Delhi District Court
State vs Indra Devi on 25 October, 2024
CR Cases 4051/2018 State Vs. Indra Devi
IN THE COURT OF MR. SANKALP KAPOOR, JMFC-04,
SOUTH DISTRICT, SAKET COURTS, DELHI.
FIR No. : 108/2018
U/s : 33 The Delhi Excise Act, 2009
P.S. : Sangam Vihar
State Vs. Indra Devi
a) CNR No. of the Case : DLST02-026946-2018
b) Name & address of the : Ct. Bheem, Belt no.1379/SD,
complainant PS Sangam Vihar, South District, Delhi.
c) Name & address of : Smt.Indra Devi
Accused W/o Sh. Sita Ram,
R/o House no. D-2/13, Sangam Vihar, New
Delhi.
d) Date of Commission of : 29.03.2018
offence
e) Offence complained of : 33 The Delhi Excise Act, 2009
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
Date of Institution : 31.08.2018
Final arguments heard on : 30.09.2024
Judgment Pronounced on : 25.10.2024
Page No.1 of 17
CR Cases 4051/2018 State Vs. Indra Devi
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment the accused namely Indra Devi w/o Sh. Sita Ram is being acquitted of the offence punishable under Section 33 Delhi Excise Act, 2009 in this case FIR No. 108/2018 police station Sangam Vihar by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C') is that on 29.03.2018 at about 12:10 PM at House number D-2/13, Sangam Vihar, New Delhi within the jurisdiction of police station Sangam Vihar, the accused was apprehended by complainant/ Ct. Bheem upon suspicion while the complainant was on patrolling duty. As per the prosecution story the accused was apprehended in possession of 100 quarter bottles of illicit liquor without any permit or licence of National Capital Territory of Delhi in contravention of notification issued by Gov. of NCT of Delhi.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Cr.P.C. was filed and the accused was consequently summoned vide order dated 27.09.2018.
4. The copies of the police report and annexed documents were supplied to the Page No.2 of 17 CR Cases 4051/2018 State Vs. Indra Devi accused in due compliance of Section 207 Cr.P.C.
CHARGE
5. Vide order dated 01.02.2019 passed by Ld. Predecessor Judge of this Court, charge for the offence punishable under Section 33 of the Delhi Excise Act was framed against the accused to which she pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
6. Vide order dated 07.01.2020, in compliance of the provisions of Section 294 Cr.P.C., the accused was called upon to admit/deny the FIR No. 108/2018 Police Station Sangam Vihar, certificate under Section 65B of Indian Evidence Act, DD number 28A dated 29.03.2018, RC bearing number 127/21/18 dated 23.05.2018 and excise control laboratory report which she admitted and the same were accordingly exhibited as Ex. AD-1 to Ex. AD-3 respectively. In view of the admission made, the evidence of DO/W ASI Renu Sharma and Sh. Brijender Singh chemical examiner was dispensed with, being admitted by the accused.
EVIDENCE OF THE PROSECUTION
7. To prove its case, the prosecution in all examined two witnesses.
a. PW-1 HC Bheem deposed that on 29.03.2018 he was posted at PS Sangam Vihar as Constable and on that day he was on beat patrolling duty. He further Page No.3 of 17 CR Cases 4051/2018 State Vs. Indra Devi deposed that at about 12:10 PM when he reachen in front of D-2/30,Sangam Vihar, he saw a lady who was standing in front of the house and was carrying a white plastic sack on her shoulder and upon seeing him in police uniform she put down the said platic katta and fled away from the spot. He further deposed that thereafter he went and checked the contents of the plastic sack which was found containing illicit liquor. He further deposed that he knew the said lady from before as in he was in the beat of that are and the name of the woman was Indra Devi. He further deposed that he informed the said fact of recovery of illicit liquor to the duty officer at the PS. He further deposed that in sometime IO/ASI Krishan Kumar reached the spot and the plastic sack and the accused was handed over to the IO. He further deposed that upon checking the contents of the katta the IO found total 100 quarter bottles of illicit liquor of brand Charlie Apple Green for Sale in Haryana only. He further deposed that thereafter the IO took out one quarter bottle as sample from the said plastic katta and remaining quarter bottles were placed back in the said plastic katta and he sealed the sample bottles with cloth on neck and the remaining bottles in katta with the seal of 'SGV4SED'. He further deposed that the IO also filled form M-29. He further deposed that thereafter the IO prepared the seizure memo exhibited as Ex. PW- 1/A and thereafter the IO upon statement of PW-1 prepared the rukka upon his complaint and handed over the rukka to him only, for registration of FIR. He further deposed that thereafter he went to the PS and came back to the spot in sometime and handed over the copy of FIR and original rukka to the IO. He also deposed regarding preparation of site plan at his instance and stated that thereafter he searched everywhere for the accused but was not able to trace her.
Page No.4 of 17CR Cases 4051/2018 State Vs. Indra Devi He further deposed that he along-with the IO and the case property returned to the PS. PW-1 further deposed that on 23.05.2018 on instructions of the IO he took the samples of the case property and deposited the same at Excise Lab, ITO. The witness correctly identified the case property in the Court.
In his cross-examination by Ld. Defence Counsel PW-1 deposed that on the day of recovery he was on twenty four hours duty. He further deposed that the IO reached the spot at about 12:30 PM. He further deposed that he did not make any departure entry when he left the PS. He further deposed that the place of recovery was a public and residential place. He further deposed that IO also asked some people to join the investigation but all of them refused citing their personal reasons. He further deposed that no notice was served upon the said individuals. He further deposed that he did not remember the time when the IO handed over to him the rukka and when he returned to the spot. He further deposed that the distance between the spot and the PS is about 1 km. He further deposed that the IO had handed over the seal to him after use and he did not prepare the seal handling over memo at the spot. He further deposed no photography or videography of the recovery was made and stated that the accused is not visible in the photographs placed on record along-with the illicit liquor. He lastly denied the suggestion that he was deposing falsely or that he was not present at the spot or that the accused was falsely implicated.
b. PW-2 IO/ SI Krishan Kumar deposed that on 29.03.2018, he was posted at PS Sangam Vihar as ASI and he received the investigation of this case after receipt of DD number 28A. He further deposed that thereafter he reached at the spot and Page No.5 of 17 CR Cases 4051/2018 State Vs. Indra Devi there he met Ct. Bhim Singh along-with the accused and the case property. He further deposed that thereafter he interrogated the accused and she revealed her name as Indra Devi. He further deposed that thereafter he tried to join the public persons in the investigation but they all left citing their personal difficulties and no notice was served upon them due to paucity of time. He further deposed that then he checked the plastic katta which was found containing 100 illicit quarter bottles of make Charlie Apple Green Desi Sharab for sale in Haryana only. He further deposed regarding the seizure of sample case property and the remaining case property. He further deposed that he also prepared the site plan at the instance of PW-1 and remaining aspects of investigation which are not being repeated herein for the sake of brevity. He also deposed regarding joining of HC Mahipal of Excise department in the proceedings of the case and preparation of form M29. He further deposed that on 30.03.2018 he reached the house of the accused and interrogated her and bound her down by pabandinama. He also deposed regarding sending the samples to the excise lab for examination and after receipt of chemical examiner's report he filed the charge-sheet before the court for adjudication.
In his cross-examination by Ld. defence counsel PW-2 deposed that on the date of recovery his duty hours were from 08:00 AM to 08:00 PM. He further deposed that he did not make any separate departure entries when he left the PS and the same may have been done by the DO. He further deposed that Ct. Bhim Singh left the spot at about 03:00 PM and came back at the spot at about 03:45 PM with the copy of FIR and original rukka. He accepted as correct the suggestion that the place of recovery was a public area and he had requested 3-4 Page No.6 of 17 CR Cases 4051/2018 State Vs. Indra Devi public persons to join the investigation but all of them refused citing their personal difficulties but no notice was given to them due to paucity of time. He further deposed that he did not make any photograph or videography of the recovery. He further deposed that he did not remember the exact time when he left the spot or when he returned to the spot. He further deposed that there was no CCTV camera installed at the spot. He further deposed that the distance between the PS and the spot is about 300 m. He further deposed that he had not prepare the seal handling over memo He lastly denied the suggestion that the accused was falsely implicated in the instant case or that all the documents were prepared while sitting at the PS. c. Thereupon, on oral statement of Ld. APP for the State the PE was closed and matter was fixed for statement of accused.
STATEMENT / DEFENCE OF THE ACCUSED
8. In her examination recorded under Section 313 Cr.P.C, the defence of the accused was that of denial. She categorically stated that she is innocent and has been falsely implicated in the present case. She further stated that she was not present at the spot and no recovery has been effected from her. The accused did not lead any evidence in her defence.
ARGUMENTS
9. Learned Assistant Public Prosecutor for the State addressed pertinent arguments. She submitted that the accused as well as the case property have been correctly identified by the witnesses. She stated that link evidence is Page No.7 of 17 CR Cases 4051/2018 State Vs. Indra Devi also available. She urged that the case has been proved beyond doubt against the accused and prayed for conviction of the accused.
10.On the other hand, Ms. Asha assisted by Ms. Nargis, learned counsels for the accused submitted that the accused has been falsely implicated by the police and nothing was recovered from her possession. She submitted that the absence of public witnesses to the alleged recovery is fatal to the case of the prosecution, inconsistency in timelines provided by the police officials and that the IO did not prepare any seal handover memo and thus prayed for acquittal of the accused.
ANALYSIS AND FINDINGS
11.The record has been thoroughly and carefully perused. The respective submissions of the learned Assistant Public Prosecutor for the State and learned counsel for the accused have been considered.
Charge under Section 33 Delhi Excise Act
12.With respect to the charge under Section 33 of the Delhi Excise Act, the case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or licence. 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.
Re: Absence of independent witnesses Page No.8 of 17 CR Cases 4051/2018 State Vs. Indra Devi
13.Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from a residential area. The spot of recovery as per the site plan Ex. PW-2/C was located on a main road and has several houses in the neighbour-hood. Further, as per the site plan, the spot of recovery was D Block Sangam Vihar, which, according to the site plan, is surrounded on all four sides by residential colonies. The place of recovery and apprehension of the accused is, therefore, clearly located in an area where public persons would be readily available. The apprehension and recovery were allegedly made at about 12.30 PM. Thus, at the place and time of the alleged recovery of illicit liquor and apprehension of the accused, public persons would in all likelihood have been present and available or have at least passed by the spot. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
14. It is further pertinent to note that PW-1 and PW-2 in their cross-examination, stated that there were public persons nearby the place of incident and they had asked them to join the investigation but all of them refused. PWs admittedly had not given any notice to the said persons upon their refusal to join the investigation. PW-1 and PW-2 in their cross-examination stated that they did ask certain public persons to join the proceedings however public persons refused citing reasons. Further, PW-1 and PW-2 stated that no public witness came join the investigation. However, neither of them stated the description of the persons who had allegedly refused to join the investigation. Further, there is nothing on record to show that PW-1 or PW-2 Page No.9 of 17 CR Cases 4051/2018 State Vs. Indra Devi had served any notice under Section 160 Cr.P.C. upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW-1 or PW-2 to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well-settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of Cr.P.C 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 that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction Page No.10 of 17 CR Cases 4051/2018 State Vs. Indra Devi 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."
15.This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining 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.
Re: Departure entry not proved
16.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 a single police official, 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 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 Page No.11 of 17 CR Cases 4051/2018 State Vs. Indra Devi 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 namely Ct. Bheem, who was allegedly on patrolling duty at the relevant time and had apprehended the accused with case property, becomes a vital piece of evidence. No such daily diary entry regarding departure of PW-1 is, however, present on record. Despite of cross-examination of the witnesses qua the said departure entries by the witnesses the prosecution was not able to bring on record any proof of the said entries, and the same is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official.
Re: Possibility of misuse of seal of the investigating officer
18.As per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the investigating officer with the seal of 'SGV4SED'. However, the PWs have not deposed qua the handing over of the said seals to any other witness or police official and no handing over memo regarding the same was prepared. The seal in the present case was not handed over to any independent witness nor was it deposited in the Page No.12 of 17 CR Cases 4051/2018 State Vs. Indra Devi malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
Re: Other infirmities in the prosecution case
19. It further needs to be appreciated that after preparing the rukka IO sent Ct. Bheem for registration of FIR to the PS, however, admittedly seizure memo Ex. PW-1/A has been prepared by IO prior to sending the Constable to the PS for registration of FIR. It is, therefore, clear that the seizure memos of the liquor must have been prepared at the spot before the rukka was sent to the police station for registration of the FIR. A perusal of the seizure memo reveals that it contains the FIR details, thus raising a valid doubt in the mind of this court as to how it was made before the FIR was lodged and still contained the FIR details. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Constable Bheem. 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 memos Ex. PW-1/A bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed paragraph 5 as under:
Page No.13 of 17CR Cases 4051/2018 State Vs. Indra Devi "... 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.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 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 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 Page No.14 of 17 CR Cases 4051/2018 State Vs. Indra Devi 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 memos Ex. PW-1/A. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time or that the IO never joined the investigation at the spot and every part of the investigation was done by him while sitting at the PS as alleged by the defence. 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.Another aspect that raises doubts regarding the prosecution case is that the accused Indra was admittedly not arrested or joined in the investigation in the presence of PW-1/ Ct. Bheem who is the sole recovery witness. This Court fails to understand as to how the IO was able to understand that accused was the person from whom the recovery was allegedly recovered form Ct. Bheem. This Court cannot lose sight of the fact that the IO did not even get the TIP of the accused conducted in presence of PW-1 and thus the same raises doubts regarding false implication of accused in this case.
23.Furthermore, the testimony of PW-1 and PW-2 also reveals that there are Page No.15 of 17 CR Cases 4051/2018 State Vs. Indra Devi several inconsistencies regarding the preparation of seal handover memo or return memo.
24. Another important aspect that needs to be appreciated is, no photography or videography of the accused with the case property has been made. Moreover, none of the witnesses other than PW-2 were able to tell the approximate time when Ct. Bheem was sent to the PS for registration of FIR thus raising suspicion about their presence at the spot of recovery itself. Thus, raising sufficient questions regarding the nature and manner in which the investigation was carried out by the IO.
CONCLUSION
25.The facts that no independent witness was cited or examined, daily diary entry regarding departure of PW-1 has not been proved, possibility of misuse of seal has not been ruled out and the appearance of FIR number and case particulars on the seizure memos has not been explained, 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.
26.It is trite in criminal jurisprudence that the prosecution is under an obligation to prove 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, Page No.16 of 17 CR Cases 4051/2018 State Vs. Indra Devi the benefit must necessarily be allowed to the accused.
27.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 is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act. Case property be confiscated to State as per rules.
28.File be consigned to record room. Digitally signed
by SANKALP
SANKALP KAPOOR
Announced in the open Court KAPOOR Date:
2024.10.25
17:08:45 +0530
today i.e. on 25th October, 2024 (Sankalp Kapoor)
Judicial Magistrate First Class-04
South /Saket Court/New Delhi
Page No.17 of 17