Delhi District Court
State vs . Anita on 13 July, 2021
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 231/17
U/s 33/38 of Delhi Excise Act
PS: Swaroop Nagar
State vs. Anita
Date of Institution of case:15.03.2019
Date of Judgment reserved: 13.07.2021
Date on which Judgment pronounced:13.07.2021
JUDGMENT
Case Number : 1391/2019
Date of Commission : 09.08.2017
of offence
Name of the : HC Sunil, No. 2239/NW
complainant
Name and address of : Anita W/o Mukesh
the accused R/o Gali No. 5, DCM Colony, E Block, Ibrahimpur
Extn., Delhi.
Offence complained : 33/38 of Delhi Excise Act
of
Plea of accused : Not guilty
Final Order : Acquitted
Digitally signed by
RICHA RICHA SHARMA
SHARMA Date: 2021.07.13
15:30:11 +0530
FIR No. 231/17
State Vs. Anita Page 1 of 11
BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is that, on 09.08.2017, at about 10:00 pm, at Ibrahim Pur, DCM Colony, Ganda Nala, Near Shiv Mandir, Nathur Pura, Swaroop Nagar, Delhi within the jurisdiction of Police Station Swaroop Nagar, accused Anita was found in possession of 1 plastic katta containing 40 quarter bottles of illicit liquor make Raseela Santra Masaledar Deshi Sharab, for sale in Haryana only, without any permit or license. Thereafter, upon investigation statements of witnesses were recorded. Thereafter, 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 Delhi Excise Act of the prescribed duty. Accused also committed offence punishable u/s 38 of Delhi Excise Act as per the investigating agency.
3. Copy of charge sheet and 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 33/38 of Delhi Excise Act by the Ld. Predecessor, vide order dated 20.05.2019. Thereafter, accused pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined six witnesses.
6. PW1 is HC Sunil Kumar, No. 1005/OND, PS Swaroop Nagar. He deposed, that on 09.08.2017, he was posted at PS Swaroop Nagar as Head Constable. On that day, he was on patrolling duty in the area of beat no. 8. At about 10:00 pm, he Digitally signed by RICHA RICHA SHARMA FIR No. 231/17 SHARMA Date: 2021.07.13 15:30:17 +0530 State Vs. Anita Page 2 of 11 reached Nala Road, near Shiv Mandir, DCM Colony, Nathupura Colony. He saw that accused Anita was sitting having a plastic katta and on seeing him in uniform, she started moving on the left side towards Shiv Mandir with fast steps. He apprehended the accused at a distance of 20 to 25 steps and asked her about the plastic katta but she could not give any satisfactory answer. In the meantime, police officials namely ASI Jawaharlal, HC Pradeep Kumar and W/ASI Deepika also reached at the spot and they told him, that they had also received the same information about the illicit liquor. W/ASI Deepika checked the katta and found it containing quarter bottles of illicit liquor. On inquiry, the accused revealed her name as Anita, W/o Sh. Mukesh. He gave the said information at police station Swaroop Nagar. After some time, IO HC Subhash and W/HC Surende Kaur reached at the spot. He further deposed, that he handed over the custody of accused and recovered illicit liquor to IO. 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 checked the plastic katta and found it containing 40 quarter bottles of illicit liquor, make Raseela Santra Masaledar Deshi Sharab for sale in Haryana only. IO took out 1 quarter bottle as a sample and remaining liquor again was put into the plastic katta. IO prepared pullanda of sample quarter bottle and remaining liquor and sealed it with the seal of SK. IO also filled form M29. After use, IO handed over the seal to him. IO recorded the disclosure statement of the accused. IO seized the recovered liquor vide memo Ex.PW1/A, bearing his signature at point A. IO send him to police station for registration of FIR. After registration of FIR, he came back at the spot. IO prepared documents. IO gave notice under section 41.A cr.p.c to the accused for joining the investigation. After that, they came back to the police station. IO deposited the case property at malkhana.
This witness was cross examined by Ld. APP for the State. This witness was duly crossexamined by Ld. defense counsel.
Digitally signed by RICHA RICHA SHARMA
SHARMA Date: 2021.07.13
15:30:24 +0530
FIR No. 231/17
State Vs. Anita Page 3 of 11
7. PW2 is W/ASI Deepika, No.135/D, DCell, Vigilance Branch, New Delhi. She deposed, that on 09.08.2017, she was posted at Vigilance Branch, North West, Delhi as W/ASI. On that day, ASI Jawahar Singh received secret information regarding the recovery of illicit liquor at DCM Colony, Nathupura, Delhi. On that day, she was also present in her office. After receiving information, she alongwith HC Pradeep, ASI Jawahar Singh went to the spot i.e. Near Shiv Madnir, Ibrahimpur, DCM Colony, Delhi where they met with HC Sunil Kumar and he handed over the custody of Anita to her. She further deposed, that IO check the plastic katta recovered from the possession of the accused Anita in her presence. On checking, the plastic katta was found containing 40 quarter bottles of illicit liquor, make Santra Masaledar Deshi Sarab. IO called W/HC Surender Kaur from the police station and handed over the custody of the accused Anita to her.
This witness was cross examined by Ld. APP for the State. This witness was also cross examined by Ld. Defence Counsel.
8. PW3 is ASI Jawahar Lal, No.1243/D, Traffic Police Line, Todapur, New Delhi. He deposed, that on 09.08.2017, he was posted at North West Vigilance as ASI. On that day, his Senior Officers constituted a raiding party including him, W/ASI Deepika and HC Pradeep and they also directed them to go at Nathupura, DCM Colony, Delhi. Accordingly, they went to the spot i.e. near Ganda Nala, Near Shiv Mandir, Ibrahimpur Road, DCM Colony, Nathupura, Delhi. In the meantime, HC Sunil also reached at the spot. They shared the secret identification and revealed their identity to HC Sunil Kumar. He further deposed, that they saw accused Anita was carrying a plastic katta towards the Ganda Nala. On his request, W/ASI Deepika apprehended the accused Anita with that plastic katta. On inquiry, accused revealed her name as Anita. HC Sunil gave the information regarding the recovery of liquor at RICHA Digitally signed by RICHA SHARMA FIR No. 231/17 SHARMA Date: 2021.07.13 15:30:31 +0530 State Vs. Anita Page 4 of 11 PS Swaroop Nagar. After sometime IO HC Subhas Chander reached at the spot. IO HC Subhas Chander made inquiry from accused Anita. IO also requested 34 public persons to join the investigation but they refused to join and left the spot. IO HC Subhas Chander recorded the statement of HC Sunil. IO HC Subhas Chander opened the plastic katta and 40 quarter bottles of illicit liquor were recovered from the plastic katta of make Rashila Santra Masalaedar Deshi Sarab. IO took out one quarter bottle as a sample and remaining quarter bottles again was put into the plastic katta. IO also filled M29 at the spot. IO prepared pullnda of quarter bottles and plastic katta containing liquor and sealed with the seal of SK. IO also put his seal on M29 form. He further deposed, that IO prepared seizure memo of recovered illicit liquor which is already exhibited as ExPW1/A, bearing his signature at point C. IO HC Subhas Chander prepared rukka and handed over the same to HC Sunil for registration of FIR in the PS. After registration of the case, HC Sunil came back at the spot and handed over the copy of FIR and original rukka to IO HC Subhas Chander. IO prepared site plan which is already exhibited as Ex.PW1/C, at the instance of HC Sunil. IO recorded his statement u/s 161 of CrPC.
This witness was cross examined by Ld. Defence counsel.
9. PW4 is HC Pardeep Kumar, No. 608/NW, CAW Cell. He deposed on the same lines as that of PW3 ASI Jawahar Lal. He accompanied PW3 during the investigation. His testimony is not being discussed in order to avoid repetition and for the sake of brevity.
This witness was cross examined by Ld. Defence counsel.
10. PW5 is HC Subhash Chander, No. 1348/NW, PS Ashok Vihar. He deposed, that on 09.08.2017, he was posted at PS Swaroop Nagar as HC. On that day on receipt of DD No. 45A already Ex.PWA2, he alongwith W/HC Surender Kaur RICHA Digitally signed by RICHA SHARMA SHARMA Date: 2021.07.13 15:30:38 FIR No. 231/17 +0530 State Vs. Anita Page 5 of 11 reached at the spot i.e. Near Ganda Nala Road, Near Shiv Mandir, Ibrahimpur, DCM Colony, Delhi, where, they met with HC Sunil, ASI Jawahar Lal, HC Pradeep and W/ASI Deepika and they had apprehended the accused alongwith the one plastic katta of illicit liquor. He further deposed, that he opened the plastic katta and found it containing 40 quarter bottles of illicit liquor of make Raseela Santra Masaledar Desi Sharab for sale in Haryana only. He took out 1 quarter bottles of illicit liquor as a sample and remaining 39 quarter bottles again were put into the said plastic katta. He prepared rukka, which is Ex.PW5/A, bearing his signature at point A and handed over the same to HC Sunil for registration of FIR. Accordingly, HC Sunil went to the PS and got registered the present FIR. After registration of FIR, HC Sunil came back at the spot and handed over the original rukka and copy of FIR to him. He served notice u/s 41.a cr.p.c, which is Ex.PW5/B, bearing his signature at point A to the accused Anita. He released the accused Anita at the spot. He deposited the case property at the malkhana. He also filled M29 form at the spot, which is Ex.PW5/C, bearing his signature at point A. This witness was cross examined by Ld. APP for the State. This witness was also cross examined by Ld. Defence Counsel.
11. PW6 is W/ASI Surender Kaur, No. 1363/OND. She deposed, that on 09.08.2017, she was posted at PS Swaroop Nagar as HC. On that day, she alongwith HC Subhash Chander went to the spot i.e. Near Ganda Nala Road, Near Shiv Mandir, Ibrahim pur, DCM colony, Delhi, where they met with HC Sunil, ASI Jawahar Lal, ASI Deepika and HC Pardeep. They had already apprehended accused Anita alongwith the one plastic katta of illicit liquor. After completion of documentation work, IO released the accused after serving the notice u/s 41.A cr.p.c. She further deposed, that "IO vagera ne counting ki. Kagaj vagera moke par banaye".
This witness was cross examined by Ld. APP for the State.
RICHA Digitally signed by RICHA
SHARMA
SHARMA Date: 2021.07.13 15:30:43
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+0530
State Vs. Anita Page 6 of 11
She admitted in her crossexamination conducted by Ld. APP for the State that: "It is correct that HC Sunil Kumar handed over the custody of accused Anita ( present in the court today and correctly identified by the witness) to me. It is correct that IO requested 3 to 4 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. It is correct that IO opend the plastic katta and found containing 40 quarter bottles of illicit liquor make Raseela Santra Masaledar Desi Sharab for sale in Haryana only. It is correct that IO took out 1 quarter bottle and remaining 39 quarter bottles of liquor again put into the said plastic katta. It is correct that IO prepared pullanda of sample quarter bottle and remaining liquor and sealed with the seal of SK. It is correct that IO filled the M29 form and also put his seal on M29 form. It is correct that IO had seized the recovered case property i.e. illicit liquor vide seizure memo already Ex.PW1/A. It is correct that IO recorded my statement".
This witness was also cross examined by Ld. Defence Counsel.
12. 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.
13. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and have carefully perused the record.
RICHA Digitally signed by RICHA
SHARMA
SHARMA Date: 2021.07.13 15:30:50
+0530
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State Vs. Anita Page 7 of 11
14. 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.
15. Per contra it is argued by the Ld. Counsel for the accused, that non joinder of public witness despite availability casts 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 here is no independent evidence against her.
16. 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, 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.
17. 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 10:00 p.m. and it is admitted fact that public persons were available at the spot, which is evident from the testimony of PWs who deposed that spot was a public place and the IO had requested 45 public persons to join the investigation but none agreed. It was held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join Digitally signed by RICHA SHARMA RICHA SHARMA FIR No. 231/17 Date: 2021.07.13 15:31:03 +0530 State Vs. Anita Page 8 of 11 witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
18. In 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.
19. Another material thing which is required to be discussed about the case of prosecution is that on 09.08.2017, PW1 was on patrolling duty in the area of Beat No. 8, Swaroop Nagar, Delhi, 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, they being on duty was required to enter their 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 Digitally signed by RICHA RICHA SHARMA FIR No. 231/17 SHARMA Date: 2021.07.13 15:31:11 +0530 State Vs. Anita Page 9 of 11 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.
20. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW1. 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.
21. 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 RICHA Digitally signed by RICHA SHARMA SHARMA Date: 2021.07.13 15:31:17 +0530 FIR No. 231/17 State Vs. Anita Page 10 of 11 prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
22. 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 or deposited in malkhana. 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".
23. In view of the above said description and in the absence of any cogent evidence against the accused Anita, she is hereby acquitted for offence under section 33/38 Delhi Excise Act. Case property be confiscated to the state as per rules and the same be destroyed.
Digitally signedRICHA by RICHA SHARMA SHARMA Date: 2021.07.13 15:31:27 +0530 (Richa Sharma) Metropolitan Magistrate07 North District Court/Delhi 13.07.2021 FIR No. 231/17 State Vs. Anita Page 11 of 11