Delhi District Court
State vs . : Monika on 5 August, 2023
IN THE COURT OF SH. VAIBHAV KUMAR
METROPOLITAN MAGISTRATE - 04, NORTH EAST,
KARKARDOOMA COURTS, DELHI.
State Vs. : Monika
FIR No : 511/2020
U/s : 33 Excise Act
P.S. : Karawal Nagar
DLNE020160362022
1. Date of commission of offence : 28.10.2020
2. Date of institution of the case : 10.10.2022
3. Name of the complainant : Ct. Laxmi Narayan
4. Name of accused, parentage & : Monika W/o Sh. Anil, R/o H. No. A-7,
Gali No. 1, Ankur Enclave Karawal
Nagar Delhi
5. Offence complained of : Section 33 Excise Act
6. Plea of the accused : Pleaded not guilty
7. Final order : Acquittal
Argued by:- Ms. Deepika Singh, Ld. APP for the State
Sh. Raj Kumar, Ld. Counsel for accused.
Fir No. 511/20 State Vs. Monika PS Karawal Nagar Page 1 of 10
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION: -
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 28.10.2020, at around 08:00 pm, at H. No. 7, gali no. 1, Ankur Enclave, Karawal Nagar the accused Monica was found in the possession of 32 quarter bottles of illicit liquor which was meant for sale in Haryana only. As such, it is alleged that the accused, Monika committed the offence punishable under section 33 of Delhi Excise Act, for which FIR no. 511/20 was registered at the Police Station, Karawal Nagar.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigation Officer (hereinafter referred to as the "IO") undertook investigation and on culmination of the same, the chargesheet was filed against the aforementioned accused person. After taking cognizance of the offence, the accused, Monika was summoned to face trial vide order dated 10.10.2022.
3. On appearance of the accused, a copy of chargesheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC"). After finding a prima facie case against the accused person, charge for offence under section 33 Excise Act was framed against the accused person on 14.12.2022. The accused pleaded not guilty to the aforesaid charge and claimed trial.
PROSECUTION EVIDENCE:
4. During the trial, prosecution led the following oral and documentary evidence Fir No. 511/20 State Vs. Monika PS Karawal Nagar Page 2 of 10 against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW-1 Ct. Laxmi Narayan PW-2 W/Ct. Manju PW-3 HC Purushotam PW-4 & ASI Junaid PW-5 DOCUMENTARY EVIDENCE Ex. PW1/A Statement of the complainant Ex. PW2/A Seizure memo Ex. PW2/B Notice u/s 41-A CrPC Ex PW2/C Pabandinama Ex. PW3/A Rukka Ex. PW3/B Site plan Ex. PW3/C Disclosure statement Ex. PW4/A Road certificate Ex. P-1 Case property (colly) Fir No. 511/20 State Vs. Monika PS Karawal Nagar Page 3 of 10
5. PW-1 Ct. Laxmi Narayan has stated that on 28.10.2020, he was on area patrolling duty and at 08:00 pm, one secret informer informed him regarding illicit liquor being sold by a lady at Gali no. 1, A-Block, Ankur Enclave. The information was conveyed to the SHO and the PW-1 reached the spot upon the instance of the secret informer where the secret informer pointed out towards a lady who was selling liquor. He has deposed that the said lady started walking after picking up her bag upon which he became suspicious and checked the said bag and found quarter bottles of illicit liquor. The information was conveyed to the DO upon which HC Purushottam and W/Ct. Manju appeared on the spot. Thereafter he has deposed that the lady and the bag was handed over to HC Purushottam who then checked and found 32 quarter bottles of illicit liquor labled as "asli santra desi sharab for sale in Haryana only". Thereafter the IO took one sample and sealed it with the seal of PK and prepared a seizure memo. Thereafter he has deposed that the IO got the FIR registered and the said lady namely Monika was served a notice u/s 41-A CrPC and was bound down. The witness has correctly identified the case property in the Court. Identity of the accused was not disputed by the Ld. Counsel. During his cross-examination he has deposed that he was on area patrolling duty on a motorcycle and remained at the spot for 03:30 to 03:45 hours. He has also stated that public persons were asked to join the investigating however none of them agreed and no notice was served upon such persons. He has also stated that the case property was seized at the spot and a seizure memo was prepared on the spot however no seal handing over memo was prepared by the IO. He has also stated that the IO took the case property to the PS in his personal car.
6. PW-2 W/Ct. Manju has stated that on 28.10.2020 at around 08:15 pm, she received an information regarding apprehension of one lady along Fir No. 511/20 State Vs. Monika PS Karawal Nagar Page 4 of 10 with illicit liquor by Ct. Laxmi Narayan therefore she along with HC Purushotam went to the spot where the said lady namely Monika was handed over to her. One bag was also handed over by Ct. Laxmi Narayan to the IO HC Purushotam in which 32 quarter bottles of illicit liquor were found. Her further deposition is similar to the testimony of PW-1. During her cross-examination she has stated that she remained at the spot till 11:45 pm and the case property was first sealed and the rukka was prepared later. She has also stated that the accused was served a notice u/s 41-A CrPC on the spot and the seizure memo was also prepared at the spot. She could not recall if the IO had prepared a seal handing over memo.
7. PW-3 HC Purushotam has deposed that on 28.10.2020, he went to the spot along with W/Ct. Manju where Ct. Laxmi Narayan produced one lady in possession of a white and yellow colour cloth bag who disclosed her name as Monika. The said bag was checked and 32 quarter bottles labled as "desi masaledar santra" were found. He has deposed that 2-3 public persons were asked to join the proceedings however none of them agreed. Thereafter he stated that he sealed the case property and a seizure memo was prepared. Thereafter he got the FIR registered. During his cross-examination he has stated that no seal handing over memo was prepared and no public person was made to join investigation. He has also stated that photography was not done during the proceedings.
8. PW-4 and PW-5 ASI Junaid has deposed that he had deposited the sample at the Excise Laboratory on 19.02.2021 and has produced the register No. 19 entry and the road certificate. During his cross- examination he has stated that no photographs of the sample were taken.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE Fir No. 511/20 State Vs. Monika PS Karawal Nagar Page 5 of 10
9. Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded on 20.07.2023 without oath under section 313 CrPC, wherein she stated that she is innocent and has falsely been implicated in the present case. Pursuant thereto, she stated that she does not wish to lead defence evidence.
ARGUMENTS
10. I have heard the Ld. APP for the State and Ld. LAC for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
11. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. She has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. She further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
12. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the testimonies of the prosecution witnesses. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
13.In order to establish the offence under Section 33 of the Excise Act, the prosecution must fulfil all the essential ingredients of the offence. It becomes relevant to reproduce Section 33 of the Excise Act which is as under, Fir No. 511/20 State Vs. Monika PS Karawal Nagar Page 6 of 10 "33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any license, permit or pass, granted under this Act--
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari;
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to one lath rupees"
14.In criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. On a bare perusal of the above offence, it can be culled out that the prosecution has to prove that the accused was found in possession of illicit liquor, and the said possession of the accused was without any permit, license or pass. Thus, it is essential to prove the recovery from the accused.
APPRECIATION OF EVIDENCE
15. In the present case, PW1 was on area patrolling duty when he received an information from a secret informer regarding illicit liquor being sold at Gali no. 1, A-Block, Ankur Enclave, on 28.10.2020 i.e., on the date of incident upon which the information was conveyed to the Duty Officer and the IO HC Purushotam appeared on the spot along with W/Ct. Manju. Thereafter the PW Fir No. 511/20 State Vs. Monika PS Karawal Nagar Page 7 of 10 has deposed that a raiding party was constituted. The raiding party consisted of PW1, PW2 and PW3 i.e., all the police officials. However, in the examination- in-chief of the witnesses, there is no mention about any sincere efforts made to join public witnesses in the incident. The incident took place in the evening. Although it is true that non- joining of independent witnesses cannot be a sole ground to discard the evidence of police witnesses (Refer Appabhai vs. State of Gujarat AIR 1988 SC 696), however, evidence in every case is to be weighed in light of the peculiar facts of the case. PW1, PW2 and PW3 have admitted in their cross examination that no public person joined the investigation. The IO did not serve any notice to such persons who refused to join the investigation. It is to be noted here that the information was received at the PS and the IO had enough time to include a public person in the raiding party specially when the raid was going to be conducted in the evening timings in a residential area. No explanation has been provided by the PW-1, PW2 and PW3 as to why the public persons were not joined in the investigation. The fact that despite availability, no public persons were joined, casts a doubt on the version of the prosecution. No sincere attempts were made by the police to join witnesses in the present case, for reasons unknown and unjustified.
16.It is also to be noted that PW1 has deposed that PW3 took out the illicit liquor and prepared the seizure memo and also sealed the remaining property and thereafter intimation was sent to the police station for registration of FIR. Thereafter, the PW 1 was given the Tehrir for registration of FIR. Similar is the deposition of the PW3. In the consistent version of the prosecution witnesses regarding the chronology of events, the seizure memo Ex. PW1/A was prepared before the registration of the FIR. However, it is observed that the seizure memo contains the description and number of the FIR. How could the FIR number be mentioned before registration of the same, remains unexplained from the testimonies of the prosecution witnesses. It has also been deposed by all the Fir No. 511/20 State Vs. Monika PS Karawal Nagar Page 8 of 10 PWs that the seizure memo was prepared at the spot by the IO however, the same is in a typed and printed format instead of being handwritten and neither the IO nor any of the PWs have been able to explain if they were carrying any computer/ laptop or printer at the spot and how the seizure memo which was prepared on the spot was in a printed format. This puts the genuineness of the seizure memo Ex. PW1/A under a cloud of suspicion.
17.The Ld. Counsel for the accused further submits that there are contradictions in the testimonies of PW-1, PW-2 and PW-3. The Learned counsel for the accused has further argued that the IO did not prepare any seal handing over memo and therefore, the possibility of tampering cannot be ruled out. In so far as the contention regarding handing over the seal is concerned, the witness PW1 has stated the IO handed over the seal to him at the spot and no seal handing over memo was prepared. PW3 has also stated that no seal handing over memo was prepared. The case property was seized on 28.10.2020 however, there is no evidence to show as to when the property was deposited in the Malkhana. The possibility of tampering cannot be ruled out. As such, the prosecution has not been able to prove that there was no scope for tampering. Therefore, the evidence of the witnesses on this point does not inspire confidence. When there is no other public independent witness and only police witnesses are there, then the aforesaid contradictions in their testimonies throws a doubt on the case of the prosecution.
CONCLUSION
18.To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 33 of the Excise Act beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution. The recovery of the illicit liquor from the possession of the accused, which was the essential ingredient of the Fir No. 511/20 State Vs. Monika PS Karawal Nagar Page 9 of 10 offence, is highly doubtful. The fact that independent witnesses were not joined, despite abundant availability, casts serious doubt on the version of the prosecution. Further, the accused has been able to raise doubts with respect to the possibility of tampering with the case property. I have no hesitation to hold that the accused is entitled to benefit of doubt in the present case.
19.Resultantly, the accused, Monika is entitled for benefit of reasonable doubt and is hereby found not guilty. Thus, the accused, Monika hereby stands acquitted for the offence under section 33 Excise Act.
Announced in the open court on 05.08.2023 in the presence of the accused.
(Vaibhav Kumar) Metropolitan Magistrate-04 North East, KKD, New Delhi 05.08.2023 Note:- This judgment contains 10 pages and each page has been signed by me.Fir No. 511/20 State Vs. Monika PS Karawal Nagar Page 10 of 10