Delhi District Court
State vs Nirmala on 19 October, 2023
FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
PATIALA HOUSE COURT,
NEW DELHI
Presided over by- Ms. Isha Singh, DJS
Cr. Case No. -: 2292/2020
Unique Case ID No. -: DLND020078522020
FIR No. -: 441/2020
Police Station -: SAGARPUR
Section(s) -: 33 Delhi Excise Act
In the matter of -
STATE
VS.
NIRMALA @ BAGRO
W/o Sh. Roop Singh ,
R/o H. No. RZ-47A, G-Block, West Sagarpur, New Delhi.
.... Accused
1. Name of Complainant : Ct. Nihal Singh
2. Name of Accused : Nirmala @ Bagro
Offence complained of or
3. : 33 Delhi Excise Act
proved
4. Plea of Accused : Not guilty
5. Date of commission of offence : 10.05.2020
6. Date of Filing of chargesheet : 10.08.2020
7. Date of Reserving Order : 14.10.2023
8. Date of Pronouncement : 19.10.2023
9. Final Order : ACQUITTED
Page no. 1 / 18
FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur
Argued by -: Sh. Ankit Srivastava, Ld. APP for the State.
Sh.Sanjay Kumar, Ld. Counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution is that on 10.05.2020, at about 02:40 PM, infront of H. No. G-47, G Block, West Sagarpur, New Delhi, within the jurisdiction of PS Sagarpur, the accused Nirmala @ Bagro was found in possession of a white colour plastic katta containing 65 quarter bottles of il-
licit liquor, with each bottle having label of 'Asli Santara Masaledar Desi Sharab for sale in Haryana only, 180 ml' and that, the accused was found in possession of such liquor without any licence or permit, thereby, committing an offence punishable u/s 33 of Delhi Excise Act, 2009.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. Thereafter, supplementary charge-sheet was filed after procuring the Excise result qua the sample bottle of illicit liquor recovered from the accused. After taking cognizance of the offence, the accused was sum- moned to face trial.
3. On her appearance, a copy of charge-sheet as well as supplemen- tary charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima Page no. 2 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur facie case against the accused, charge under section 33 of Delhi Excise Act, 2009 was served upon accused to which she pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
4. To prove its case beyond reasonable doubt against the accused, the prosecution led the following oral and documentary evidence.
ORAL EVIDENCE
PW 1 : HC Krishan Kumar (IO)
PW 2 : HC Nihal Singh (Complainant)
PW 3 : W/Ct. Manisha
PW 4 : HC Sandeep
DOCUMENTARY EVIDENCE
Ex. PW1/A : Statement of complainant.
Ex. PW1/B : Form M-29
Ex. PW1/C : Seizure memo
Ex. PW1/D : Rukka
Ex. PW1/E : Site plan
Ex. PW1/F : Notice u/s 41A CrPC
Ex, PW-1/G : Disclosure statement.
Ex. P1 Order permitting destruction of case
:
(Colly.) property
Photographs of plastic katta containing
Ex. P2 :
case property
Unsealed Sample bottle of illicit liquor
bearing label 'Asli Santra Masaledar
Ex. P3 :
Desi Sharab for sale in Hayana only,
180 ml'
Page no. 3 / 18
FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur
Mark RC bearing no. 71/21/20 dated
:
PW4/A 09.08.2020.
DOCUMENTS ADMITTED UNDER SECTION
294 CrPC
Ex. A1 : FIR No. 441/2020
Certificate u.s 65B of IEA supporting
Ex. A2 :
the FIR
Ex. A3 : DD No. 44B dated 10.05.2020
Ex. A4 : Excise Report dated 28.07.2020.
4.1 PW1/IO HC Krishan Kumar deposed that on 10.05.2020, upon
receiving information vide DD No.44D regarding recovery of illicit liquor, he along with W/Ct. Manisha reached at the site of occurrence, i.e., H. No. G-47, G Block, West Sagarpur, New Delhi, where Ct.Nihal Singh was found present, who handed him over one white colour plastic katta filled with quarter bottles of illicit liquor; and produced the accused Nirmala@Bagro from whom, the said re- covery of illicit liquor was reported to be effected. He recorded the complaint of Ct. Nihal Singh and also asked four to five public persons to join the investiga- tion, however, they all left the spot, citing their personal difficulties. He further stated that he opened the said plastic katta recovered from accused Nir- mala@Bagro, which was found to contain 65 quarter bottles of illicit liquor and each bottle was having label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml'. He stated that one quarter bottle was drawn as a sample from the said katta and the remaining bottles were left inside the same katta. He stated that sample so drawn out was marked as Serial no. S-1, whereas, plastic katta was marked as Serial no. S-1A. He deposed that the sample of quarter bot- tle so drawn and the plastic katta were tied separately with a white colour cloth Page no. 4 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur and they were sealed separately with the seal of 'AK'. He stated that he filled the form M-29. He stated that the case property including the sample and the katta containing the remaining quarter bottles of illicit liquor were duly seized by him. He stated that after the seizure, the seal of 'AK' was handed over by him to Ct. Nihal Singh. He stated that thereafter, rukka was prepared by him upon the basis of the complaint of Ct. Nihal Singh and the said rukka was sent to PS, via Ct. Nihal Singh, for the registration of FIR. He stated that pursuant to the registration of the FIR, he prepared the site plan, served notice u/s. 41A CrPC upon the accused, recorded her disclosure statement. Thereafter, the case prop- erty was deposited in malkhana, PS Sagarpur. He further deposed that on 09.08.2020, upon his directions, Ct. Sandeep obtained sample quarter bottle so seized in the present case from MHC(M) and got it deposited with Excise Con- trol Laboratory for it's chemical examination pursuant to which the Excise Re- port was obtained. After completion of investigation, he prepared the charge- sheet and submitted the same before the court. The accused Nirmala@Bagro was exempted from personal appearance, subject to her Counsel not disputing her identity for the purposes of trial. He correctly identified the photograph of the plastic katta bearing the case FIR details and the sample of the quarter bottle of illicit liquor, produced in unsealed condition bearing the label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml' During his cross-examination, PW1/IO HC Krishan Kumar ad- mitted that the spot from where illicit liquor was recovered from possession of the accused was a residential area, where public persons were available. He ad- mitted that no notice to join the recovery proceedings was given to any of the public persons, who refused to join the investigation. He further admitted that no seal handing over memo was prepared by him, at the time of handing over the Page no. 5 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur seal to Ct. Nihal Singh. He admitted that no seal on the katta containing the case property, is visible in the photograph of the plastic katta (Ex. P2).
4.2 PW2/Complainant Ct. Nihal Singh deposed on oath that on 10.05.2020 at around 2:40 PM, while he was on patrolling duty, he noticed a lady in front of H. No. RZ-G-47, G Block, West Sagarpur, New Delhi who was selling illicit liquor out of a white colour plastic katta on her head. He stated that he managed to apprehend the said lady, who was later on identified as Nir- mala@Bagro. He stated that upon suspicion, the white colour plastic katta car- ried by the lady Nirmala@Bagro was checked and was found to contain quarter bottles filled with illicit liquor. He stated that the recovery of illicit liquor was informed at PS Sagarpur, pursuant to which IO/HC Krishan Kumar along with W/Ct. Manisha reached at the spot. He stated that he produced the accused alongwith the quarter bottles of illicit liquor recovered from her, before the IO. He stated that the IO recorded his complaint and also asked four to five public persons to join the investigation, however, they all left the spot, citing their per- sonal difficulties. He stated that IO/HC Krishan Kumar opened and checked the plastic katta recovered from the accused Nirmala @ Bagro, which was found to contain 65 quarter bottles of illicit liquor with all such bottles having the label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml'. He stated that IO/HC Krishan Kumar drew out one quarter bottle as a sample from the said katta, which was marked as serial no. S1 and the remaining bottles were left inside the said plastic katta, and the katta was marked as serial no. S1A. He stated that the sample of quarter bottle so drawn out and the plastic katta con- taining the remaining bottles were tied with a white colour cloth and sealed with the seal of 'AK'. He stated that after seizure, the seal was handed over by the IO Page no. 6 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur to him. He stated that the IO filled in Form M-29, prepared the rukka on the ba- sis of his complaint and sent the same via him, to the PS for the registration of FIR. He stated that pursuant to the registration of the FIR, IO prepared the site plan, served notice u/s. 41A CrPC upon the accused, recorded her disclosure statement. Thereafter, the case property was deposited in malkhana, PS Sagarpur. He correctly identified the accused. He also correctly identified the photograph of the plastic katta bearing the case FIR details and the sample of the quarter bottle of illicit liquor, produced in unsealed condition bearing the label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml' During his cross-examination, PW2/Complainant Ct. Nihal Singh admitted that the spot from where illicit liquor was recovered from pos- session of the accused was a residential area, where public persons were avail- able. He admitted that no notice to join the recovery proceedings was given to any of the public persons, who refused to join the investigation. He further ad- mitted that no seal handing over memo was prepared by IO. He failed to remem- ber the DD number vide which he was on patrolling duty on the date of the inci- dent. He admitted that no seal on the katta containing the case property, is visi- ble in the photograph of the plastic katta (Ex. P2).
4.3 PW3 W/Ct. Manisha deposed on similar lines as PW1/IO HC Kr- ishan Kumar. She is also a witness to the recovery proceedings and remained as- sociated with the IO in the investigation so carried out by him. She stated that upon apprehension of the accused Nirmala@Bagro and recovery of illicit liquor from her, IO HC Krishan Kumar reached at the spot, recorded the complaint of Ct. Nihal Singh, seized the case property and also affixed his seal 'AK' to it. She stated that the IO HC Krishan Kumar handed over his seal to Ct. Nihal Singh, Page no. 7 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur after sealing the case property. She stated that IO/HC Krishan Kumar prepared rukka upon the complaint of Ct. Nihal Singh, got the present FIR registered. She correctly identified the accused. She also correctly identified the photograph of the plastic katta bearing the case FIR details and the sample of the quarter bottle of illicit liquor, produced in unsealed condition bearing the label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml'.
During her cross-examination, PW3 W/Ct. Manisha admitted that the spot from where illicit liquor was recovered from possession of the ac- cused was a residential area, where public persons were available. She admitted that no notice to join the recovery proceedings was given to any of the public persons, who refused to join the investigation. She further admitted that no seal handing over memo was prepared by IO at the time of handing over of 'AK' seal to Ct.Nihal Singh. He admitted that no seal on the katta containing the case property, is visible in the photograph of the plastic katta (Ex. P2).
4.4 PW4/HC Sandeep proved copy of Road certificate bearing no.71/21/2020 dated 09.08.2020, vide which he obtained one quarter bottle of case property duly sealed with the seal of 'AK', from the concerned MHC(M) and deposited the same with Excise Control Laboratory, Vikas Bhawan, ITO, New Delhi, upon the instructions of the IO/HC Hari Kishan. He further stated that no tampering was done to the sample of the case property till the time it re- mained in his custody.
During his cross-examination, PW4/HC Sandeep admitted that he did not sign on register no.19, while obtaining the case property from the con- cerned MHC(M).
Page no. 8 / 18FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
5. On 14.10.2023, statement of accused Nirmala@Bagro u/s 313 Cr.PC was recorded, wherein she denied the case of the prosecution and stated that she has been falsely implicated in the present case. She chose not to lead de- fence evidence and hence, DE was closed and matter was fixed for final argu- ments.
ARGUMENTS-
6. During final arguments, it was argued by Ld. APP for the State that the case against the accused stood proved in view of the evidence led by the prosecution. Accordingly, he argued that accused deserved to be convicted for the offences u/s 33 Delhi Excise Act and the relevant provision of Delhi Excise Act.
On the other hand, the Ld. defence counsel argued that the prosecution has failed to bring out a case against the accused, especially in view of the fact that no independent public witnesses were made a part of the search and seizure of the case property, despite the fact that the alleged illicit liquor was recovered from a public place. It has been argued that the case property was falsely planted upon the accused and as such, she is liable to be acquitted INGREDIENTS OF THE OFFENCE-
7. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to establish the offence under Section 33 of the Excise Act, the prosecution must fulfil all the essential ingredients of the offence. Section 33 of the Excise Act, 2009 is reproduced for ready reference-
Page no. 9 / 18FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur "33. 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, 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 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 lath rupees"
8. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evi- dence that points towards the guilt of the accused.
9. In the case such as the present one, the fact of recovery, seizure, sampling and the chain of custody is of utmost importance to bring home the guilt of an accused. The case of the prosecution is that one plastic katta containing 65 quarter bottles having label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml' were seized from the accused. Recovery of the alleged illicit liquor which the accused was supposedly in possession of, without a valid license, was effected, in a residential area and the Page no. 10 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur time of recovery was 2:40 PM, however no public person was made a witness to the said recovery. It is not disputed by the prosecution witnesses on whose testimony the prosecution seeks to rely, that at the time of recovery of the illicit liquor, there were members of general public available at the spot from where recovery was made, however it is both apparent and surprising that no independent witness was made to join the proceedings by the police.
10. The importance of joining public persons in the recovery proceedings has time and again been emphasised by the judicial pronouncements. At this juncture, reference is made to the judgement of Roop Chand v. State of Haryana 1989 SCC OnLine P&H 539 : (1989) 2 RCR (Cri) 504, wherein it has been observed:
"4. It is well settled principle of 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.
5. 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 the witnesses from the public had refused to join the investigation, the Investigating Officer must have noted down their names and addresses etc. and would have proceeded against them under the relevant provisions Page no. 11 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur 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 pubic is an after thought and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful."
11. Reliance is placed upon the judgement of State of Punjab v. Balbir Singh, AIR 1994 SC 1872, wherein the Hon'ble Supreme Court has observed that:
"It therefore emerges that non-compliance 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 non- compliance. It is well-settled 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."
12. Burden therefore, lies on the prosecution to establish that the association of public witnesses was not possible in the facts and circumstances of the case. However, in the present case, nothing in the testimony of prosecution witnesses suggests that sincere efforts were made by them to involve independent witnesses in the process of recovery. In the present case, there was no lack of time and opportunity to associate some independent Page no. 12 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. As per documentary evidence, the plastic katta containing illicit liquor was recovered at 02:40 PM. The rukka Ex. PW1/D was prepared at 04:25 PM. The FIR (Ex.A1) was registered at 4:43 PM. Therefore, it is clear that the police officials were not hard pressed for time as they remained at the spot from atleast 02:40 PM till atleast 04:43 PM. However, despite being at the spot for about two hours, they did not join any public person in the investigation. IO has even admitted the presence of public witnesses at the spot and yet no independent public witnesses, in stark violation of Section 100(4) CrPC, were joined in the investigation at the time of alleged recovery. IO did not even mention the names or addresses of those persons who refused to join the recovery proceedings. No explanation has come on record to show whether any notice was served upon the public witnesses requiring them to join the proceedings or to face action under Section 187, Indian Penal Code.
13. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the police in the present case cannot be ruled out. Reliance is placed upon the Judgement of the Hon'ble Supreme Court in case of Hemraj vs State of Haryana (AIR 2005 SC 2110) wherein it was observed that, "the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case."
14. The present FIR has been registered on the information of PW2/Ct.Nihal Singh, whose version is that on 10.05.2020 at around 2:40 PM, while he was on patrolling duty, he noticed a lady in front of H. No. G-47, G Page no. 13 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur Block, West Sagarpur, New Delhi who was selling illicit liquor out of a white colour plastic katta on her head. However, no DD entry has been tendered into evidence regarding the factum of patrolling duty of PW2/Ct.Nihal Singh, on the date of the incident. In this regard, as per the mandatory provision of the Punjab Police Rules, DD entry prior to departure and after arrival is required to be lodged in the dairy of the police station, by each police official. Rule 49, Chapter 22 of the Punjab Police Rules, 1934 is reproduced 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 of elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on the arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal."
In this case, the failure to recollect the DD number vide which PW2/Ct.Nihal Singh was on patrolling duty, is clear from his cross-examination on record. Since public persons were not joined in the investigation, the departure entry of the aforesaid police official PW2/Ct.Nihal Singh, regarding his patrolling duty on the date of incident and the time when recovery of illicit liquor was effected from the possession of the accused, becomes a vital piece of evidence. However, no such daily diary entry regarding departure of PW2/Ct.Nihal Singh is tendered in evidence as part of his deposition. Thus, there is no documentary evidence to corroborate the version of PW2/Ct.Nihal Singh.
15. Further, as per the testimonies of the prosecution witnesses, PW1/IO HC Krishan Kumar opened the plastic katta recovered from accused Page no. 14 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur Nirmala @ Bagro, which was found to contain 65 quarter bottles of illicit liquor and each bottle was having label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml'. He stated that one quarter bottle was drawn as a sample from the said katta and the remaining bottles were left inside the same katta. He deposed that the sample of quarter bottle so drawn and the plastic katta were tied separately with a white colour cloth and they were sealed separately with the seal of 'AK'. He stated that after the seizure of the case property, the seal of 'AK' was handed over by him to Ct.Nihal Singh. In this regard, there is no separate seal handing over or seal taking memo on record. Thus, the case property has been transferred from one official to another, however, no DD entry has been made with regard to the same. Further, the seal remained with the junior police official as, it is not the case of the prosecution that the seal was handed over to any independent person after use. Pertinently, there is no documentary evidence to show if the seal was deposited in the malkhana, so that the same was outside the reach of the IO/other police officials. As per the testimony of prosecution witnesses, only the case property was deposited in the malkhana and there is no entry of deposit of the seal. What was the fate of the seal remains unexplained. In such circumstances, the possibility of interference or tampering of the seal and the contents of the seized case property cannot be ruled out. Reliance is placed upon the judgement of the Hon'ble High Court of Delhi in the case of Safiullah v. State (Delhi Admn.) 1992 SCC OnLine Del 516 :(1993) 49 DLT 193. Therefore, it is safe to conclude that the prosecution has NOT been able to prove safe and tamper-proof custody of the case property in the present case.
16. It is also to be noted that PW2/Ct. Nihal has deposed that after Page no. 15 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur intimation of recovery of illicit liquor was sent to the police station, the IO came to the spot, took out the illicit liquor and prepared the seizure memo. He also sealed the remaining property. Thereafter, the rukka was handed over to PW2/Ct. Nihal for registration of FIR. Similar is the deposition of the PW3/WCt. Manisha and PW1/IO HC Krishan Kumar. In the consistent version of the prosecution witnesses regarding the chronology of events, the seizure memo Ex. PW1/C was prepared before the registration of the FIR. However, it is observed that the seizure memo contains the description and number of the FIR. If the FIR was not in existence at the time of preparation of seizure memo than it is a open glaring question as to how the FIR number surfaced on Ex.PW1/C. This puts the genuineness of the seizure memo Ex. PW1/C under a cloud of suspicion and gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the illicit liquor or number of the said FIR was inserted in the seizure memo after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the case property in the manner alleged by the prosecution. Reliance is being placed upon the judgment of Hon'ble High Court of Delhi in the case of Giri Raj v. State, 1999 SCC OnLine Del 1030. That being said, the benefit arising out of a doubtful recovery of case property must necessarily go to the accused.
17. Moreover, in the considered opinion of this court, even the identifi- cation of the case property is not established. It is stated by the prosecution that the case property has been destroyed on 21.02.2022, as per the directions of the Assistant Commissioner (Excise) contained in order bearing no. Con/Misc/ 2022/5038-5039 dated 09.02.2022. In this regard, even though Section 60 of the Page no. 16 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur Delhi Excise Act provides that non-production of case property does not affect the conviction, however, at the same time, the provision also lays down that samples and photographs of the confiscated property are to be preserved to meet evidentiary requirements. During the examination of prosecution witnesses, one quarter bottle in unsealed condition bearing the label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml' was produced as sample of the case property, for the purposes of identification. Further, only one photograph capturing the plastic katta, in unsealed condition, supposedly containing the case property/gatta petties comprising illicit liquor were shown to the witnesses for the purposes of identification of case property. It is pertinent to mention that no photograph of the entire lot of case property or any video recording as to the de- struction of the case property was produced by the prosecution. The sample of the case property so produced was also in unsealed condition and without any label. Further, it stands admitted by prosecution witnesses in their cross-exami- nation that the plastic katta in photograph Ex. P2, reportedly containing case property does not bear any seal. In such circumstances, the standard of proof be- yond reasonable doubt, cannot be said to be met. Accordingly, the identification of the case property is not established and this fact becomes fatal to the case of prosecution, going to its roots.
18. In my opinion, the circumstances mentioned above are sufficient to punch holes in the version of the prosecution. The case of the prosecution cannot be said to be proved on the requisite threshold. Therefore, considering the above discussion, the inevitable conclusion is that the prosecution has failed to prove beyond reasonable doubt that illicit liquor was recovered from the possession of the accused. While coming to this conclusion, this Court is also conscious of the presumption enshrined under Section 52 of the Delhi Excise Act. However, the Page no. 17 / 18 FIR No.441/2020 (State vs. Nirmala @ Bagro) PS Sagarpur same is not applicable in the present case as the recovery from possession of the accused, which is the condition precedent for invoking the presumption, is not proved in the present case.
CONCLUSION
19. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 33 of the Excise Act beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution. The recovery of the illicit liquor from the possession of the accused, which was the essential ingredient of the offence, is also highly doubtful. Other inconsistencies in the version of the prosecution have crumbled the whole case of the prosecution.
20. Resultantly, the accused NIRMALA @ BAGRO W/o SH. ROOP SINGH is entitled to benefit of reasonable doubt and is hereby found not guilty. She is ACQUITTED of the offence under Section 33 of the Delhi Excise Act, 2009.
Announced in the presence of
the accused in open court (Isha Singh)
MM-03/PHC/NDD/19.10.2023
Certified that this judgment contains 18 pages and each page bears my signature.
(Isha Singh) MM-03/PHC/NDD/19.10.2023 Page no. 18 / 18