Delhi District Court
State vs . Raju on 28 April, 2018
FIR NO.42/17
PS BHD Nagar
U/s 33.58 DELHI EXCISE ACT
State Vs. Raju
IN THE COURT OF MS MANU GOEL KHARB: MM:
DWARKA DISTRICT COURT: DELHI.
State Vs. Raju
FIR No. 42/17
U/s. 33.58(D) Delhi Excise Act
PS BHD Nagar.
Date of Institution of case:21.07.2017
Date of Judgment reserved:12.04.2018
Date on which Judgment pronounced:28.04.2018
JUDGMENT
Unique ID no. : 6302/2017
Date of Commission of offence : 13.03.2017
Name of the complainant : HC Jitender Singh, No. 824/PCR/
Outer Zone, PCR, New Delhi.
Name and address of the : Raju S/o Sh. Lala Prashad, R/o
accused persons RZ99, Shiv Enclave, Vikash
Nagar, Uttam Nagar, New Delhi.
Offence complained of : Section 33.58 Delhi Excise Act
Plea of accused : Not guilty
Date of order : 28.04.2018
Final Order : ACQUITTED
BRIEF REASONS FOR DECISION:
1.The case of prosecution in brief is that on 13.03.2017, at about 900 a.m., near Jharoda Border, Bahadurgarh Delhi road, within the Page 1 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju jurisdiction of PS BHD Nagar, accused Raju was driving a Santro car bearing no. DL 8C J 5690 and 8 Gatta Petis of illcit liquor i.e. 300 quarter bottles of Asli Santra Masaledar Deshi Sharab, 240 quarter bottles of Episode Whisky and 288 quarter bottles of Impact Whisky was found from his possession from the dicky of the car, without any permit or license, in contravention of the provisions of Delhi Excise Act. Therefore, the accused Raju has been charged with the offence punishable under Section 33 Delhi Excise Act.
2. After investigation, charge sheet was filed against accused Raju on 21.07.2017 under Section 33/58 (D) of Delhi Excise Act. The copy of charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
3. After hearing arguments, charge U/s. 33/58(D) of Delhi Excise Act, was framed against the accused Raju on 07.10.2017 to which accused pleaded not guilty and claimed trial.
4. In support of its version, the prosecution has examined four witnesses in all.
5. PW1 HC Jitender deposed that on 13.03.2017, he alongwith HC Ravi Pal were posted at PCR Coral43, at Jharoda Border, at about 9.00 Page 2 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju a.m, one Santro Car bearing no. DL8CJ5690 went in front of them from Bahadurgarh to Jharoda village side and they chased it. On seeing them, the car driver increased the speed of the car and turned the car from Jharoda Nala to Sidhipur Loha village. Thereafter, the car lost its balance and struck towards the wall of the nala and toppled over 23 times and thereafter stopped at the Nala with the help of wall. The car was completely damaged. On search, illicit liquor in heavy quantity was found in the car and many quarter bottles were damaged due to accident of car. Thereafter, witness gave message to Control room and after some time, IO ASI Ramesh Kumar came on the spot alongwith constable Suresh. There were eight gatta patties of 50 quarter bottles each with the label of Asli Santra Masaladar Desi Sharab, 300 other quarter bottles of Asli Santra Malsadar Desi Sharab, 240 quarter bottles of Episode whisky and 288 quarter bottles of impact whisky. IO took the illicit liquor in his possession and recorded the statement of witness as Ex. PW1/A. IO thereafter prepared the rukka and handed over the same to constable Suresh for registration of FIR. Constable Suresh went to P.S, and got the FIR registered and came back to the spot after sometime alongwith copy of FIR and original rukka. IO prepared the site plan Mark A and seized the illicit liquor vide seizure memo Ex PW1/B. IO put the eight gatta patties in four gunni bags and 300 quarter bottles in two gunni bags, 288 quarter bottles were put in two gunni bags and 240 quarter bottles in two gunni bags. IO took out one sample each from the above illicit liquor. IO seized Page 3 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju the vehicle Santro car bearing no. DL8CJ5690 vide seizure memo Ex PW1/C. IO arrested the accused and conducted his personal search vide memo Ex PW1/D and Ex PW1/E respectively and recorded the disclosure statement of accused. IO filled the form M29 at the spot. IO took the vehicle with the help of crane to P.S and deposited the same in malkhana. IO recorded the statement of all the witnesses. PW1 correctly identified the case property i.e. two photographs of the vehicle as Ex P1(colly.) and the illicit liquor as Ex. P2(colly.) In his crossexamination by the defence counsel, witness deposed that IO recorded his statement only once at around 10.0011.00 a.m. Witness is unable to tell if IO recorded the statement of any other witness or the number of documents prepared by IO during 10.0011.00 a.m. Witness deposed that he left the spot at about 5.006.00 p.m. and went to his base alongwith HC Ravi, driver and constable Ravi (gunman) after leaving the spot. He deposed that he informed the Control room at about 9.00 a.m. that alleged Santro car is carrying illicit liquor. All the documents and memos were prepared by the IO after the registration of FIR. Sample bottles were taken out from the case property before tehrir was sent to P.S. The case property and the sample bottles were sealed by the IO before tehrir was sent to P.S. The photographs Ex. P1(colly.) were taken by IO from his mobile phone at the spot in presence of the witness. Witness is unable to tell how many quarter bottles got damaged. There are no shops and residential houses near the spot and no public persons Page 4 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju gathered on the spot but passengers and passersby were passing through the road.
6. PW2 HC Ravi Pal deposed that on 13.03.2017 he was on duty alongwith PW1 HC Jitender Singh at PCR Coral43 which was situated at its base Jharoda Border. His testimonyis similar and consisitent to the testimony of PW1.
In his crossexamination by defence counsel, he deposed that IO recorded his statement only once at around 10.0011.00 a.m. Witness is unable to tell if IO recorded the statement of any other witness or the number of documents prepared by IO at 11:00 a.m. Witness deposed that he left the spot with HC Jitender at about 4.005.00 p.m. and went to his base alongwith HC Jitender, driver and constable Ravi (gunman) after leaving the spot. All the documents and memos were prepared by the IO after the registration of FIR. Sample bottles were taken out from the case property before tehrir was sent to P.S. The case property and the sample bottles were sealed by the IO before tehrir was sent to P.S. The photographs Ex. P1(colly.) were taken by IO from his mobile phone at the spot in presence of the witness and photograph was also called. Witness is unable to tell how many quarter bottles got damaged. There are no shops and residential houses near the spot and no public persons gathered on the spot but passengers and passersby were passing through the road. IO had asked public persons to join the investigation. All the documents and Page 5 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju memos were prepared by the IO on 13.03.2017. Witness had given the seal to Duty officer on 13.03.2017 in the police station before going to the base. No seal handing or taking over memo was prepared in that regard
7. PW3 ASI Ramesh kumar deposed that on 13.03.2017, he was on emergency duty at PS BHD Nagar and on receiving DD no. 12A, he alongwith Ct. Suresh reached the spot i.e. Jharoda Nala and found PCR Vehicle Coral 43 and PCR Staff alongwith one vehicle bearing no. DL8CJ 5690 in damaged condition. The said vehicle was filled with illicit liquor and PCR staff had caught the accused Raju. Many quarter bottles of liquor were in broken condition as the offending vehicle had toppled over many times. The windows/doors of the said vehicle were not opening due to the accident and so he called the crane. Thereafter, illicit liquor was taken out from the vehicle and counted which came out to be 8 gatta paties of 50 quarter bottles each with the label asli santra masaledar desi sharab. There were 300 other quarter bottles of the same brand of which gatta paties were damaged, 240 quarter bottles of episode whisky and 288 quarter bottles of impact whisky. Witness seized the same vide Ex. PW1/B. He recorded the statement of HC Jitender Singh as Ex. PW1/A and prepared the site plan Ex. PW3/C. He prepared the Rukka and send the same through Ct. Suresh for registration of FIR. Ct. Suresh came back to the spot alongwith original FIR and Rukka. Thereafter, witness seized the car vide seizure memo already Ex. PW1/C and recorded the disclosure Page 6 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju statement of accused as Ex. PW3/A. He filled the form M 29 on the spot. Witness arrested the accused and conducted his personal search vide Ex. PW1/D and PW1/E. Thereafter, he obtained the ownership of the said vehicle from MLO, Transport Authority, Rohini vide letter Ex. PW4/B. He further deposed that the car was brought to the PS by loading the same in a truck by crane. Witness sent the sample of illicit liquor to lab for examination, completed the documents and prepared the chargesheet after recording the statements of all the witnesses. Witness correctly identified the photographs of the vehicle as Ex. P1(colly) and the illicit liquor as Ex. P2 (Colly).
In his cross examination, he deposed that they reached at the spot at about 09.20 am on his personal bike and thereafter, left the spot after the completion of spot proceeding at about 06.00 pm and came to the PS alone on his personal bike. Witness deposed that he called a QRT vehicle from the police station at about 05.0005.15 pm and Ct. Suresh and accused went to the PS in that QRT. HC Jitender and HC Ravi left the spot after preparation of tehrir at about 02.00 pm and thereafter, again came to the spot at 05.00 pm as witness had called both of them again to the spot at 05.00 pm, to sign the arrest memo and other documents. There are no residential houses and shops at the spot and public persons have gathered at the spot and nobody joined the investigation. No notice was given to any public person who refused to join in the investigation. Witness had called the truck by sending the PCR staff officials to bring the truck to the Page 7 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju spot after 12.00 noon and the crane was called by the witness through telephone and the crane reached at the spot at about 11.0012.00 noon from the Tikri Border. One or two public persons and the police staff had taken out case property from the alleged Santro Car at 12.00 noon at the spot and same was put again in the alleged Santro Car at around 03.00 pm. Witness did not seize the broken bottles. He arranged 20 plastic kattas by calling to the duty officer at the PS and same were delivered by QRT Vehicle at same time. Ct. Suresh took the Rukka at about 02.30 pm on the bike of the witnss and came back to the spot at about after 04.00 pm on the said motorcycle alone. Only seizure memos were prepared before tehrir was sent to PS and rest of the documents were prepared in his own handwriting. The case property was put into ten plastic kattas. Witness is unable to remember the DD no. vide which he had come to the PS.
8. PW4 Ct. Suresh deposed that on 13.03.2017 he accompanied ASI Ramesh during the investigation of the case. His deposition was on similar lines to the testimony of PW3/ IO ASI Ramesh. In addition, he deposed that the IO took one sample bottle from each of the gata petis i.e. total 8 samples from the gata petis, two samples from 300 quarter bottles, one sample from 240 quarter bottles of Episode whisky and one sample from 248 quarter bottles. He further deposed that the mouth of the bottles were covered with white cloth and sealed with seal of KK. Remaining bottles were seized vide seizure memo already Ex. PW1/B. IO also filled Page 8 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju Form M29 on the spot. Witness correctly identified the case property i.e. illicit liquor and the offending car.
In his crossexamination by defence counsel, he deposed that they came to the spot in a four wheeler vehicle but does not remember its make and number. Till the time, witness remained at the spot, the liquor bottles were not taken out from the Santro car. There are no residential houses or shops at the spot but there is open area on the one side and a nala on the other side.
9. Thereafter, accused Raju admitted the genuineness and preparation of FIR 42/17, PS BHD Nagar u/s 33.58 Delhi Excise Act and DD no. 12 A dt. 13.03.2017 and hence, corresponding witnesses were not called for proving these documents. Thereafter, prosecution evidence was closed vide order dt. 05.02.2018.
10. After conclusion of prosecution evidence, statement of accused Raju under Section 313 CrPC r/w 281 Cr.P.C. was recorded on 05.03.2018 where all the incriminating evidence coming on record was put to the accused to which he submitted that he is innocent and has been falsely implicated in the present case. At first, the accused chose to lead defence evidence but later on refused to lead the same. As such, defence evidence was closed and the matter was listed for final arguments.
Page 9 of 15 FIR NO.42/17PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju
11. I have heard the final arguments advanced by both the parties and record perused.
12. As per prosecution story, the PW1 and PW2 were on PCR duty at PCR Coral43 at its base at Jharoda border and at about 09:00 a.m., the car bearing no. DL 8C J 5690 passed in front of them from Bahadurgarh to Jharoda Village side and they chased the car on suspicion. On Jharoda to Sidhipur Loha road, the car accidentally hit with the wall of nala and toppled over 23 times and stopped near the wall. Thereafter, both PW1 and PW2 apprehended the accused Raju and recovered illicit liquor from his possession without any permit or license.
As per prosecution story, the Liquor was recovered from the possession of accused at about 09:00 a.m. However, in spite of it IO had failed to join any public person in the investigation of the present case. In the present case, deposition of PWs show that IO requested the public person to join the investigation but they refused. In these circumstances, like the present one, if public person had refused to assist the member of police party, they could have served the said public witness with a notice in writing to join police proceedings but perusal of the record shows that nothing sort of this was done in the present case.
In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under : ".........18. It is repeatedly laid down by this Court in such cases it Page 10 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju 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 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."
13. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under : "........3. I have heard the learned counsel the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them Page 11 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju and the petitioner."
4. It is well settled principle of the 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 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 IO must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
Hence, it creates doubt in the story of prosecution.
Page 12 of 15 FIR NO.42/17PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju
14. It is also pertinent to mention that PW1 and PW2 were on PCR duty at PCR Coral43 on 13.03.2017 but no such DD entry has been placed on record during evidence and it further reflects that both PW1 and PW2 were not on PCR duty on that day at the relevant time. As per Chapter 22 Rule 49 of Punjab Police Rules, 1934 :"22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered. : ..........(c) The hour of arrival and the 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."
15. It is also noteworthy to mention that PW3 ASI Ramesh Kumar is the IO of the case, however he has neither deposed regarding the number of bottles taken out by him as sample bottles out of the entire quantity of illicit liquor seized by him nor about the sealing of the sample bottles. Thereafter, the accompanying witness i.e. PW4 Ct. Suresh deposed that Page 13 of 15 FIR NO.42/17 PS BHD Nagar U/s 33.58 DELHI EXCISE ACT State Vs. Raju total 12 (8+2+1+1) sample bottles were taken out and sealed with the seal of KK whereas as per the seizure memo Ex. PW1/B and the road certificate, total 14 samples were taken and all were sealed with the seal of RK. Furthermore, prosecution has also not proved form M29 in the present case. It has only come in the evidence of PW2 that he gave the seal to the duty officer on 13.03.2017, however, it has not come in the evidence of any of the witnesses as to whom the seal was handed over after use. Assuming that PW3 handed over the seal to Pw2 Ct. Ravi, but both are police officials and were posted in the same police station on the relevant date and time. Seal was not handed over to any independent witness. Further, no handing over memo of seal is filed on judicial record. In such a situation the possibility of tampering with the case property cannot be ruled out the same being handed over in the absence of any independent witness, the possibility of tampering with the seal and the case property cannot be discarded outrightly.
16. Prosecution has also not examined the MHCM in the present case to prove as to who deposited the case property in the Malkhana, what were the particulars of the case property, whether the same was received in sealed condition. It further remains unproved whether the case property was tampered or not as MHCM was the only person who could have deposed that till the time the case property remained in his custody, the same was safe and remained untampered.
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17. It is also a matter of record that seizure memo Ex. PW1/B was prepared prior to sending of rukka and registration of FIR and it is surprising to note that the seizure memo contains the full particulars of the FIR which has remained unexplained. No explanation has come from the prosecution as to how the FIR Number surfaced on those documents which were prepared prior to the registration of the case. This fact casts a doubt upon the story of prosecution because if the said document was prepared prior to the registration of the present case, then how the FIR Number as well as other particulars of the present case surfaced on the said document. At this stage, reference can also be made of a case titled as Pawan Kumar vs. Delhi Admn. 1987 CC Cases585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR Number on recovery memo etc. which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
18. In view of the above said discussion, I am of the considered view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Raju stands acquitted from the charges u/s 33.58 Delhi Excise Act.
Announced in open court th on 28 of April 2018. (Manu Goel Kharb) Metropolitan Magistrate 07, Dwarka Courts / New Delhi.
Digitally signed MANU by Page
MANU 15 of 15
GOEL KHARB
GOEL Date:
2018.05.01
KHARB 13:02:45
+0530