Delhi District Court
Fir No. 403/2018 Ps Khyala State vs . Jeet Kaur on 14 September, 2022
THE COURT OF MS.SHAGUN
METROPOLITAN MAGISTRATE -04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
Jeet Kaur CASE NO. 3231/2019
FIR No. 403/18
P.S-Nangloi
U/S- 33 Delhi
Excise Act, 2009
1. Date of commission of offence: 05.12.2018
2. Name of the Complainant : HC Narender Singh,
PIS No. 28030806 and
other No. 1447/West.
3. Name of the accused, and
his parentage and residence : Jeet Kaur W/o Sh.
Mukesh R/o: H. No. R-
468, JJ Colony, Delhi,
aged about 56 years.
4. Date when judgment : 14.09.2022.
was reserved
5. Date when Judgment : 14.09.2022
was pronounced
6. Offence Complained of : Section 33 of Delhi
or proved Excise Act 2009
7. Plea of accused : Pleaded not guilty
8. Final Judgment : ACQUITTED
FIR No. 403/2018 PS Khyala State Vs. Jeet Kaur
1. BRIEF FACTUAL POSITION:-
1.1 The brief facts of the case of the prosecution are that on 05.12.2018,
at about 02:50PM at H.No. R-467-468, Raghubir Nagar, Delhi within the
jurisdiction of PS- Khyala, accused Jeet Kaur was found in possession of 72 Quarter bottles of illicit liquor for sale in Haryana only without any license, permit or pass and in contravention of the notification issued by Delhi Government. Accused was thereafter, apprehended, case property was seized and the present case was registered.
1.2. After completion of investigation, charge-sheet was filed indicting the accused for commission of the offence U/s 33 of Delhi Excise Act, 2009.
1.3. Charge for the offence U/s 33 of Delhi Excise Act, 2009 was framed against the accused persons on 03.10.2019 to which she pleaded not guilty and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF:
2. 1 The prosecution, in support of its case, has examined 04 witnesses in total, the details whereof are given as under:
S. No. Name of Documents Exhibited Dates of Dates of Prosecution in Evidence. examinati cross-
witnesses. on in examinatio
chief. n.
PW-1 HC Narender (I)Form M29- Ex PW1/A; 05.05.2022 05.05.2022
(II)Seizure Memo-
Ex.PW1/B;
(III)Rukka- Ex PW1/C; &
(IV)Site Plan- Ex PW1/D.
FIR No. 403/2018 PS Khyala State Vs. Jeet Kaur
PW-2 Ct.Manoj - 05.05.2022 05.05.2022
Kumar
PW-3 W/Ct Kranta (I)Arrest Memo- Ex 31.08.2022 31.08.2022
PW3/A; &
(II) Personal Search
Memo-Ex PW3/B
PW-4 HC Dinesh (I)RC - Mark P4/1; &
Yadav (II) Excise Result- 31.08.2022 31.08.2022
Ex.PW4/A
2.2 Since no other witness was left to be examined the prosecution evidence was closed on 31.08.2022.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 After the Prosecution evidence was closed, the entire incriminating evidence was put to accused person in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C. separately wherein she denied the allegations and tendered explanation that he had been falsely implicated and nothing was recovered from his possession and he opted not to lead any DE in their defence.
4. ARGUMENTS:
4.1 . Ld. APP for the State has argued that on a combined reading of prosecution witnesses' testimony, offences under section 33 of Delhi Excise Act, 2009 stand proved beyond reasonable doubt, against the accused persons.
4.2 On the other hand, Ld. counsel for accused persons have argued that there is no legally admissible evidence against the accused persons and that the accused persons have been falsely implicated in the present case. It is FIR No. 403/2018 PS Khyala State Vs. Jeet Kaur further argued that prosecution has failed to prove the case against the accused persons beyond reasonable doubt and hence, the accused persons are entitled to be acquitted.
5. BRIEF STATEMENT OF THE REASONS FOR THE DECISION.
5.1 Vide separate statement of accused person recorded u/s 294 Cr.P.C. the accused admitted the genuineness of copy of FIR, DD No.24A, DD No.9 alongwith the Excise lab report dated 23.03.2021 Ex. A1 to A4 without prejudice to her rights and defence accordingly the witness mention at 4,5 and 6 were dropped from the list of prosecution witnesses.
5. 2 In the present case, the accused person has been charged with the offence U/s 33 Delhi Excise Act,2009 , for being found in possession of illicit liquor without any licence, permit or pass, and in the contravention of the notification issued by the Delhi Government.
5.3 Section 33 of Delhi Excise Act, 2009 states that: whoever, in contravention of provisions of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act-
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale; (d) uses, keeps or has in his possession any material, still, utensil,
implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari;
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term FIR No. 403/2018 PS Khyala State Vs. Jeet Kaur which shall not be less than six months but which may extend to three years with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees.
5.4 This court now proceeds to analyse the evidence adduced in the present case. Firstly regarding the non joining of public witnesses, it is important to revisit the provisions as follows:
Section 100(4) Cr.P.C states that, "before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do"....
5.4.1 Section 37 Cr.P.C. states that, "every person is bound to assist a Magistrate or police officer reasonably demanding his aid-
(a) in the taking or preventing the escape of any other person whom such Magistrate or police Officer is authorized to arrest ; or
(b) in the prevention of suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property".
5.4.2 Section 42 Cr.P.C. states that, "when any person who, in the presence of the police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such persons have been ascertained, he shall be released on his executing a bond, with or without FIR No. 403/2018 PS Khyala State Vs. Jeet Kaur sureties, to appear before a Magistrate, if so required;
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction".
5.4.3 Section 187 IPC states that, " whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both;
and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
5.5 It is not the case of the prosecution that no public witnesses were available and It is stated by PW 1, 2 and 3 that they had requested some passerby to join the proceeding however none was willing to join the same. IO has failed to explain as to why their names and residence were not recorded, or why was any notice not issued to them, as per the aforesaid discussed provisions. When a statutory provision mandates that an independent witness has to be joined in the investigation, the IO is duty bound to comply with the FIR No. 403/2018 PS Khyala State Vs. Jeet Kaur same. At least he should make sincere efforts in this regard. If someone refuses to join the investigation without any justifiable reason, proper notice u/s 187 IPC should be given to him. Merely stating that the public person refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency, more so, when the IO failed to even record the names and details of such person, and failed to take any required steps in terms of Section 37 and 42 of Cr.P.C.
5.5.1 In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" 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".
5.6 It has come in evidence that no public person was joined in investigation despite their availability. No efforts were admittedly made by the IO in this regard. A stereotype statement of non-availability or non-agreement on behalf of witness, will not be sufficient to inspire faith of the Court in the prosecution story.
5.7 Further as per PW1, PW2 the seizure memo has been prepared before the registration of FIR. There is nothing on record to suggest that someone had written the FIR number on the top of seizure memo after registration of FIR. The mention of FIR number on a document purportedly prepared prior to registration of FIR, shows that the proceedings were not conducted in the manner and at the time as claimed by the police.
5.8 Nowhere it has been stated in the testimony of IO PW-4 and also of PW1 that the seal after use on the pullinda containing the liquor allegedly recovered from the accused was handed over to any independent witness.
FIR No. 403/2018 PS Khyala State Vs. Jeet Kaur PW-1 has stated in his examination-in-chief that after sealing of case property, the seal was handed over to PW-2. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness rather the seal was handed over to the same recovery witness. In such a situation, it is fairly evident that the seal was not handed over to any independent witness, but remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out.
5.9 No DD entry regarding departure or arrival for patrolling duty has been proved by producing the relevant register and no duty roster of concerned police officials has been produced in order to show that PW1 and 2 were indeed on patrolling duty on the day of alleged recovery of liquor. This is an important missing link in the version of prosecution.
5.10 Further, MLC of the accused displayed the time of 03.30 pm. However, it is stated by PW-4 that they finally left the spot after 05.00 pm. It is also surprising that the name of women Constable who produced the accused before the doctor is mentioned as W/Constable Preeti and not W/Constable Kranta. It raises serious doubt on the presence of W/Constable Kranta who has otherwise also not been able to depose as to main facts and further strengthen the arguments of the defence of her being a planted witness. Further, there is no mention of any W/Ct. Preeti anywhere throughout the proceedings.
5.11. From the above stated facts the recovery of illicit liquor from the possession of accused becomes doubtful. There are material missing links in version of prosecution and tampering of case property in these circumstances cannot be ruled out. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The standard of proof in criminal cases is not preponderance of probabilities but proof FIR No. 403/2018 PS Khyala State Vs. Jeet Kaur beyond all reasonable doubts. That it is a settled principle of criminal jurisprudence, that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case it is pellucid, that the case of the prosecution suffers from several glaring loopholes Under the circumstances, it would not be safe to convict the accused merely on the basis of testimony of the police officials. Hence, accused, Jeet Kaur w/o Late Mukesh R/o R-467/468 Raghubir Nagar, Delhi is acquitted of the offences punishable u/s 33 of Delhi Excise Act,2009 , on the basis of benefit of doubt.
File be consigned to Record Room after due compliance.
Digitally signed by SHAGUN SHAGUN Date: 2022.09.14 16:07:13 +0530 ANNOUNCED IN THE OPEN (SHAGUN) COURT ON 14.09.2022 METROPOLITAN MAGISTRATE-04 WEST/TIS HAZARI COURTS, DELHI.
Containing 09 pages, all signed by the presiding officer.
Digitally signed by SHAGUN SHAGUN Date: 2022.09.14
16:07:22 +0530
(SHAGUN)
METROPOLITAN MAGISTRATE-04
WEST/TIS HAZARI COURTS,
DELHI.
FIR No. 403/2018 PS Khyala State Vs. Jeet Kaur