Delhi District Court
State vs Naina on 20 December, 2022
IN THE COURT OF MS. DEEKSHA SETHI, MM-03, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-001645-2019 FIR No. : 91/2018 U/s : 33 Delhi Excise Act P.S. : Bindapur State versus Naina a) ID. No. of the Case : 438/19 b) Name & address of the : Ct. Manoj 986/DW Complainant c) Name & address of : Smt. Naina accused S/o Sh. Parveen R/o H.No. RZ- V-21, Vishnu Vihar, Uttam Nagar, Delhi d) Date of Commission of : 26.01.2018 offence e) Offence complained of : 33 Delhi Excise Act f) Plea of the accused : Pleaded not guilty. g) Ld. APP for the State : Sh. Manish Kaushik h) Final Order : Acquitted. State v/s Naina Page 1 of 15 Cr. Case No. 91/2018 h) Date of Institution : 11.01.2019 i) Judgment Pronounced on : 20.12.2022 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 26.01.2018 at about 10:30 AM, Ct. Manoj (hereinafter referred to as the 'complainant') was on patrolling duty along with W/Ct. Anita and when they had reached near main gate, A Block, DDA Flats, Bindapur, Delhi he saw that one person namely Naina (hereinafter referred to as 'accused') was carrying one plastic katta over her head and was coming from E-Block, DDA Flats and upon seeing the complainant as well as W/Ct. Anita, the accused tried to hide herself be- hind a bus. The complainant apprehended the accused with the help of W/Ct. Anita. 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. 91/2018 u/s 33 Delhi Excise Act was registered at PS Bindapur. Investigation of the case was thereafter handed over to Investigating Officer ASI Bahadur Singh.
Proceedings 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.
State v/s Naina Page 2 of 15 Cr. Case No. 91/20183. On her appearance, a copy of chargesheet along with docu- ments 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 ac- cused, a charge under section 33(1) 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 26.01.2018, he along with W/Ct. Anita were on patrolling duty and at about 10:30 AM, they saw that accused was carrying one heavy plastic katta on her head near main gate, A Block, DDA Flats, Bindapur. They apprehended the accused and checked the plastic katta and found that it contained quar-
ter bottles of illicit liquor. They informed the DO, PS Bindapur and ASI Bahadur Singh reached at the spot. They asked some public persons to join the investigation but all of them left after assigning their personal reasons. He checked the plastic katta and found 48 quarter bottles of Party Special Delux Whisky for sale in Arunachal Pradesh only. One quarter bottle was taken out as sample sealed with the seal of BS. The remaining 47 quarter bottles were placed in the same katta and sealed with the seal of BS. IO prepared form M-29 and handed over the seal to him (PW-
1). The case property was seized vide memo Ex. PW-1/A. IO recorded his statement (Ex. PW-1/B) and prepared the site plan Ex. PW-1/C. Accused was arrested vide memo State v/s Naina Page 3 of 15 Cr. Case No. 91/2018 Ex. PW-1/D. Her disclosure statement (Ex. PW-1/E) was recorded and the seal was handed over to him vide memo Ex. PW-1/F. Disposal order of the case property was ex-
hibited as Ex. P-1. This witness had correctly identified the accused in court and was thoroughly cross-examined by Ld. Defence counsel.
(ii) PW-2 W/Ct. Anita has deposed that on 26.01.2018, at about 9:30 AM, she along with Ct. Manoj were on pa- trolling duty and at about 10:30 AM, when they were com- ing from Vishu Vihar to E Block, DDA Flats, they saw one lady aged about 30 years was carrying one heavy plastic katta on her head and on seeing them, she tried to hide her- self behind a bus. Ct. Manoj told her that she was Naina (Sahsi) and resided in Vishu Vihar. They stopped the lady and checked the plastic katta and found that it contained quarter bottles of illicit liquor. Ct. Manoj informed the DO of the police station through mobile phone. At about 11 AM, ASI Bahadur Singh reached at the spot. The accused introduced herself as Naina W/o Parveen R/o House No. U- 21, Vishu Vihar, Uttam Nagar, New Delhi and handed over the custody of accused along with illicit quarter bot- tles (in plastic katta) to ASI Bahadur Singh. IO recorded the statement of Ct. Manoj and asked four-five public per- sons to join the investigation but none of them agreed and did not disclose their names and addresses. He checked the plastic katta and found one gatta peti inside the katta and 48 quarter bottles of Party Special Delux Whisky for sale in Arunachal Pradesh only 180 ml each and "NV Group State v/s Naina Page 4 of 15 Cr. Case No. 91/2018 Punjab Excise" was mentioned on cap of illicit quarter bot- tles of liquor. IO took one quarter bottle as sample and tied it with white cloth and put back 47 quarter bottles into plastic katta and tied its opening with white cloth. IO marked the plastic katta as 'S. No. 1' & sample as 'S. No. 1A'. IO filled M-29 at the spot and sealed the entire liquor with the seal of DS vide seizure memo Ex. PW1/A. IO handed over the seal to Ct. Manoj and prepared a tehrir. At about 11:45 AM, IO handed over the tehrir to Ct. Manoj and sent him to the police station for registration of FIR. At about 12:30 PM, Ct. Manoj came back at the spot and handed over original tehrir and copy of computerized FIR to IO. IO prepared the site plan at the instance of Ct. Manoj. IO recorded the disclosure statement of accused Naina vide memo Ex. PW1/E. With the help of W/Ct. Anita, IO arrested accused Naina with her help vide memo Ex. PW1/D, he conducted the personal search of accused Naina vide memo Ex. PW2/A. She took the accused to DDU hospital for conducting her medical examination. The witness correctly identified the accused in court and the sample of case property (Ex. P-2). The destruction or- der bearing no. Conf./2019/815-16 dated 26.04.2019 is- sued by AC(Excise) of case property was exhibited as Ex. P-1. This witness was thoroughly cross-examined by Ld. Defence counsel.
(iii). PW-3 ASI Arvind has deposed that on 26.01.2018, he was posted at PS Bindapur as MHC(M) CP and on the di- rections of IO ASI Bahadur Singh, he had collected the State v/s Naina Page 5 of 15 Cr. Case No. 91/2018 sealed case property as well as sealed samples with the seal of BS and he had deposited the same at the malkhana of PS vide mud No. 1919/18. He had placed on record the relevant record as Ex. P-1. On 16.10.2018, he had handed over the sealed sample/ exhibit vide RC No. 292/21/18 to Ct. Pramod who had gone to the Excise Office ITO and de- posited them for result analysis. Ct. Parmod handed over the receipt regarding the same to him (PW-3). The relevant record was exhibited as Ex. P-2. He further deposed that he did not tamper with the exhibits during the time they were in his possession.
(iv). PW-4 ASI Bahadur Singh has deposed that on 26.01.2018, on receiving of DD no. 14B about the recov- ery of illicit liquor, he reached at the spot, i.e., near Main Gate, A Block, DDA Flats, Bindapur, New Delhi where he met Ct. Manoj and W/Ct Anita. They had apprehended one lady namely Naina W/o Parveen alongwith illicit liquor. He recorded the statement of Ct. Manoj which was exhib- ited as Ex. PW-1/B. He had asked four-five public persons to join the investigation but none agreed and did not dis- close their names and addresses. He checked the plastic katta and found 48 quarter bottles of Party Special Deluxe Whisky for sale in Arunachal Pradesh only, 180 ml each and 'NV Group Punjab Excise' was written on each cap of quarter bottles. He took out one quarter bottle as sample and put back remaining quarter bottles in the plastic katta and tied the opening of plastic katta as well as sample with white cloth and sealed with the seal of BS and marked the State v/s Naina Page 6 of 15 Cr. Case No. 91/2018 plastic katta as 'Sl. No. 1' and the sample as 'Sl. No. 1A' vide memo Ex. PW-1/A. He handed over the seal after use to Ct. Manoj vide memo Ex. PW-1/F. He filled M-29 Form (Ex. PW-4/A) at the spot. He prepared the tehrir (Ex. PW- 4/B). He handed over the tehrir to Ct. Manoj and asked him to get the FIR registered. Accordingly, Ct. Manoj got the FIR registered and handed over a computerized copy of FIR and original tehrir to him. He prepared the site plan (Ex. PW-1/C) at the instance of Ct. Manoj. After interroga- tion, he recorded the disclosure statement of accused (Ex. PW-1/E). He arrested the accused and conducted her per- sonal search vide memos Ex. PW-1/D and Ex. PW-2/A. W/Ct. Anita took the accused to DDU hospital for her medical examination. They deposited the case property along with form M-29 at the malkhana of police station. He had sent samples to Excise office through Ct. Pramod for result analysis. The witness correctly identified the ac- cused and a sample bottle of illicit liquor (Ex. P-2) in court. The destruction order bearing no. Conf./2019/815- 16 dated 26.04.2019 issued by AC(Excise) of case prop- erty was exhibited as Ex. P-1. This witness was thoroughly cross-examined by Ld. Defence counsel.
(v). PW-5 HC Parmod has deposed that on 16.10.2018, he was posted at PS Bindapur as constable and on that day, he had taken the case exhibits/ sealed samples with seal of BS from MHCM(CP) and deposited them at Excise Office Vikas Bhawan, ITO for result analysis vide RC No. 292/21/18. The relevant record was marked as Mark Y. He State v/s Naina Page 7 of 15 Cr. Case No. 91/2018 had handed over the said receipt to the MHC(M) on the same day. He further stated that he did not tamper with case exhibits during the time they were in his possession.
5. Vide separate statement of the accused u/s 294 CrPC, she had admitted the genuineness of the FIR, DD No. 14B and DD No. 12B both dated 26.01.2018 and the result of Ex- cise Laboratory, Govt. of NCT of Delhi. 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 on 20.12.2022 wherein all the incriminating evidence appear- ing against the accused was put to her, which she had de- nied to be correct and submitted that she was innocent and falsely implicated. The accused chose not to lead any evi- dence in her 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 48 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 State v/s Naina Page 8 of 15 Cr. Case No. 91/2018 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
10.It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of inno- cence 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 prose- cution 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), PW-2 W/Ct. Anita and PW-4 IO ASI Bahadur Singh 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 State v/s Naina Page 9 of 15 Cr. Case No. 91/2018 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 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 statement of PW-1 Ct. Manoj, PW-2 W/Ct. Anita as well as PW-4 ASI Bahadur Singh reveals that they State v/s Naina Page 10 of 15 Cr. Case No. 91/2018 have deposed that Form M-29 was filled up on the spot. Although PW-4 IO ASI Bahadur Singh has deposed that the said form was deposited in the Malkhana with the MHC(M), but the prosecution has not placed on record any document to prove the same. Thus, failure to prove the deposition of Form 29 with the seized sample in the malkhana, creates doubt on the prosecution version.
15.Perusal of the record further reveals that there is a delay of approximately nine months 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 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."
16.In the instant case, alleged recovery was made on 26.01.2018 yet the samples were sent to the Excise Control Laboratory for examination on 16.10.2018, i.e., after about nine months. 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 State v/s Naina Page 11 of 15 Cr. Case No. 91/2018 independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
17.Perusal of the record further reveals that PW-1 Ct. Manoj (the complainant) as well as PW-4 IO ASI Bahadur Singh have stated in their respective cross-examinations that PW- 4 (the IO) had prepared the seizure memo Ex. PW-1/A of the illicit liquor and rukka was thereafter prepared and sent to the police station for registration of FIR through PW-1 Ct. Manoj. Thereafter, present FIR was registered. It is, therefore, clear that the seizure memo of the case property was prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the seizure memo Ex. PW-1/A, however, surprisingly it bears the FIR number and it is thus, amazing since the number of the FIR could have come to his (PW-4) knowledge 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 which came into existence before registration of the FIR. However, as discussed above, the seizure memo Ex. PW-1/A bears 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.State v/s Naina Page 12 of 15 Cr. Case No. 91/2018
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 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 State v/s Naina Page 13 of 15 Cr. Case No. 91/2018 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 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-1 Ct. Manoj (the complainant) as well as PW-4 IO ASI Bahadur Singh have categorically deposed in their respective cross- examinations that the IO had prepared the seizure memo Ex. PW-1/A before the tehrir was sent to the police station for registration of the FIR. In such a scenario, it remains unexplained as to how the FIR No. and its details figure on the top of the document Ex. PW-1/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 il-
State v/s Naina Page 14 of 15 Cr. Case No. 91/2018licit liquor was recovered from the possession of the ac- cused. The accused Naina is, therefore, acquitted of the of- fence u/s 33(1) Delhi Excise Act.
21.This judgment contains 15 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 ANNOUNCED IN THE OPEN COURT Deeksha Deeksha Sethi Date:
TODAY, i.e., ON 20.12.2022 Sethi 2022.12.20 16:21:46 +0530 Deeksha Sethi Metropolitan Magistrate-03 South-West District/New Delhi 20.12.2022 State v/s Naina Page 15 of 15 Cr. Case No. 91/2018