Delhi District Court
State vs . Seema on 28 June, 2022
IN THE COURT OF SH. ANIMESH BHASKAR MANI TRIPATHI,
MM03, SHAHDARA DISTRICT, KARKARDOOMA COURTS
STATE Vs. SEEMA
FIR No. 230/2017
PS: NAND NAGRI
U/S: 33 Delhi Excise Act
CNR No. : DLSH020091622017
Date of commission of offence : 12.04.2017
Date of institution of the case : 30.10.2017
Name of the complainant : Babinder Singh
Name of accused and address : Seema
W/o Late Sh. Rakesh Kumar
R/o H.NO. A3/143, Nand Nagri, Delhi.
Offence complained of or proved : U/s 33 Delhi Excise Act
State Representation : Asst. Public Prosecutor Sh. Ashutosh Pandey
Accused Representation : Sh. Mukesh Kumar
Plea of Accused : Plead not guilty
Final order : Aquitted
Date of judgment : 28.06.2022
State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.1/14
JUDGMENT
1. The SHO, Police Station Nand Nagri has presented this chargesheet against above named accused for initiation of trial U/s 33 Delhi Excise Act, 2009. The case of the prosecution in brief is that on 12.04.2017 at about 3:20 PM at A3/143, Nand Nagri, Delhi accused Seema was found in possession of three plastic kattas containing total 156 quarter bottles of illicit liquor seized as per seizure memo Mark X without any permit or license in contraveniton of provisions of Delhi Excise Act of 180ml each bearing label of Crazy Romeo Whiskey for sale in Arunchal Pradesh only without any valid license or permit and in contravention of Notification issued by Delhi Administration. After completion of the entire investigation final report was presented for trial.
2. After presentation of chargesheet, accused was summoned. Copies of the chargesheet was supplied to the accused U/s 207 of Code of Criminal Procedure, 1973 (for short "CrPC"). Prima facie case U/s 33 Delhi Excise Act was found to be made out against the accused. Accordingly, charge was framed against the accused, to which she pleaded not guilty and claimed trial.
3. The prosecution examined 4 witnesses in support of its case, which are as follows: (3.1.) Ct. Sonal was examined as PW1. He deposed that On 13.04.20217, she joined the investigation along with HC Babinder Singh in the above said case FIR and reached at the spot i.e. A3/143, Nand Nagri, Delhi, where one lady namely Seema met with them and HC. Babinder inquired with the accused Seema and recorded the disclosure statement, the same is Ex. PW1/A She deposed that accused was arrested vide arrest memo Ex. PW1/B. She deposed that accused was personal search by her, however, nothing was recovered from the accused. He deposed that personal search memo is Ex. PW1/C. During cross examination, he left PS at about 10:45 AM and he reached the spot at State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.2/14 around 10:55 AM. He deposed that HC. Babinder prepared arrest memo, search memo at the spot.
(3.2.) Ct. Subhash was examined as PW2. He deposed that on 12.04.2017, he reached in front of A3, Nand Nagri, he saw that one lady namely Seema was trying to take three white cartoon (katta) inside his house. He deposed that on seeing him that lady left the spot quickly. He deposed that he checked the white cartoon and found illicit country liquor inside it and he sent information to the concerned PS. He deposed that after some times, HC Babinder came there and he handed over the case property to the IO HC Babinder. He deposed that IO checked the cartoon and asked the public persons to join the investigation, however, they left the spot without mentioning their names and addresses. He deposed that IO did not serve notice to him due to paucity of time. He further deposed that IO checked the white cartoon in which he found 156 quarter bottles of illicit liquor sale in Haryana only. He deposed that IO found first cartoon containing 47 quarter of illicit liquor sale in Haryana only in which rose has been mentioned, in second cartoon he found 71 quarter of illicit liquor sale in Haryana in which it contains Malta Masaledar and Santra only and in third he found containing 38 quarter of illicit liquor of Santra sale in Haryana only. He deposed that IO marked the each quarter at serial no. 1 to 3 and thereafter IO took four sample each from all cartoons and wrapped with the white cloth mentioning the Mark A1 to A4 and remaining cartoons were seized vide seizure memo PW2/A and made pullanda and also filled M29 Form at the spot. He deposed that the said pullanda was sealed with the seal of BS and the seal after its used, handed over to him. He deposed that IO recorded his statement which is Ex. PW2/B and prepared rukka on the basis of my statement and sent him to the PS for registration of the FIR. He further deposed that he went to PS and got registered the FIR. He deposed that after registration of FIR he handed over the copy of FIR and original rukka to the IO at the spot. He further deposed that IO prepared site plan at his instance.
At this stage, concerned MHCM produced the order of destruction of the case property State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.3/14 vide Order No. .CON/10879/2019/80203 dated 24.04.2019 in which at serial NO. 29 the said case property has been destroyed Excise Commissioner. The same is Mark X. During cross examination, he left the PS at about 3:00 Pm. He deposed that he was alone at that time and he was in uniform on private vehicle. He deposed that he reached the spot at about 3:20 Pm and he had not requested the public person to join investigation as none was present at that time. He deposed that IO reached the spot lonely at about 4:00 PM and he had signed 34 papers at that time. He deposed that IO prepared the seizure memo, rukka and site plan at his instance on which he had signed as a witness. He deposed that he went to PS for the registration of FIR about 5:10 PM and returned back within one hour. He deposed that IO had handed over seal to him after its use after 6:00 PM. He deposed that except IO and he none was present at the spot. He deposed that they left the spot at about 6:30 to 7:00 PM.
(3.3) HC Babinder Singh was examined as PW3. He deposed that on 12.04.2017, he received call vide DD NO. 77B and proceeded to A3/143 Nand Nagri. He deposed that after reaching there he met with, Ct. Subhash who narrated whole incident to him and handed over the case property to him. He deposed that he I checked the cartoon and asked the public persons to join the investigation, however, they left the spot without mentioning their names and addresses. He deposed that he could not served notice to him due to paucity of time. He deposed that he checked the white cartoon in which I found 156 quarter bottles of illicit liquor sale in Haryana only. He deposed that he found first cartoon containing 47 quarter of illicit liquor sale in Haryana only in which rose has been mentioned, in second cartoon he found 71 quarter of illicit liquor sale in Haryana in which it contains Malta Masaledar and Santra only and in third he found containing 38 quarter of illicit liquor of Santra sale in Haryana only. He deposed that he marked the each quarter at serial no. 1 to 3. He further deposed that he took four sample each from all cartoons and wrapped with the white cloth mentioning the Mark A1 to A4 and remaining cartoons were seized vide seizure memo already PW2/A and made pullanda and also filled M29 form at the spot. He deposed that the said pullanda was sealed with the seal of BS. He further deposed that the seal after its used, handed over to Ct. Subhash State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.4/14 which is Ex. PW3/A bears his signature at point A. He deposed that he recorded the statement of Ct. Subhash which is already Ex. PW2/B and he attested his signature at point B. He deposed that he prepared rukka on the basis of statement of Ct. Subhash and sent him to the PS for registration of the FIR. He deposed that Ct. Subhash went to PS and got registered the FIR, after registration of FIR Ct. Subhash returned back to the spot with the copy of FIR and original rukka and handed over the copy of FIR and original rukka to him at the spot. He deposed that he prepared site plan at the instance of Ct. Subhash which is Ex. PW3/B. He deposed that he made an inquiry qua the whereabouts of the accused and came to know that her name is Seema. He deposed that accused could not be found on that day and I returned back to the PS and deposited the malkhana of the concerned PS. He deposed that on 13.04.2017 he along with WCT. Sonal went to the house of the accused where she found and thereafter he interrogated her and arrested her vide arrest memo already Ex. PW1/B. He deposed that WCT. Sonal took personal search of the accused vide personal search memo already Ex. PW1/C. He deposed that he also recorded the disclosure statement of the accused vide memo already Ex. PW1/A. He deposed that accused was medically examined at the hospital and produced before the concerned court from where she was remanded to J.C. He deposed that he sent Ct. Deepak to the Excise Lab with the sample of illicit liquor vide RC No. 87/21/17.I obtained the FSL result from the concerned MHCM and thereafter he filed the chargesheet against the accused through concerned SHO to Hon'ble Court for necessary action.
At this stage, concerned MHCM produced the order of destruction of the case property vide Order No. .CON/10879/2019/80203 dated 24.04.2019 in which at serial NO. 29 the said case property has been destroyed Excise Commissioner. The same is Mark X. During his cross examination, he deposed that he left the PS at about 3:00 Pm. He deposed that he reached the spot at about 3:20 Pm and he had not requested the public person to join investigation as none was present at that time. He deposed that he reached the spot State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.5/14 lonely at about 4:00 PM. He deposed that he had signed 34 papers at that time. He deposed that he prepared the seizure memo, rukka and site plan at his instance on which he had signed as a witness. He deposed that he went to PS for the registration of FIR about 5:10 PM and returned back within one hour. He further deposed that he had handed over seal to him after its use after 6:00 PM. He deposed that they left the spot at about 6:30 to 7:00 PM.
(3.4) Ct. Deepak was examined as PW4. He deposed that on 24.05.2017 MHCM handed over to him four sealed samples quarters of illicit liquor for depositing same at Excise office, ITO New Delhi thereafter he reached Excise office, ITO New Delhi vide road Certificate No. 87/21/17 dated 24.05.2017. He deposed that after deposing the same at Excise office, ITO New Delhi he came back at the PS and handed over receiving of the same to MHCM and during the custody of the sample he had not tampered with the sealed sample During his cross examination, he deposed that he did not not remember whether he had entered any DD entry qua my departure or arrival.
4. Vide statement of accused was u/s 294 Cr.PC dt. 23.02.2021, Witness qua registration of FIR and Chemical examiner report were dropped.
5. Vide order dated 28.05.2022, statement of accused U/s 313 r/w section 281 of Cr.P.C. was recorded, in which all the incriminating evidence were put to the accused. Accused stated that she has been falsely implicated in the present case and she was innocent. Accused opted not to lead any evidence in defence.
6. Learned Assistant Public Prosecutor for the State while summing up prosecution case, submitted that the accused as well as the case property have been correctly identified by the witnesses. He stated that link evidence is also available. He urged that the case has been proved beyond doubt against the accused and prayed for conviction of the accused.
State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.6/147. On the other hand, learned counsel for the accused argued that the accused has been falsely implicated by the police and nothing was recovered from her possession. He submitted that accused was not arrested from the crime scene and the absence of public witnesses to the alleged recovery is fatal to the case of the prosecution. He further pointed out contradictions in the testimony of prosecution witnesses to argue that the prosecution has failed to prove its case beyond reasonable shadow of doubts. He prayed for acquittal of the accused.
8. I have carefully gone through all the records at hand and testimony of the witnesses. After perusal, this court is of the opinion that the point for determination in the present case is whether on 12.04.2017 accused was found in possession of three plastic kattas containing total 156 bottles of illicit liquor at the relevant place and thereby committed an offence punishable U/s 33(1) of Delhi Excise Act.
9. As per the prosecution on the fateful day the accused was found in possession of illicit liquor without any permit or license. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
10. The Ld. APP has relied upon Section 52 of the Delhi Excise Act. As per ld. APP for the state, as soon as the accused is charged of commission of the offence punishable under Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act. The said argument does not find favour with this Court. Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of offence in certain cases (1) In prosecution under Section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.7/14
(2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
11. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act stipulates that as a prerequisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case.
12. At this stage, it is pertinent to point out that, there is not a single public witness to the recovery of the liquor in the list of witnesses. The recovery is alleged to have been effected at A3/143, Nand Nagri, Delhi . The spot of recovery as per the site plan Ex. PW3/B. The place of recovery is, therefore, clearly located in an area where public persons would be readily available. Thus, at the place and time of the alleged recovery of illicit liquor, public persons would in all likelihood have been present and available or have at least passed by the spot.
13. It is also important to point out that, accused was not arrested at the crime scene. It is pertinent that accused was identified by the complainant Ct. Subash as Seema. Interestingly, none forms the part of prosecution witness. Furthermore, accused Seema, was arrested on 13.04.2017 after recovery of liquor. Again no public person was invited to be witness of the arrest.
State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.8/1414. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery. Infact, in the rukka it has been stated that police officials did ask certain public persons to join the proceedings however they refused citing just reasons. Further, PW3 stated that no public witness agreed to give statement. However, both PW1 and PW2 stated during crossexamination, that none was present at the spot or be witness of the arrest. Further, there is nothing on record to show that PW3 had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation, rather they have admitted that no one was called to be part of raiding party or arrest. Thus, the prosecution has failed to prove that any serious effort was made by PW1 to PW4 to join public witnesses in the proceedings. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should 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 a case of 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 State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.9/14 that apart, at least the I.O. 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."
In a case law reported as Anoop Joshi 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 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 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''.
15. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. 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.
16. The present case rests entirely on the alleged recovery of case property, i.e., illicit liquor, from the possession of the accused by police official i.e., PW2 and PW3, who was 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 State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.10/14 station for the 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 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.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
17. Since public persons were not joined in the investigation, the departure entry of the aforesaid police official i.e., PW2 and PW3 who was on patrolling duty and time when apprehended the accused with case property, becomes a vital piece of evidence. However, no such daily diary entry regarding departure of PW1 to PW3 are present on record.
18. Further, as per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the PW3 HC Babinder with the seal of BS and after use, the seal was handed over to PW2 Ct. Subash. However, no handing over memo regarding the same was prepared. Further, the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
19. Moving ahead, PW2 and PW3 had deposed that seizure memo Ex. PW2/A was prepared before rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo Ex. PW2/A. Accordingly, it follows that the number of the FIR would have come to the knowledge of the State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.11/14 PW3 only after a copy of the FIR was brought to the spot by PW2. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW2/A bear the FIR number and case details. The same indicates that FIR number was mentioned on the said document while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127 wherein it was observed in as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
20. Furthermore, in paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the SubInspector Narender Kumar Tyagi (PW7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.12/14 served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex.PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents 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 contraband in the manner alleged by the prosecution."
21. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo Ex. PW2/A. The same leads to inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
22. The facts that no independent witness was cited or examined, daily diary entry regarding departure of PW1 to PW3 have not been proved, possibility of misuse of seal cannot been ruled out, the appearance of FIR number and case particulars on the seizure memo has not been explained and contradictions in the testimony of prosecution witnesses, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
23. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.13/14 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 beyond reasonable doubt 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.
24. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against her in the present case. The accused Seema is hereby acquitted of the offence punishable under Section 33(1) of the Delhi Excise Act.
25. Case property be confiscated to the State and disposed off as per law if not already done.
26. Bail bond / surety bond in sum of Rs. 10,000/ in terms of section 437 A Cr. P.C furnished and accepted.
27. File be consigned to record room.
Note: This judgment contains 14 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.
Announced in the open Court
on 28th June 2022 (Animesh Bhaskar Mani Tripathi)
MM03/KKD/SHD/Delhi
State Vs. SEEMA FIR No. 230/2017 PS. NAND NAGRI Page No.14/14