Delhi District Court
State vs Rajni on 28 August, 2023
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 88/2019
U/s 33/38 of Delhi Excise Act
PS: Swaroop Nagar
State vs. Rajni
Date of Institution of case:21.10.2019
Date of Judgment reserved: 18.08.2023
Date on which Judgment pronounced:28.08.2023
JUDGMENT
Case Number : 5487/2019
Date of Commission : 24.03.2019
of offence
Name of the : Ct. Dinesh, No. 2208/OND
complainant
Name and address of : Rajni W/o Ranjeet Singh
the accused R/o Gali No.14, Khasra No. 6/11, Bhatta Road,
Swaroop Nagar, Delhi.
Offence complained : 33/38 of Delhi Excise Act of Plea of accused : Not guilty Final Order : Acquitted Jyoti Digitally signed by Jyoti Nain Date: 2023.08.28 Nain 17:42:00 +0530 FIR No. 88/19 Page 1 of 14 State Vs. Rajni BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is, that on 24.03.2019, at about 06:45 pm, near Govt. Sr. Sec. School, Bhatta Road, Swaroop Nagar, Delhi within the jurisdiction of PS Swaroop Nagar, accused Rajni was found in possession of 01 plastic katta containing 55 quarter bottles of illicit liquor of make Santra Masaledar Desi Sharab, for sale in Haryana only, without any permit or licence.
Thus, according to prosecution, accused has committed offences punishable under Section 33 of the Delhi Excise Act, 2009.
Further, accused was found unlawfully transporting the illicit liquor without permit and thus according to prosecution, accused has committed offence punishable under Section 38 of the Delhi Excise Act, 2009. Thereafter, upon investigation statements of witnesses were recorded. Subsequently, an FIR was registered against the accused.
2. Investigation was completed and police report under section 173 Cr.P.C. was filed under section 33 of the Delhi Excise Act, 2009 of the prescribed duty. Accused also committed offence punishable u/s 38 of Delhi Excise Act, 2009 as per the investigating agency and charges were framed under the section as well.
3. Copy of charge sheet and annexed documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused was framed under section U/s 33/38 of the Delhi Excise Act, 2009 vide order dated 23.01.2021 by the then Ld. Predecessor. Thereafter, accused pleaded not guilty and claimed trial.
FIR No. 88/19 JyotiPage 2 of 14 signed by
Digitally
Jyoti Nain
State Vs. Rajni Nain Date: 2023.08.28
17:42:05 +0530
5. In order to prove its case, prosecution examined three witnesses.
6. PW1 is HC Dinesh, No. 3737/Security, PIS No. 28107248.
He deposed that on 24.03.2019, he was posted at PS Swaroop Nagar as Constable. On that day, he was on patrolling duty in the area of Beat No. 5, Bhatta Road, Swaroop Nagar, Delhi. On that day, at about 06:45 PM, he reached near Government School, Bhatta Road, Delhi where he saw accused Rajni was having one plastic katta on her shoulder. On seeing him in uniform, accused Rajni tried to escape from the spot alongwith the plastic katta. On suspicion, he apprehended accused alongwith the plastic katta of illicit liquor.
He further deposed that he made inquiry regarding the white plastic katta but she could not give the satisfactory answer. He checked the plastic katta and the plastic katta was found containing quarter bottles of illicit liquor. On inquiry, accused had revealed her name as Rajni.
He further deposed that he gave the information regarding the recovery of the illicit liquor in the PS. After some time, IO HC Vikas alongwith W/Ct. Somlata reached at the spot and he handed over the custody of accused to W/Ct. Somlata and recovered plastic katta of the illicit liquor to IO HC Vikas. IO requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. IO recorded his statement which is Ex.PW1/A bearing his signatures at Point A. Without wasting time, IO checked the katta and the same was found containing 55 quarter bottles of make Santra Masaledar Desi Sharab for Sale in Haryana Only. IO took out 01 quarter bottle as a sample from the plastic katta and remaining quarter bottles again put into the plastic katta. IO prepared pullanda of sample quarter bottles and remaining liquor and sealed with the seal of FIR No. 88/19 Jyoti Digitally signed Page by 3 of 14Nain Jyoti Date:
State Vs. Rajni Nain 2023.08.28 17:42:09 +0530 VS. IO also filled form M29 at the spot. After use, IO handed over the seal to him. IO seized the recovered liquor vide memo Ex.PW1/B bearing his signatures at Point A. Thereafter, IO prepared rukka and handed over the same to him for registration of FIR. He went to the PS and got registered the present FIR. After registration of FIR, he came back to the spot and handed over the copy of FIR and original rukka to IO. IO mentioned FIR Number on the seizure memo and M29 FORM. IO prepared site plan at their instance which is Ex.PW1/C bearing his signatures at Point A. IO served notice u/s 41A Cr.P.C. to the accused Rajni. IO deposited the case property in the Malkhana.
This witness was duly crossexamined by Ld. Defense Counsel.
7. PW2 is HC Somlata, No. 1581/OND, PS Shahbad Dairy.
She deposed, that on 24.03.2019, she was posted at PS Swaroop Nagar as W/Constable. On that day, on receipt of DD No.21B already Ex.A2 to IO HC Vikas, she alongwith IO HC Vikas reached at the spot, where they met with Ct. Dinesh and Ct. Dinesh handed over the custody of accused Rajni to her and recovered plastic katta of the illicit liquor to IO HC Vikas. IO requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. IO recorded the statement of Ct. Dinesh which is already Ex.PW1/A. Without wasting time, IO checked the katta and the same was found containing 55 quarter bottles of make Santra Masaledar Desi Sharab for Sale in Haryana Only. IO took out 01 quarter bottle as a sample from the plastic katta and remaining quarter bottles again put into the plastic katta. IO prepared pullanda of sample quarter bottles and remaining liquor and sealed with the seal of VS. IO also filled form M29 at the spot. After use, IO handed over the seal to Ct. Dinesh. IO Jyoti Digitally signed by Jyoti Nain Date: 2023.08.28 FIR No. 88/19 NainPage 4 of 14 17:42:13 +0530 State Vs. Rajni seized the recovered liquor vide memo already exhibited as Ex. PW 1/B. Thereafter, IO prepared rukka and handed over the same to Ct. Dinesh for registration of FIR. Accordingly, Ct. Dinesh went to the PS and got registered the present FIR. After registration of FIR, Ct. Dinesh came back to the spot and handed over the copy of FIR and original rukka to IO.
She further deposed that IO mentioned FIR No. on the seizure memo and M29 FORM. IO prepared site plan at the instance of Ct. Dinesh which is already exhibited as Ex. PW 1/C. IO served notice u/s 41A Cr.P.C. to the accused Rajni. IO deposited the case property in the Malkhana.
This witness was duly crossexamined by Ld. Defense Counsel.
8. PW3 is IO/HC Vikas, No. 195/ Crime.
He deposed, that on 24.03.2019, he was posted at PS Swaroop Nagar as HC. On that day, on receipt of DD No. 21B already Ex.A2 to him, he alongwith W/Ct. Somlata reached at the spot i.e. Near Govt.Scholl Bhatta Road, Delhi where they met with Ct. Dinesh and Ct. Dinesh handed over the custody of accused Rajni to W/Ct. Somlata and recovered plastic katta of the illicit liquor to him. He requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. He recorded the statement of Ct.Dinesh which is already Ex.PW1/A bearing his signature at point B. Without wasting time, he checked the katta and the same was found containing 55 quarter bottles of make Santra Masaledar Desi Sharab for Sale in Haryana Only.
He further deposed that he took out 01 quarter bottle as a sample from the plastic katta and remaining quarter bottles again put into the plastic katta. He prepared pullanda of sample quarter bottles and remaining liquor and sealed with the Jyoti Digitally signed by Jyoti Nain Nain Date: 2023.08.28 17:42:18 +0530 FIR No. 88/19 Page 5 of 14 State Vs. Rajni seal of VS. He also filled form M29 at the spot which is now exhibited as Ex. PW 3/A bearing his signature at point A. After use, he handed over the seal to Ct.Dinesh. He seized the recovered liquor vide memo already exhibited as Ex.PW 1/B bearing his signature at point B. He prepared rukka which is Ex. PW3/B bearing his signature at point A and handed over the same to Ct. Dinesh for registration of FIR. Ct. Dinesh went to the PS and got registered the present FIR. After registration of FIR, Ct. Dinesh came back to the spot and handed over the copy of FIR and original rukka to him.
He further deposed that he mentioned FIR No. on the seizure memo and M29 FORM. He prepared site plan at the instance of Ct. Dinesh which is already exhibited as Ex.PW1/C bearing his signature at point A. He served notice u/s 41A Cr.P.C. to the accused Rajni which is exhibited as Ex.PW3/C bearing his signature at point A. He deposited the case property in the Malkhana.
He further deposed that on 24.04.2019, he sent the sample of case property to the Excise Control Laboratory ITO Delhi vide RC No. 48/21/19 through Ct. Mandeep. After completion of investigation, he prepared chargesheet and filed the same before the court for trial.
This witness was duly cross examined by Ld. Defence Counsel.
9. Perusal of record shows, that statement of accused was also recorded under section 294 Cr.P.C in which the accused has admitted the document i.e. Registration of FIR No.88/19 which is Ex.A1, DD No.21B which is Ex.A2, DD No.17A- which is Ex.A3, DD No.45Awhic is Ex.A4, Excise Control Laboratory Result which is Ex.A5, Road Certificate, which is Ex.A6 and contents of register No.19 regarding the deposition of case property.
Jyoti Digitally signed
by Jyoti Nain
Nain Date: 2023.08.28
17:42:22 +0530
FIR No. 88/19 Page 6 of 14
State Vs. Rajni
10. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused, to which she denied the allegations made against her and claimed herself to be innocent and pleaded that she has been falsely implicated in this case. Accused denied to lead any evidence in his defence and the same was closed.
11. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and carefully have perused the record.
12. It is argued by the Ld. APP for the state, that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit liquor without permit. It is further stated, that there are ocular and documentary evidence on record to bring home the guilt of the accused.
13. Per contra it is argued by the Ld. Counsel for the accused, that non joinder of public witness despite availability casts a shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused and that she is falsely implicated in present case and that there is no independent evidence against her.
14. It is a cardinal principle of criminal jurisprudence, that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law, that in order to successfully bring home the guilt of the accused, prosecution is suppose to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, FIR No. 88/19 Page 7 of 14 State Vs. Rajni Jyoti Digitally signed by Jyoti Nain Date: 2023.08.28 Nain 17:42:28 +0530 in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
15. In present case prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened at about 06:45 p.m. and it is admitted fact, that public persons were available at the spot, which is evident from the testimony of PW1 and PW2, who stated in their examination in chief, that IO had requested 45 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses.
The relevant extract of their crossexamination to this effect are as under: PW1 i.e. HC Dinesh, deposed in his cross examination, "It is correct that no written notice was given to any public person who refused to join the investigation".
PW2 W/HC. Somlata deposed in her crossexamination, " It is correct that no written notice was given to any public person who refused to join the investigation".
16. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on "Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have 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 FIR No. 88/19 Page 8 of 14 State Vs. Rajni Jyoti Digitally signed by Jyoti Nain Date: 2023.08.28 Nain 17:42:32 +0530 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".
17. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55, it is observed as under: "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. 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".
FIR No. 88/19 Page 9 of 14State Vs. Rajni Jyoti Digitally signed by
Jyoti Nain
Nain Date: 2023.08.28
17:42:36 +0530
18. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court of India held as under : "It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non compliance. It is wellsettled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied].
19. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story.
FIR No. 88/19 Page 10 of 14State Vs. Rajni Jyoti Digitally signed by
Jyoti Nain
Nain Date: 2023.08.28
17:42:40 +0530
20. In the present case, IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility, that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were admittedly present.
Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
21. Another material thing which is required to be discussed about the case of prosecution is, that on 24.03.2019, PW1 was on patrolling duty in the area of Beat No.5, meaning thereby, that at the relevant time, he was not in the PS and it seems that he was outside the PS, then as per Punjab Rules, he being on duty was required to enter his departure & arrival to & from the PS Swaroop Nagar in the DD register of the said PS. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934: "22.49 Matters to be entered in Register No. IIThe 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: Lines & Police Posts, where Register no.II is maintained.
Jyoti Digitally signed
by Jyoti Nain
Date: 2023.08.28
Nain 17:42:47 +0530
FIR No. 88/19 Page 11 of 14
State Vs. Rajni
22. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW 1. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the presence of PW1 at the spot. Hence, it creates doubt in the prosecution story.
23. In present case, recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, an inference has to be drawn, that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused. In such circumstances fairness of investigation is doubted. Reliance can be placed on the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that "5. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) 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. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
Jyoti Digitally signed by
Jyoti Nain
Nain Date: 2023.08.28
17:42:52 +0530
FIR No. 88/19 Page 12 of 14
State Vs. Rajni
24. In present case the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness.
PW2 W/HC Somlata categorically stated, in her crossexamination, that " It is correct that no handing over memo of seal was prepared by the IO in my presence".
In these circumstances, the possibility of tampering of case property cannot be ruled out.
Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
25. Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that "10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused." Digitally signed by Jyoti Nain Jyoti Nain Date: 2023.08.28 17:42:56 +0530 FIR No. 88/19 Page 13 of 14 State Vs. Rajni
26. All the lapses in investigation creates doubt on the very recovery of illicit liquor from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
27 In view of the above said description and in the absence of any cogent evidence against the accused Rajni, she is hereby acquitted for offence under section 33/38 The Delhi Excise Act, 2009. Case property be confiscated to the state as per rules and the same be destroyed.
28. File be consigned to Record Room.
29. This Judgment consists of 14 pages and all pages bear my signature.
Jyoti Digitally signed
by Jyoti Nain
Date:
Announced and dictated directly
Nain 2023.08.28
17:43:03 +0530
into the computer in open court (JYOTI NAIN)
on 28th Day of August 2023. MM07/NORTH DISTRICT ROHINI COURTS, DELHI.
FIR No. 88/19 Page 14 of 14