Delhi District Court
State vs . on 24 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 10586/2022
Unique Case ID No. -: DLSW020485142022
FIR No. -: 160/2021
Police Station -: BHD Nagar
Section(s) -: 33 Delhi Excise Act,
2009
In the matter of -
STATE
VS.
GEETA DEVI
W/o Jagdish Chander,
R/o H. no. 310A, Indira Market,
Najafgarh, New Delhi.
.... Accused
1. Name of Complainant : Ct. Ramkhiladi
2. Name of Accused : Geeta Devi
Offence complained of or
3. : 33 Delhi Excise Act, 2009
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 15.04.2021
offence
6. Date of Filing of case : 24.08.2022
7. Date of Reserving Order : 10.08.2023
8. Date of Pronouncement : 24.08.2023
9. Final Order : Acquitted
Argued by -: Ld. APP for the State.
Ld. counsel for the accused.
Cr. Case No. 10586/2022 State vs. Geeta Devi Page 1 of 10
BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX -
1. Pithily, it is the case of the prosecution that on 15.04.2021, at about 07.10 PM, at Indra Market Najafgarh, at H. No. 310A, within the jurisdiction of PS BHD Nagar, accused was found in possession of illicit liquor i.e. 110 nips each (180 ml each) of Asli Santra Masaledar Desi Sharab for sale in Haryana only, without any license or permit for the same. As such, it is alleged that she committed an offence punishable under Section 33 of the Delhi Excise Act, 2009 (hereinafter, "Excise Act").
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of subject FIR, the investigating officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against accused was filed. After taking cognizance of the offence, accused was summoned to face trial for the abovesaid offence.
3. On her appearance, a copy of charge-sheet was supplied to her in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter,"CrPC"). On finding a prima facie case against the accused, charge under Section 33 Excise Act was framed against her. She pleaded not guilty to the charge, and claimed trial.
PROSECUTION EVIDENCE -
4. The matter was then fixed for recording of PE. In Cr. Case No. 10586/2022 State vs. Geeta Devi Page 2 of 10 support of its version, prosecution has examined a total of five witnesses-
Witness Name Nature of testimony
PW-1 Ct. Jitender/ He deposed that he was handed over the
Formal case property on 14.09.2021, and he
Witness deposited the same in Excise
Laboratory, on the same day, vide RC
no. 203/21/21 Ex. PW1/A. He deposed
that during the time property was in his possession, no tampering was done with the same. He was cross examined by accused, and discharged.
PW-2 W/Ct. Pooja She supported the case of prosecution.
She deposed that she was on patrolling duty alongwith Ct. Ramkhiladi on the day of incident, and apprehended the accused in possession of illicit liquor. She deposed about apprehension of accused, and seizure of case property by the IO, vide seizure memo Ex PW2/C. She identified the case property, Ex P1. She was duly cross examined and discharged.
PW-3 HC He supported the case of prosecution.
Ramkhiladi/ He deposed that he was on patrolling Recovery duty alongwith W/HC Pooja on the day witness/ of incident and apprehended the complainant accused in possession of illicit liquor.
He further deposed that the said information was then transmitted to PS BHD Nagar and IO HC Deepak reached at the spot. Thereafter, IO checked the plastic katta and the same found containing illicit liquor. He proved on record seizure of case property Ex.
PW2/C, his statement Ex. PW3/A, site plan Ex. PW2/A, disclosure statement of accused Ex. PW2/B. He identified Cr. Case No. 10586/2022 State vs. Geeta Devi Page 3 of 10 the sample case property, Ex P1. He was duly cross examined and discharged.
PW-4 HC Deepak/ He supported the case of prosecution.
Investigating He deposed that on receipt of DD no. Officer 86A he went to the spot where he found that HC Ramkhiladi / PW3 alongwith W/Ct. Pooja / PW2 had apprehended the accused alongwith illicit liquor. He testified about the codal formalities regarding arrest of accused. He further deposed about seizure of case property, vide seizure memo Ex PW2/C. He identified the case property, Ex P1. He also proved on record form M-29 Ex.PW4/A, tehrir Ex. PW4/B and notice under Section 41A CrPC Ex. PW4/C. He was duly cross examined and discharged.
PW-5 ASI He testified that on 31.12.2021 present Bidyanand case was marked to him. He further deposed that he procured the excise result and filed the challan in court. He was not cross examined despite opportunity.
5. The remaining documents i.e. FIR no. 160/2021 PS Chhawla Ex. A1, Certificate under Section 65B of Indian Evidence Act, Ex. A2, DD No. 0013A dated 15.04.2021 Ex. A3 and Excise report dated 28.10.2021 Ex. A4 were put to the accused, and their genuineness was admitted by her under Section 294 CrPC. Accordingly, the remaining witnesses were dropped from the list of prosecution witnesses. PE was closed thereafter.
Cr. Case No. 10586/2022 State vs. Geeta Devi Page 4 of 106. Thereafter, in order to accord an opportunity to the accused to personally explain the incriminating circumstances appearing in evidence against her, the statement of accused was recorded without oath under Section 313/281 CrPC. She submitted that she is innocent and has been falsely implicated in the present case. She stated that the recovery was planted on her. To a specific query, she stated that she does not wish to lead defence evidence in the affirmative.
7. The matter was then fixed for final arguments. Final arguments heard. Record perused. Considered.
8. To prove the charge under Section 33 Delhi Excise Act against the accused, prosecution had to prove:-
(i) accused was found in possession of case property.
(ii) The case property is illicit liquor of a description, the possession of which without any permit or license contravened the provision of law.
9. Record reveals that several gaps and loopholes have been pointed out by the accused in the case of prosecution, leading this Court to the conclusion that recovery of case property from the accused was not proved by the prosecution as per law.
10. It is the case of the prosecution that the alleged recovery of the case property was made from the accused from a residential area. The area of the alleged recovery, therefore, was Cr. Case No. 10586/2022 State vs. Geeta Devi Page 5 of 10 presumably crowded. Despite this, no public witnesses were joined in the prosecution. The witnesses of the prosecution, PW2, PW3 and PW4 deposed on oath that despite availability of independent public witnesses, no such witnesses were joined in the investigation. They further deposed that a request was made to public witnesses to join the investigation, but they refused, as a result of which no independent witnesses were joined in the investigation. Admittedly, however, IO did not serve any notice upon these witnesses consequent to this refusal.
11. Now, it is true that non-joining of independent witnesses cannot be a sole ground to discard the entire prosecution story, in view of the law laid down by the Hon'ble Supreme Court of India in Appabhai versus State of Gujarat AIR 1988 SC 696, and evidence in each case has to be weighed in light of the peculiar factual matrix of the same. Non-joining of public witnesses, despite their easy availability, reflects lack of genuine efforts on the part of the prosecution, denting its case. The IO could have easily served notice in writing to the witnesses, to make them join the investigation. But not to be. Where the IO has failed to make genuine efforts to join public witnesses, veracity of the case of prosecution becomes doubtful. At this juncture, this court seeks guidance from the law laid down by the Hon'ble High Court of Delhi in Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC):-
"18.It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have Cr. Case No. 10586/2022 State vs. Geeta Devi Page 6 of 10 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 shop-keepers 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".
12. Further, the present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by police officials namely HC Ramkhiladi alongwith W/Ct. Pooja, who were on patrolling duty at the relevant time and place, as per the prosecution story. They are stated to be chance witnesses at the spot, but their presence thereat could not be proved by prosecution beyond reasonable doubt. No DD entry showing their departure from the PS concerned was proved by the witnesses. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that 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 shall be entered vide a Cr. Case No. 10586/2022 State vs. Geeta Devi Page 7 of 10 separate entry and 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. In absence of the departure and arrival entry of the police officials in the aforesaid manner, their presence at the spot cannot be believed. Reference can be placed upon Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
13. It is also evident from the record that prosecution has made no efforts whatsoever to dig out the source from which the illicit liquor was procured by the accused. Lack of any efforts on part of the police to interrogate the accused on these lines is also reflective of a shoddy investigation, benefit of which, must accrue to the accused.
14. The case case property was produced before the court in a sealed Katta (sack) bearing the seal of 'DK'. But the said bottles of illicit liquor were not bearing any specific marks to show that the said case property was recovered from the possession of the accused on the date of incident. The particulars Cr. Case No. 10586/2022 State vs. Geeta Devi Page 8 of 10 of the case property mentioned on the katta can easily be written at any point of time and possibility of tampering can not be ruled out, in view of the fact that seal with which katta was sealed remained in possession of police officials posted in the same police station.
15. Recovery of alleged liquor from accused is further fraught with doubt in view of the fact that the seal with which the sample property was sealed was not handed over to any independent person, and remained in possession of police officials of the same PS. As such, possibility of tampering with seal on the same cannot be ruled out.
16. Further, while the recovery was made on 15.04.2021, the samples were sent for testing over five months later, on 14.09.2021. During the intervening period, these samples also remained at the PS, and the possibility that they were tampered with also can not be ruled out.
17. In Chandra Wati v. State (Delhi) : 1991(44) DLT 31 : 1991 JCC 508 it was also held by Hon'ble Delhi High Court that the prosecution has to bring on record the link evidence to show that the sample of the recovery alleged to have been made by the police witness from the accused was analysed in the CFSL without it being tampered with by any one, failure of which is a ground in favour of the accused.
18. The fact that seizure memo of the case property Ex PW2/C mentions the FIR number, even though the seizure was Cr. Case No. 10586/2022 State vs. Geeta Devi Page 9 of 10 made prior in time as per the case of prosecution, further dents the case of prosecution. No cogent explanation was given by the IO/PW4 to explain this discrepancy.
19. The fact that the IO or any other recovery witness did not take any photographs of the case property at the time of recovery, despite easy availability of camera-phones, further casts a shadow of doubt on the case of prosecution.
20. When considered cumulatively, these factors show that a lot of gaps and crevices exist in its version, and the benefit of this accrues to the accused Geeta Devi W/o Jagdish Chander, who thus stands acquitted of the offence punishable under section 33 Delhi Excise Act, 2009.
Pronounced in open court on in presence of accused person. This judgment contains 10 pages and each page has been signed by the undersigned. Digitally signed MEDHA by MEDHA ARYA ARYA Date: 2023.08.24 16:31:18 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 24.08.2023.
Cr. Case No. 10586/2022 State vs. Geeta Devi Page 10 of 10