IPC if any person does not cooperate with them despite giving notice. The non joining of independent witness casts a serious doubt over the fairness of the investigation by police. In this regard, reliance is placed upon the judgment in the case titled Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, wherein it has been held as under:
"Admittedly, there is no impediment in believing the version of FIR No. 277/2013 State Vs. Raj Kumari Page No. 4/7 the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
Reliance is also placed upon the judgment of the Delhi High Court in case titled Anoop Joshi Vs. State 1992(2) C.C. Cases 314 in which it was observed as under:
"It is repeatedly laid down by this Court 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 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 rigors 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".
Similar observations have been made in cases titled Narsi v. State of Haryana 1998 (4) Crimes 105 (SC) and State of Rajasthan v. Teja Singh 2001 (II) AD (SC) 125.
FIR No. 277/2013 State Vs. Raj Kumari Page No. 5/76. Next, the arrival and departure entries of the police officials who were allegedly present at the spot and apprehended the accused with case property is a vital piece of evidence, but the same have also not been proved on record. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per the PPR rules. It is apposite at this juncture to reproduce Chapter 22 Rule 49 of Punjab Police Rules, 1934, which 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 personality 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."
PW1 and PW5, who initially apprehended the accused on the basis of secret information were specifically questioned regarding their departure entries but they deposed during cross examination that they did not remember the departure entry made by them prior to leaving for the patrolling duty on the day on which the illicit liquor was allegedly seized from the accused. In the present case, admittedly, no public witness has joined the investigation and thus it was more important and incumbent in the present case that the arrival and departure entries be proved to corroborate the factum of presence of the police personnel on the spot.
7. Further, PW-4 HC Santosh deposed that he had also received secret information regarding possession of illicit liquor by accused and he had FIR No. 277/2013 State Vs. Raj Kumari Page No. 6/7 informed his senior, but he could not tell the name of this senior officer. Further, PW-4 deposed during cross-examination that he had met the secret informer near the spot and after some distance, he met PW-1 and PW-5 and thereafter, the secret informer pointed towards the spot and left. However, PW-1 and PW-5 have not deposed anything to this effect in their testimony.
In other words, apart from the fact that there is no public witness joined in the investigation of the present nor the presence of the police personnel at the spot proved by the arrival and departure entries, the discrepancies discussed above also seriously vitiate the case of the prosecution.
8. It is settled law that in a criminal case, the prosecution is under the obligation to prove the case against the accused beyond all reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. Accused cannot be convicted on the basis of suspicion or assumptions and suspicion howsoever grave cannot take place of proof. In light of the preceding discussion, the case of the prosecution is not proved beyond all reasonable doubt. Hence, accused stands acquitted of the offence charged. Digitally signed by AAKANKSHA AAKANKSHA VYAS VYAS Date:
2022.07.18 16:06:51 +0300 Announced in the Open (AAKANKSHA VYAS) Court on dated 18th July 2022 ACMM/SHAHDARA DISTRICT/ KARKARDOOMA COURTS/ DELHI/18.07.2022 FIR No. 277/2013 State Vs. Raj Kumari Page No. 7/7