Delhi District Court
State vs Naina on 17 April, 2023
IN THE COURT OF MS. DEEKSHA SETHI, MM-03, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-016520-2019 FIR No. : 100/2018 U/s : 33 Delhi Excise Act P.S. : Bindapur State versus Naina a) ID. No. of the Case : 8968/2019 b) Name & address of the : Ct. Manoj Kumar Complainant No. 986/DW, PIS No. 28108271 PS Bindapur, Dwarka District, New Delhi. c) Name & address of : Smt. Naina accused W/o Sh. Praveen R/o H.No. V-21, Vishu Vihar, Uttam Nagar, New Delhi d) Date of Commission of : 31.01.2018 offence e) Offence complained of : 33 (1) Delhi Excise Act f) Plea of the accused : Pleaded not guilty. State v/s Naina Page 1 of 18 Cr. Case No. 8968/2019 g) Ld. APP for the State : Sh. Manish Kaushik h) Final Order : Acquitted. i) Date of Institution : 04.04.2019 j) Judgment Pronounced on : 17.04.2023 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 31.01.2018, Ct. Manoj (hereinafter referred to as the 'complainant') was on patrolling duty in beat no. 4 along with Ct. Annu Yadav and at about 12:30 AM, when they had reached at the Main Road, Vishu Vihar, Uttam Nagar, Bindapur, they saw that one lady namely Naina (hereinafter referred to as 'accused') was carrying one white colored plastic katta over her head and upon seeing them, the accused tried to hide herself. The complainant apprehended the accused with the help of Ct. Annu Yadav. The complainant asked about the contents of the katta from the accused, to which she replied that it contains some household articles. When Ct. Manoj checked the katta, it was found to be containing quarter bottles of illicit liquor. Thereafter, the complainant informed about the said incident at the police station and police official from PS Bindapur reached at the spot. Thereafter, an FIR bearing no. 100/2018 u/s 33 Delhi Excise Act was registered at PS Bindapur. Investigation of the case was thereafter handed over to Investigating Officer HC Kailash Parsad.
State v/s Naina Page 2 of 18 Cr. Case No. 8968/2019Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Naina. After taking cognizance of the offence, the accused was summoned to face trial.
3. On her appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against her, to which she had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined the following witnesses:
(i) PW-1 Ct. Manoj has deposed that on 31.01.2018, he alongwith Ct. Annu Yadav were on patrolling duty at beat no. 4, Bindapur, New Delhi. During patrolling, when they reached at main road, Vishu Vihar, Bindapur, New Delhi at about 12:30 AM, accused was seeing carrying a plastic katta on her head. He and Ct. Annu Yadav apprehended accused Naina and upon checking, the plastic katta was found to be containing quarter bottles of illicit liquor. They informed the duty officer PS Bindapur and HC Kailash alongwith W/Ct Khela reached at the spot.
IO tried to join some public persons for investigation but all of them left the spot after State v/s Naina Page 3 of 18 Cr. Case No. 8968/2019 assigning their personal reasons. Thereafter, they checked the plastic katta and it was found to be containing 60 quarter bottles of 'Sant Ram Masaledar desi sharab for sale in Haryana only'. One quarter bottle was taken out as sample and it was sealed with the seal of 'KP'. The remaining 59 quarter bottles were placed in plastic katta and sealed with the seal of KP. IO HC Kailash Prasad prepared form M-29. The IO handed over seal after used to him. The case property was taken into police possession vide seizure memo ExPW1/A. The IO recorded his (PW1) statement (ExPW1/B) and prepared the rukka upon the same and got the FIR registered through Ct. Annu Yadav. Accused was arrested vide memo ExPW1/C & her disclosure statement ExPW1/D was recorded. The seal was handed over to him vide memo ExPW1/E. Thereafter, the accused as well as the case property were brought to PS Bindapur. The witness stated that he can identify the case property if shown to him. The disposal order of the case property was exhibited as ExP-1 (colly.). The witness identified the accused in court and he was thoroughly cross examined by ld. Counsel for the accused.
(ii) PW-2 Ct. Annu Yadav has deposed that he was posted at PS Bindapur as Ct. On 31.01.2018, he alongwith Ct. Manoj Kumar were on patrolling duty at beat no. 4. During patrolling, when they reached State v/s Naina Page 4 of 18 Cr. Case No. 8968/2019 at main road, Vishu Vihar, Uttam Nagar, New Delhi at about 12:30 PM, accused Naina was coming from the side of A Block, Main road, DDA Flats and she was carrying a plastic katta on her head. Upon seeing them, the accused tried to hide herself. They became suspicious and stopped the accused and asked her about the contents of the plastic katta. The accused replied that the katta was containing household articles. Upon checking, the plastic katta was found to be containing quarter bottles of illicit liquor. He informed the duty officer PS Bindapur through his mobile phone. HC Kailash alongwith L/Ct Khela reached at the spot. They produced the accused as well as the case property before the IO. The IO recorded the statement of Ct. Manoj Kumar. The IO checked the plastic katta and it was found to be containing 60 quarter bottles (180 ml each) of 'Raseela Santra Masaledar desi sharab for sale in Haryana only'. One quarter bottle was taken out as sample and the remaining 59 quarter bottles as well as the sample was sealed with the seal of 'KP' and was seized vide memo ExPW1/A. IO prepared form M-29 at the spot. The IO prepared tehrir at the spot and after endorsement, he handed over the same to him at about 2:10 PM for the purpose of registration of FIR. After getting the FIR registered, he came back at the spot with the original tehrir and computerised copy of the FIR and handed over the State v/s Naina Page 5 of 18 Cr. Case No. 8968/2019 same to the IO. Disclosure statement of accused (ExPW1/D) was recorded. IO had handed over the seal after use to Ct. Manoj. With the help of W/Ct. Khela as well as him (PW2), the IO arrested the accused vide memo ExPW1/C & personal search of the accused was conducted vide memo ExPW2/A. IO recorded his statement u/s 161 CrPC. The case property was deposited at the malkhana of PS. The witness identified the accused in court. The Destruction order bearing no. F.Conf./2018/ 5790-01 dated 02.11.2018 issued by Assistant Commissioner (Excise) of case property was exhibited as Ex. P-1. The witness had correctly identified the sample of case property and the same was exhibited as Ex. P-
2. This witness was thoroughly cross-examined by Ld. Defence counsel.
(iii) PW-3 W/HC Khela Bai has deposed that she was posted at PS Bindapur as W/Ct. On 31.01.2018, she had joined the investigation in the present case. On receiving DD no. 34A, she alongwith HC Kailash Rai had reached at the spot ie Main Road, Vishu Vihar, Uttam nagar, new Delhi where they met Ct. Manoj Kumar and Ct. Annu Yadav. They handed over the custody of accused Naina alongwith the plastic katta to them. Upon counting, IO found 60 quarter bottles of 'Raseela Santra Masaledar desi sharab for sale in Haryana only'. One quarter bottle was taken out as a sample and remaining quarter State v/s Naina Page 6 of 18 Cr. Case No. 8968/2019 bottles were placed in the plastic katta. The plastic katta as well as the sample was sealed with the seal of 'KP' and the case property was seized vide ExPW1/A. The IO filled form M-29 at the spot and handed over the seal after use to Ct. Manoj vide memo ExPW1/E. The IO recorded statement of Ct. Manoj and prepared the tehrir. At about 2:10 PM, the IO handed over tehrir to Ct. Annu Yadav and asked him to get the FIR registered. Ct. Annu Yadav returned back at the spot after some time and handed over a computerised copy of FIR as well as the original tehrir to the IO. IO prepared the site plan at the instance of Ct. Manoj. IO had recorded the disclosure statement of accused Naina ExPW1/D. IO had arrested and conducted the personal search of the accused in the presence of her husband vide memos ExPW1/C & ExPW2/A. The IO recorded his statement u/s 161 CrPC and he (PW3) thereafter left the spot. The witness identified the accused in court. The Destruction order bearing no. F.Conf./2018/ 5790-01 dated 02.11.2018 issued by Assistant Commissioner (Excise) of case property was exhibited as Ex. P-1. The witness had correctly identified the sample of case property and the same was exhibited as Ex. P-2. This witness was thoroughly cross-examined by Ld. Defence counsel.
(iv) PW4 HC Raj Singh has deposed that on 31.01.2018, he was posted at PS Bindapur as MHC(M)(CP). On State v/s Naina Page 7 of 18 Cr. Case No. 8968/2019 the directions of IO HC Kailash, he had collected the case property and the samples, both sealed with the seal of 'KP' and deposited the same at the malkhana of the police station vide mud no. 1927/18. The relevant record was exhibited as Ex. P-1 (OSR_. On 26.03.2018, he had handed over the sealed samples vide RC No. 42/21/18 to Ct. Ajay Rana to get the same deposited at Excise Office, ITO. Ct. Ajay Rana handed over the receipt regarding the same to him and the relevant record was exhibited as Ex. P-2. The witness stated that he did not tamper with the exhibits during the time they were in his possession. This witness was not cross- examined by Ld. Counsel for the accused despite having been given an opportunity.
(v) PW-5 ASI Kailash Prasad has deposed that he was posted at PS Bindapur as HC. On 31.01.2018, on receipt of DD no. 34 A regarding recovery of illicit liquor, he alongwith W/Ct Khela reached at the spot i.e., Main road, Vishu Vihar, Uttam Nagar, new Delhi where he met with Ct. Manoj and Ct. Annu Yadav who produced the apprehended person namely Naina before them. He had asked 4-5 public persons to join the investigation but none of them agreed and left the spot after assigning their personal reasons and without disclosing their names and addresses. He checked the plastic katta and found 60 quarter bottles (180 ml each) of Raseela Santra State v/s Naina Page 8 of 18 Cr. Case No. 8968/2019 masaledar desi Sharab for sale in Haryana only. He took out one quarter bottle as sample and put the remaining quarter bottles in the plastic katta and tied its opening and sealed it as well as the sample with the seal of KP. The sample as well as the illicit liquor were seized vide seizure memo ExPW1/A. He handed over the seal after use to Ct. Manoj vide ExPW1/E. He filled form M-29 ExPW5/A at the spot. He recorded the statement of Ct. Manoj which was exhibited as ExPW1/B and prepared the rukka ExPW5/B. He handed over the tehrir to Ct. Annu for the purpose of getting the FIR registered. Accordingly, Ct. Annu returned back at the spot after some time and handed over a computerised copy of FIR as well as original tehrir to him. He prepared the site plan ExPW5/C at the instance of complainant. After interrogation, he recorded the statement of accused Naina (ExPW1/D) under supervision of W/Ct Khela. He arrested and conducted personal search of accused under supervision of W/Ct Khela vide memos ExPW1/C & ExPW2/A respectively. W/Ct. Anita took the accused to DDU Hospital for her medical examination. Thereafter, the case property was shifted in malkhana of PS Bindapur alongwith form M-29 and copy of seizure memo. He had sent the samples for result analysis to Excise Office through Ct. Ajay Rana. The witness identified the accused in State v/s Naina Page 9 of 18 Cr. Case No. 8968/2019 court. The Destruction order bearing no. F.Conf./2018/ 5790-01 dated 02.11.2018 issued by Assistant Commissioner (Excise) of case property was exhibited as Ex. P-1. The witness had correctly identified the sample of case property and the same was exhibited as Ex. P-2. This witness was thoroughly cross-examined by Ld. Defence counsel.
(vi) PW-6 HC Ajay Rana has deposed that on 26.03.2018, he was posted at PS Bindapur as a constable. He took the exhibits which were sealed with the seal of 'KP' vide RC No. 42/21/18 (Ex. P-
2) from the MHC(M), Bindapur and form M-29, copy of seizure memo and other relevant documents from MHC(M)(CP) of PS Bindapur and deposited the same at Excise Office, Vikas Bhawan, ITO for result analysis. He had handed over the receipt of depositing the samples with MHC(M) on the same day. The witness stated that the exhibits were not tampered with during the time they were in his possession. This witness was not cross-examined by Ld. Counsel for the accused despite having been given an opportunity.
5. Vide separate statement of the accused u/s 294 CrPC, she had admitted the genuineness of the FIR, DD No. 34A and DD No. 33A both dated 31.01.2018 and result analysis of Excise Control Laboratory. The above-said documents were exhibited as Ex. M-1, Ex. M-2, Ex. M-3 and Ex. A-1 State v/s Naina Page 10 of 18 Cr. Case No. 8968/2019 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC was recorded wherein all the incriminating evidence appearing against the accused was put to her, which she had denied to be correct and submitted that she was innocent and falsely implicated. The accused chose not to lead any evidence in his defence.
7. It is argued by Sh. Manish Kaushik, Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of 60 quarter bottles of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and she be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, she be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court State v/s Naina Page 11 of 18 Cr. Case No. 8968/2019
10.It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11.The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12.This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the examination of PW-1 Ct. Manoj (the complainant) and PW-5 ASI Kailash Prasad (the IO) reveals that the IO had asked four-five public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case. In a case titled as Nanak Chand State v/s Naina Page 12 of 18 Cr. Case No. 8968/2019 Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.'' (Emphasis supplied)
13.In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they 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 version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
14.Perusal of the record further reveals that there is a delay of about fifty-four days in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the State v/s Naina Page 13 of 18 Cr. Case No. 8968/2019 CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
15.In the instant case, alleged recovery was made on 31.01.2018 yet the samples were sent to the Excise Control Laboratory for examination on 26.03.2018, i.e., after about fifty-four days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
16.Perusal of the record further reveals that although PW-5 ASI Kailash Prasad (the IO) has stated in his cross- examination that he had prepared the seizure memo Ex. PW-1/A of the illicit liquor and Form-M29 Ex. PW-5/A first and rukka was thereafter prepared and sent to the police station for registration of FIR through PW-2 Ct. Annu Yadav. Thus, the inconsistencies in the statement of prosecution witnesses regarding the preparation of State v/s Naina Page 14 of 18 Cr. Case No. 8968/2019 documents prior to the registration of FIR create a dent on the prosecution version.
17.Further, if it is believed that seizure memo Ex. PW-1/A and Form-M29 Ex. PW-5/A have been prepared prior to the registration of FIR, it is surprising that the said documents bear the FIR number and it is thus, amazing since the number of the FIR could have come to the knowledge of IO (PW-5) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo and Form M-29 which came into existence before registration of the FIR. However, as discussed above, the seizure memo Ex. PW-1/A and Form-M29 Ex. PW-5/A bear the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"... 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. 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 State v/s Naina Page 15 of 18 Cr. Case No. 8968/2019 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."
(Emphasis supplied)
18.In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash 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 State v/s Naina Page 16 of 18 Cr. Case No. 8968/2019 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."
(Emphasis supplied)
19.Let this court now analyse the evidence appearing on record keeping in mind the above judgments of the Hon'ble High Court of Delhi. In the present case, PW-5 ASI Kailash Prasad (the IO), who had prepared the documents in question, has categorically deposed in his cross-examination that the IO had prepared the seizure memo Ex. PW-1/A as well as Form M-29 Ex. PW-5/A before the tehrir was prepared. In such a scenario, it remains unexplained as to how the FIR No. and its details figure on the top of the documents Ex. PW-1/A and Ex. PW-5/A. This creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said document was prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.
20.Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a katta which contained illicit liquor was recovered from the possession of the State v/s Naina Page 17 of 18 Cr. Case No. 8968/2019 accused. The accused Naina is, therefore, acquitted of the offence u/s 33 (1) Delhi Excise Act.
21.This judgment contains 18 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
22.Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
Digitally signed by Deeksha ANNOUNCED IN THE OPEN COURT Deeksha Sethi TODAY, i.e., ON 17.04.2023 Sethi Date:
2023.04.17 16:36:42 +0530 Deeksha Sethi Metropolitan Magistrate-03 South-West District/New Delhi 17.04.2023 State v/s Naina Page 18 of 18 Cr. Case No. 8968/2019