Delhi District Court
State vs Anju on 19 July, 2024
Cr Cases 50050/2016
STATE Vs. ANJU
188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act
IN THE COURT OF NEHA PRIYA : ACJM-02 :NEW DELHI
DISTRICT : PATIALA HOUSE COURT : NEW DELHI
Cr Cases 50050/2016
STATE Vs. ANJU
188 /2014 (Vasant Kunj South)
u/s 33 of Delhi Excise Act, 2009
1. Case No. of the case : 50050/2016
2. The date of offence : 08.02.2014
3. The name of the complainant : Ct. Sanjay
4. The name of the accused : Anju
w/o Sh. Rahul
r/o Khasra No. 1229,
Ramlal Sansi ki
Jhuggi, Tara Chand
Colony, K-Block,
Mahipalpur, New
Delhi.
5. The offence complained : Section 33, Delhi Excise
Act, 2009
6. The plea of the accused : Not guilty
7. Date of institution of the case : 29.05.2014
8. The date of order : 19.07.2024
9. The final order : Acquitted
Page no. 1 of 14
Cr Cases 50050/2016
STATE Vs. ANJU
188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act
JUDGMENT
1. This is the prosecution of accused, namely, Anju upon a charge sheet filed by the police station Vasant Kunj (South) under Section 33 of the Delhi Excise Act, 2009.
2. The allegation against the accused is that on 08.02.2014 at around 11:30 a.m. at Khasra No. 1229, Tara Chand Colony, K- Block, Mahipalpur, New Delhi within jurisdiction of PS Vasant Kunj South, accused was found in possession of 337 quarter bottles having label of Rasila Santra Masaledar Desi Sharab for Sale in Haryana only of 180ml without any permit or license and in contravention to provisions of Delhi Excise Act, and thereby she is alleged to have committed an offence punishable u/s 33 of Delhi Excise Act, 2009.
3. After completing the formalities, investigation was carried out by PS Vasant Kunj (South) and a charge sheet was filed against the accused. Charge was framed against the accused u/s 33 of Delhi Excise Act, 2009 to which she pleaded not guilty and claimed trial.
4. Vide separate statement dated 05.01.2019, accused admitted FIR along-with certificate u/s 65B IEA, Ex. C1(colly), DD No. 23A, Ex. C2 and chemical examination report, Ex. C3, u/s 294 Cr.P.C.
5. In order to substantiate its case, prosecution examined six witnesses.
Page no. 2 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act
6. PW-1 SI Sunil Kumar deposed on oath that "On 08.02.2014, I was posted as Constable at PS Vasant Kunj (South). On that day, I along-with Ct. Sanjay were on patrolling duty and our duty were from 08:00 A.M. to 08:00 P.M. at motorcycle no. 24. While patrolling, we reached at Tara Chand Colony at about 11:30 A.M., we had seen that one woman who was wife of son of Ramlal Sansi and she carried a plastic sack on her head. Upon suspicion, we told her to stop but she did not pay any heed and started brisk walking towards her jhuggi and threw said sack inside said jhuggi and fled away from the spot. As culprit was a woman, so we could not physically apprehend her. Thereafter, we went inside the jhuggi and checked them and found illicit liquor inside that. Thereafter, Ct. Sanjay informed to the Duty Officer of the police station and HC Krishan Kumar reached at the spot alone and we handed over recovered case property to him and also narrated the entire incident to him. Thereafter, IO requested 4-5 public persons to join the investigation, but they refused to join us by citing their personal reasons and went from there without disclosing their names and addreses. Due to paucity of time, the written notices could not be served to them. On checking we found 100 quarter bottles of Raseela Santra Masaledar Desi Shraba 'For sale in Haryana only' 180ml each in the sack which was carried by accused. On checking other two sacks, we found 150 quarter bottles in second sack and 87 quarter bottles in third sack having same label and quantity. Thereafter, IO took out one sample from each sack as a Page no. 3 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act sample and prepared pullanda and sealed with the seal of "KK". Remaining case property was kept in same sack and sealed with the same seal. IO had given serial no. S1 to S3 to the samples and serial no. A1 to A3 to the sacks. Thereafter, IO seized the case property vide seizure memo which is now Ex. PW-1/A bearing my signatures at point A. IO prepared Form M-29 and handed over me seal. IO prepared tehrir on the basis of statement of Ct. Sanjay and handed over to Ct. Sanjay for registration of FIR and he went to the PS and got registered the FIR. Thereafter, he came back to the spot and handed over copy of FIR and tehrir to the IO. Thereafter IO prepared site plan at the instance of Ct. Sanjay which is now Ex. PW-1/B. Meanwhile, HC Pramod from Excise Department came at the spot and stated to the IO that he also had same information. Thereafter, we came back to the police station and handed over the seal to MHCM. IO recorded my statement". Said witness correctly identified accused. Vide destruction confiscation order Ex. P1, Ex. P2 and Ex. P3, the case property of the present case has already been destroyed and sample which was taken out during destruction of the case property has been burnt. Said witness was duly cross- examined by ld. Counsel for accused.
7. PW-2 HC Sanjay Singh deposed on oath that "On 08.02.2014, I was posted as Constable at PS Vasant Kunj (South). On that day, I along-with Ct. Sanjay were on patrolling duty and our duty were from 08:00 A.M. to 08:00 P.M. at motorcycle no. 24. While Page no. 4 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act patrolling, we reached at Tara Chand Colony at about 11:30 A.M., we had seen that one woman who was wife of son of Ramlal Sansi and she carried a plastic sack on her head. Upon suspicion, we told her to stop but she did not pay any heed and started brisk walking towards her jhuggi and threw said sack inside said jhuggi and fled away from the spot. As culprit was a woman, so we could not physically apprehend her. Thereafter, we went inside the jhuggi and checked them and found illicit liquor inside that. Thereafter, Ct. Sanjay informed to the Duty Officer of the police station and HC Krishan Kumar reached at the spot alone and we handed over recovered case property to him and also narrated the entire incident to him. Thereafter, IO requested 4-5 public persons to join the investigation, but they refused to join us by citing their personal reasons and went from there without disclosing their names and addreses. Due to paucity of time, the written notices could not be served to them. On checking we found 100 quarter bottles of Raseela Santra Masaledar Desi Shraba 'For sale in Haryana only' 180ml each in the sack which was carried by accused. On checking other two sacks, we found 150 quarter bottles in second sack and 87 quarter bottles in third sack having same label and quantity. Thereafter, IO took out one sample from each sack as a sample and prepared pullanda and sealed with the seal of "KK". Remaining case property was kept in same sack and sealed with the same seal. IO had given serial no. S1 to S3 to the samples and serial no. A1 to A3 to the sacks. Thereafter, IO seized the case property Page no. 5 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act vide seizure memo which is now Ex. PW-1/A bearing my signatures at point A. IO prepared Form M-29 and handed over me seal. IO prepared tehrir on the basis of statement of Ct. Sanjay and handed over to Ct. Sanjay for registration of FIR and he went to the PS and got registered the FIR. Thereafter, he came back to the spot and handed over copy of FIR and tehrir to the IO. Thereafter IO prepared site plan at the instance of Ct. Sanjay which is now Ex. PW-1/B. Meanwhile, HC Pramod from Excise Department came at the spot and stated to the IO that he also had same information. Thereafter, we came back to the police station and handed over the seal to MHCM. IO recorded my statement". Said witness correctly identified accused. Said witness was duly cross-examined by ld. Counsel for accused.
8. PW-3 HC Dinesh Kumar deposed on oath that "On 17.02.2014, I was posted as Constable at PS Vasant Kunj (South). On said date, as per direction of IO/HC Kishan Kumar, I had received three samples from the MHCM which were duly sealed with the seal of "KK" and the seal was in intact condition. I went to Excise Department, ITO and deposited the same vide RC No. 26/21/14. Till the time when case property was in my possession, no tampering was done by me or anyone else. After depositing the samples, I had taken receiving and same was deposited to MHCM. IO recorded my statement". Said witness was not cross-examined by ld. Counsel for accused despite opportunity.
Page no. 6 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act
9. PW-4 W/HC Manju deposed on oath that "On 12.02.2014, I was posted at W/Ct. at PS Vasant Kunj (South). On that day, I joined investigation along-with HC Kishan Kumar/IO and went to Jhuggi Khasra No. 1229, Tara Chand Colony, K-Block, Mahipalpur from where IO arrested accused Anju after telling her about the grounds of her arrest. I made personal search of accuse but nothing was recovered from her personal search. Accused Anju was in my physical custody and I medically examined her and her six months old child from SJ Hospital. Thereafter, IO produced accused Anju before the court and send her JC. IO recorded my statement. Arrest memo and personal search memo of accused is now Ex. PW-4/A and Ex. PW-4/B respectively, both bearing my signatures at point A. IO recorded disclosure statement of accused which is now Ex. PW- 4/C bearing my signatures at point A". Said witness correctly identified the accused. Said witness was not cross-examined by ld. Counsel for accused despite opportunity.
10. PW-5 ASI Krishan Pal deposed on oath that "On 16.03.2014, I was posted as HC at PS Vasant Kunj (South). On that day, further investigation of the present case was handed over to me and I received the case file from MHCR and gone through the same. As per previous investigation, samples have already been deposited for chemical examination and entire investigation has already been done by the previous IO. During my investigation, I collected chemical examination report and placed on record. I prepared the Page no. 7 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act chargesheet and filed before the court". Said witness correctly identified the accused. Said witness was not cross-examined by ld. Counsel for accused despite opportunity.
11. PW-6 SI Krishan Kumar deposed on oath that "On 08.02.2014, I was posted as Head Constable at PS Vasant Kunj (South). On that day, I received DD No. 23A and reached at the spot i.e. Khasra No. 1229, Ramlal Sansi ki Jhuggi, Tara Chand Colony, K-Block, Mahipalpur, where I met with Ct. Sanjay and Ct. Sunil and Ct. Sanjay handed over me three sacks. I made formal interrogation from both police officials and came to know that accused had fled away from the spot and being beat officer, they were aware name of accused. Thereafter, I made efforts to join public persons but none were ready to join us. I checked all three sacks and on checking we found 100 quarter bottles of Raseela Santra Masaledar Desi Shraba 'For sale in Haryana only' 180ml each in the sack which was carried by accused. On checking other two sacks, we found 150 quarter bottles in second sack and 87 quarter bottles in third sack having same label and quantity. Thereafter, I took out one sample from each sack as a sample and prepared pullanda and sealed with the seal of "KK". Remaining case property was kept in same sack and sealed with the same seal. I had given serial no. S1 to S3 to the samples and serial no. A1 to A3 to the sacks. Thereafter, I seized the case property vide seizure memo which is already Ex. PW-1/A bearing my signatures at point Page no. 8 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act C. I prepared Form M-29 now Ex. PW-6/A bearing my signatures at point A. After using the seal, it was handed over to Ct. Sunil. HC Pramod from Excise Department had also visited the spot and informed me that he has also same information. I recorded statement of Ct. Sanjay and I prepared tehrir on the basis of statement of Ct. Sanjay and handed over to Ct. Sanjay for registration of FIR and he went to the PS and got registered the FIR. Thereafter, he came back to the spot and handed over copy of FIR and tehrir to the IO. Thereafter I prepared site plan at the instance of Ct. Sanjay which is already Ex. PW-1/B bearing my signatures at point A. I made efforts to search the accused Anju but went in vain.
Thereafter, we came back at the police station with the case property and deposited the same in malkhana. I recorded statement of police witnesses u/s 161 Cr.P.C.
On 12.02.2014, I along-with W/Ct. Manju visited jhuggi of accused where she was found with her six months old child and her husband. I disclosed her about grounds of arrest and in the presence of her husband, she was arrested vide arrest memo already Ex. PW- 4/A and personal search memo already Ex. PW-4/B, both bearing my signatures at point B. I also recorded disclosure statement of accused already Ex. PW4/C bearing my signatures at point B. During my investigation, I sent samples to Excise Department through Ct. Dinesh and recorded his statement and statement of MHCM. I recorded statement of W/Ct. Manju regarding joining of investigation by her during the arrest of accused. Thereafter, I was Page no. 9 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act transferred so I deposited my case file to MHCR. My rukka is now Ex. PW-6/B bearing my signatures at point A". Said witness correctly identified the accused. Said witness was duly cross- examined by ld. Counsel for accused.
12. Prosecution evidence stood closed vide order dated 28.05.2024.
13. After closure of prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C wherein all the incriminating circumstances were put to her which she denied. She pleaded false implication and also false plantation of the case property upon her. She chose not to lead defence evidence.
14. Thereafter, final arguments were heard on behalf of accused as well as Ld. APP for State, Sh. Bhanu Pratap Singh.
15. In the present case, in order to bring home the guilt of the accused, the prosecution is required to establish beyond reasonable doubt that the accused was in possession of the illicit liquor.
16. Although sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the accused has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus for the possession of which he is unable to account satisfactorily, this presumption is rebuttable. In the instant case, after going through Page no. 10 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act the complete evidence and records of this case, I am of the view that the accused has successfully rebutted the presumption mentioned above and therefore, deserves to be acquitted in this case for the reasons stated below.
17. Firstly, in the present case, no public witness has been associated with the investigation. No independent witness had been joined either at the time of arrest of the accused or recovery of illicit liquor. The only witnesses to the recovery being police officials, such recovery does not inspire confidence. PW-1, PW-2 and PW-6 have deposed that request was made to some public persons to join the investigation, however, none agreed and left the place without disclosing their names and addresses. This explanation tendered by the prosecution witness does not seem to be tenable as neither the details of those public persons have been brought on record nor any legal action was taken against those persons (under relevant sections of law) who declined to assist the police in investigation. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings, when they were available, brings into question the credibility of the prosecution case, reflects adversely on the sequence of events put forward and creates reasonable doubt on the prosecution story. Thus, the chances of false implication, at the Page no. 11 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act instance of the police, cannot be ruled out. Guidance is sought from the case of Anoop Joshi v. State1 wherein it was held that:
"It is repeatedly laid down by this Court 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 shops were open and one or two shop-keepers 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 rigors 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".
18. Secondly, there is nothing on record to prove that the seal with which the plastic sack containing illicit liquor was sealed, was handed over to any independent witness after use. Admittedly no handing over memo was prepared. During evidence of aforesaid prosecution witnesses, no sample was produced due to occurrence of fire incident in the malkhana. In such circumstances, possibility of tampering with the contents of sealed pullanda cannot be ruled out. It also becomes impossible to establish the connection between the samples, and alleged recovery from the accused. Benefit thereof must go to the accused in light of the judgment of Safiullah v. State2
19. Further, the present case is based entirely on the alleged 1 1992 (2) C.C. Cases 314 (HC).
2 1992 SCC OnLine Del 516.
Page no. 12 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act recovery of illicit liquor from the possession of the accused by police officials, namely, PW-1 SI Sunil Kumar and PW-2 HC Sanjay Singh, who were on patrolling duty at the given time and place, as per the prosecution story. The police officials are under statutory duty to mark their arrival and departure entries in the registers. In the present case, no departure or arrival entry has been proved by the prosecution. In absence of the departure and arrival entry of the police officials, their presence at the spot cannot be believed. Reliance can be placed upon the case of Rattan Lal v. State3 wherein it has been observed:
"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. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
20. Lastly, the site plan Ex. PW-1/B and seizure memo Ex. PW- 1/A regarding the case property i.e. illicit liquor bear the number of FIR. The prosecution has not offered any satisfactory explanation as to how number of the FIR has appeared on the site plan Ex. PW-1/B and seizure memo Ex. PW-1/A, which were allegedly prepared on the spot before registration of the FIR. This implies that either the FIR was registered prior to the alleged recovery or number of the 3 1987 (2) Crimes 29.
Page no. 13 of 14 Cr Cases 50050/2016 STATE Vs. ANJU 188 /2014 (Vasant Kunj South), u/s 33 of Delhi Excise Act said FIR was inserted in this document after its registration. In both the situations, it seriously impinges the credibility and the veracity of the manner of recovery from the accused, as alleged by the prosecution. Guidance is sought from the case of Lalji Shukla v. State4.
21. All of the above infirmities expose serious loop holes in the prosecution story and reflects adversely on the veracity of the charges against the accused. The prosecution has failed to prove its case beyond reasonable doubt. Hence accused Anju w/o Sh. Rahul is acquitted of the offence under Section 33 Delhi Excise Act. He is set at liberty. Digitally signed by NEHA NEHA PRIYA Announced in the open court PRIYA Date:
2024.07.19 on 19.07.2024. 16:29:39 +0530 (NEHA PRIYA) Additional Chief Judicial Magistrate-02 New Delhi District/PHC 19.07.2024 It is certified that this judgment contains 14 pages and each page bears my signatures. Digitally signed by NEHA NEHA PRIYA Date:
PRIYA 2024.07.19
16:29:45
+0530
(NEHA PRIYA)
Additional Chief Judicial Magistrate-02
New Delhi District/PHC
19.07.2024
4 1999 SCC OnLine Del 884.
Page no. 14 of 14