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Delhi District Court

State vs . Nayab Hussain @ Bhandari on 30 September, 2022

                       IN THE COURT OF SH. RAHUL VERMA,
     METROPOLITAN MAGISTRATE­07, SOUTH EAST DISTRICT,
                SAKET COURTS, NEW DELHI.

                                      FIR No. 52/2020
                                    PS - Sunlight Colony
                                  U/s - 33 Delhi Excise Act

                           State Vs. Nayab Hussain @ Bhandari


                                      JUDGMENT

Part A - The list at a glance A. Serial No. of the Case : 2407/2021 B. Date of Commission of offence : 09.03.2020 C. Date of Institution of Case : 18.03.2021 D. Name of the Complainant : SI Bharam Prakash E. Name of Accused : Nayab Hussain @ Bhandari S/o Shri Nawab R/o Jhuggi No.323/07, Hari Nagar Ashram, New Delhi F. Offence charged of : 33 Delhi Excise Act G. Plea of the accused : Pleaded not guilty H. Final Order : Acquitted I. Judgment reserved on : 26.09.2022 J. Date of judgment : 30.09.2022 State Vs. Nayab Hussain @ Bhandari; FIR No. 52/20 PS Sunlight Colony Page No. 1 of 7 Part B - A brief statement of reasons for the decision (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973.)

1. It is the case of the prosecution that on 09.03.2020 at about 09.00 PM at Jhuggi No.323/7, Hari Nagar Ashram, New Delhi within the jurisdiction of P.S. Sunlight Colony, accused was found in possession of 144 quarter bottles of illicit liquor of 180 ML each, bearing label of "SPECIAL SANTRA PROOF 50 CBSO­3 NETW QUALITY 180 ML, MASALEDAR DESI SHARAB FOR SALE IN HARYANA ONLY", for transport and sale purpose, which were without license and permit. FIR was accordingly registered against the accused for commission of an offence punishable u/s. 33 Delhi Excise Act (hereinafter referred to as "the Act").

2. After the completion of investigation, charge sheet qua the accused was filed under Section 33 Delhi Excise Act. Documents were furnished to the accused in compliance of Section 207 of Criminal Procedure Code (hereinafter, referred to as 'Cr.P.C.'). On the basis of material on record, charge under Section 33 Delhi Excise Act was framed upon the accused, to which he pleaded not guilty and claimed trial.

3. In order to substantiate its case, prosecution examined PW­1 SI Bharam Prakash who deposed that upon receipt of an information about the sale of illicit liquor he alongwith Ct. Ram Kesh went to the jhuggi of the accused and found one katta containing 144 quarter bottles. He proved his signatures on seizure memo Ex. PW­1/A, Form M29 Ex. PW­1/B, rukka Ex. PW­1/C. He correctly identified the case property Ex. P­1 and the accused. Prosecution further examined PW­2 who deposed on the similar lines as of PW­1. Prosecution further examined PW­3 ASI Omender who deposed about the various stages of investigation conducted by him. He further deposed that he arrested the accused State Vs. Nayab Hussain @ Bhandari; FIR No. 52/20 PS Sunlight Colony Page No. 2 of 7 vide arrest memo Ex. PW­2/A, conducted his personal search vide memo Ex. PW­2/B and prepared the site plan Ex. PW­3/A.

4. Vide a separate statement dated 27.05.2022 the accused admitted the genuineness of following documents, which were exhibited as under :­

(a) FIR (without contents) with certificate u/s. 65B IEA in the present case Ex.PA­1 (colly).

(b) Excise CFSL Result Ex. PA­2.

5. Prosecution evidence was closed vide order dated 01.09.2022.

6. Statement of accused u/s 313 r/w 281 of Cr.P.C was recorded on 06.09.2022 wherein the accused denied the incriminating evidences appearing against him. The accused refused to lead defence evidence.

7. Subsequently, final arguments from the counsel for accused and Ld. APP for the State were heard.

8. In the present matter, charge was framed against the accused under Section 33 Delhi Excise Act. It has been alleged by the prosecution that the accused was found in possession of 144 quarter bottles of illicit liquor of 180 ML each, without license and permit. In order to prove this allegation, the prosecution has examined 03 police witnesses. However, no independent witness has been examined by the prosecution. This leads to an adverse inference against the entire recovery. It must be noted that the recovery, arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. In the absence of any independent witness having been joined in the investigation, possibility of false implication of the accused by the police in the present case cannot be ruled out. Reliance is placed in this regard on the judgment of Roop Chand vs. SIn view of the above discussion,tate of Haryana, 1999 (1)C.L.R 69, wherein it was State Vs. Nayab Hussain @ Bhandari; FIR No. 52/20 PS Sunlight Colony Page No. 3 of 7 observed by Hon'ble High Court of Punjab & Haryana that:

"4. ...It is well settled principle of the law that the investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non−joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".

9. Considering the aforesaid observations made by the Hon'ble High Court, the omissions/ failure on the part of investigating agency to join independent public witnesses raises doubts on the prosecution story.

10. It is also pertinent to note that the police personnel who apprehended the accused, did not bring on record any documentary evidence or the DD entries to State Vs. Nayab Hussain @ Bhandari; FIR No. 52/20 PS Sunlight Colony Page No. 4 of 7 prove their departure and arrival time so as to show that they were indeed on duty in the area in question at the relevant time. In this regard, it is pertinent to take note of Chapter 22 Rule 49 of Punjab Police Rules, 1934, which provides as under: In view of the above discussion, 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 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.

11. In the present case, the prosecution has not proved the compliance of the above said provision as the DD entry vide which all the police personnel had left and arrived at the PS has not been brought on record. In Rattan Lal v. State, (1987) 32 DLT 1, Hon'ble High In view of the above discussion,Court of Delhi held that:

"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive."

12. Since the public persons in the present case were not joined in the investigation, the departure and the arrival entries of the police officials who State Vs. Nayab Hussain @ Bhandari; FIR No. 52/20 PS Sunlight Colony Page No. 5 of 7 apprehended the accused with the case property while on patrolling duty becomes a vital piece of evidence. However, the absence of departure and arrival entries raises suspicion on the very presence of police personnel on the spot.

13. Here, it must also be noted that several discrepancies and inconsistencies are apparent from the record. As per the testimony of witnesses, the seizure memo Ex. PW­1/A was prepared before the registration of FIR. However, perusal of the said documents shows that it bears the FIR number. It raises serious doubts on the authenticity of the documents relied upon by the prosecution. Further doubts arise on the prosecution version from the fact that while PW­1 deposed in his testimony that only the accused was present at the time of the raid in the jhuggi, it was deposed by PW­2 that children of the accused were also present. Further, though it was deposed by the police witnesses that raiding party was formed prior to the raid in the jhuggi of the accused, no document or entry showing forming of raiding party has been placed on record. These discrepancies raise serious doubts on the authenticity of the documents relied upon by the prosecution, and hence the possibility of documents having been prepared later on in the Police Station and the possibility of implanting of the alleged liquor upon the accused cannot be ruled out.

14. All the above discussed infirmities in the prosecution case reflect adversely on the veracity of prosecution case, the benefit whereof must go to the accused. Here, it would be beneficial to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh v. State of Punjab, AIR 1957 SC 637, wherein it was observed that "considered as a whole, the prosecution story may be true; but between "may be true" and "must be true" there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted." Again, in Jagdish Prasad vs State (Govt Of NCT Of Delhi), (2011) 184 DLT State Vs. Nayab Hussain @ Bhandari; FIR No. 52/20 PS Sunlight Colony Page No. 6 of 7 285, the Hon'ble High of Delhi had observed that "it is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt."

15. In view of the above discussion, this court holds that the prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accordingly, accused Nayab Hussain @ Bhandari is hereby acquitted for the offence punishable under section 33 Delhi Excise Act.

16. Copy of this judgment be given to both the sides free of cost.

Announced in open court                                      RAHUL by RAHUL
                                                                   VERMA
                                                             VERMA Date: 2022.09.30
on 30.09.2022                                                      16:06:13 +0530


                                                           (RAHUL VERMA)
                                                        Metropolitan Magistrate­07,
                                                       South East, Saket, New Delhi




State Vs. Nayab Hussain @ Bhandari; FIR No. 52/20   PS Sunlight Colony       Page No. 7 of 7