Delhi District Court
State vs . Sunil on 21 January, 2019
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MAGISTRATE-01 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.255/12
PS Prasad Nagar
State Vs. Sunil
U/s 33 Delhi Excise Act
CIS No.294797/16
CNR No. DLCT-02-004860/15
JUDGMENT
(a) Sr. No. of the Case 297797/16
(b) Date of offence 24.11.2012
(c) Complainant HC Amit Kumar
(d) Accused Sunil S/o. Late Sh. Krishan Lal, R/o. House
No. 7029/2, M.R.N Nagar, Delhi.
(e) Offence 33 Delhi Excise Act
(f) Plea of accused Pleaded Not guilty
(g) Date of Institution 17.01.2015
(h) Final Order Acquitted
(i) Date when judgment was 21.01.2019
reserved
(j) Date of judgment 21.01.2019
1. The present FIR was registered at PS Prasad Nagar against the accused namely Sunil for the offence U/s 33 Delhi Excise Act.
2. The allegations against the accused that are on 24.11.2012 at about 07:00 pm at place backside MCD Primary School Gali No. 2 MRN Nagar, Karol Bagh, accused was found in possession of 07 cartoons containing 48 quarter bottles of bagpiper gold whiskey in FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.1 of 14 cartoon no. 1, 48 quarter bottles of Royal Stag Reserve Whisky in cartoon no. 2, 24 half bottles of Seven Knight Whiskey in cartoon no. 3, 24 half bottles of Seven Knight Whisky in cartoon no. 4, 12 bottles of kingfisher extra strong premium beer in cartoon no. 5, 12 bottles of Haywards 5000 beer in cartoon no. 6 and 6 half bottles of seven knight whiskey in cartoon no. 7 without any license, permit or pass and in contravention of the notification issued by Delhi Govt. and thereby committed an offence punishable under section 33 Excise Act.
3. After completion of the investigation, charge-sheet was filed and the accused was supplied with copies of challan alongwith annexures in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for the offence u/s 33 Delhi Excise Act was put to the accused vide order dated 07.05.2015, passed by Ld. Predecessor to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, prosecution has examined 4 witnesses.
5. PW-1 is HC Anil Kumar, who deposed that on 24.11.2012, he was posted as a Head Ct. at P.S. Prasad Nagar, that he along with Ct. Jitender and Ct. Krishan Pal was on patrolling duty in the beat area No. 4, that at about 7:00 pm when they reached in front of rear gate of MCD Primary School, Gali No. 2, Mata Rameshwari, Nehru Nagar, Delhi, they saw that accused was placing the cardboard pettis on the place near the gate inside the school, that after seeing them, he came outside, that when they tried to make enquiries from him, he ran away from the spot, that they checked the said petties and found illicit liquor inside the said petties, that he asked four five passerby to join the investigation but none agreed and left the place without disclosing their names and addresses, that Head Mistress of the said Primary School was called at the spot through Ct. Krishan Pal and in her presence, the said seven petties were checked, that FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.2 of 14 on the first carton it was written, "Bagpiper Gold Whiskey" and it was containing 48 quarter bottles, and on the second carton it was written, "Royal Stag Reserve Whiskey"
and it was found containing 48 quarter bottles, that on third and fourth carton it was written, "Seven Knight Whiskey" and each were containing 24 half bottles, on fifth carton it was written, "Kingfisher Extra Strong Premium Beer" and it was found containing 12 Beer Bottles, that on carton No. 6 it was written, "Hayward 5000 Beer"
and it was found containing 12 bottles, on 7 th carton it was written,"Seven Knight Whiskey" and it was found containing 6 half bottles, that all the cartons were given Sr. No. 1 to 7, that they took out two pieces of bottles/half/quarter bottles from each carton as samples, that the the said samples were sealed with the seal of AK, that each petti/carton was put in separate plastic katta and the said kattas were sealed with the seal of AK, that he seized the whole case property vide seizure memo Ex.PW1/A, that Form M-29 Ex.PW1/B was filled at the spot, that seal after use was handed over to Ct. Jitender, that he prepared rukka Ex.PW1/C and sent Ct. Krishan Pal for registration of the case, that after registration of the case, investigation was handed over to second IO HC Raghu Raj, that HC Raghu Raj along with Ct. Krishan Pal came at the spot and second IO prepared site plan Ex.PW1/D at his instance, that he handed over the case property and relevant documents to the second IO. Thereafter, MHC(M) appeared and produced 7 sealed pullandas each sealed with the seal of AK and bearing the particulars present case, that pullanda one is opened with the permission of the court, that on opening the same 46 quarter bottles of illicit liqour bearing the label of "Bagpiper Gold Whiskey" are taken out and shown to the witness, that witness correctly identified the same as recovered from the accused and seized by the IO, that pullanda two is opened with the permission of the court, that on opening the same 46 quarter bottles of illicit liquor bearing the label of "Royal Stag Reserve Whiskey" are taken out and shown to the witness, that witness correctly identified the same as recovered from the accused and seized by the IO, that pullanda three is opened with the permission of the court, that on opening the same 22 half bottles of illicit liqour bearing the label of "Seven Knight Whiskey" are taken out and shown to the witness, that witness correctly identified the same as recovered from the accused and seized by FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.3 of 14 the IO Pullanda four is opened with the permission of the court, that on opening the same 22 half bottles of illicit liquor bearing the label of "Seven Knight Whiskey" are taken out and shown to the witness, that witness correctly identified the same as recovered from the accused and seized by the IO, that pullanda five is opened with the permission of the court, tha on opening the same 10 bottles of illicit liqour bearing the label of "Kingfisher Extra Strong Premium Beer" are taken out and shown to the witness, that witness correctly identified the same as recovered from the accused and seized by the IO, that pullanda six is opened with the permission of the court, that on opening the same 10 bottles of illicit liquor bearing the label of "Hayward 5000 Beer"
are taken out and shown to the witness, that witness correctly identified the same as recovered from the accused and seized by the IO, that pullanda seven is opened with the permission of the court, that on opening the same 4 half bottles of illicit liquor bearing the label of "Seven Knight Whiskey" are taken out and shown to the witness, that witness correctly identified the same as recovered from the accused and seized by the IO, that case property is Ex. P1 (Colly)
6. In the cross examination PW-1 deposed that he left the PS at about 05:00 pm at foot, that he do not remember the number the DD of his departure, that the spot is a residential area and there several shops and houses near the spot and people were coming and going there, that no notice was given to the persons who refused to join the investigation, that seizure memo and Form M-29 was prepared before sending the rukka, that he handed over the seal to Ct Jitender before preparing the rukka and he returned the same to MHC(M), that no handing over or taking memo of the seal was prepared, that he send the rukka at about 10:00 pm and it was returned back after 20 minutes, that during that period he has not prepared any documents, that site plan was prepared at his instance, however, he do not remember whether he has signed or not, that it was natural dark at the spot, however, there was light of street lights, that he finally left the spot at about 11:00 pm. He denied that no recovery was effected from the possession of the accused or that he has falsely implicated the name of accused as other cases of similar nature are registered against him, that he is deposing falsely.
FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.4 of 14
7. PW-2 is ASI Pratap Singh, who deposed that on 24.11.2012, he was posted at PS Prasad Nagar as Duty officer, and his duty hours were from 09:00 am to 11:00 pm, that on that day, at about 10:25 pm, he received the rukka through Ct. Krishan Pal sent by HC Anil Kumar, that on the basis of which he got registered FIR Ex.PW2/A, that the FIR was got registered through computer installed at PS Prasad Nagar, that the said computer was under his lawful control at that time and the FIR Ex. PW-2/A was registered on the basis of tehrir, that the computer was being used in routine manner for similar purpose, after registration of FIR Ex.PW2/A, that he also made endorsement on rukka which is Ex. PW-2/B, that he has also issued certificate under section 65B Evidence Act qua FIR Ex.PW-2/C.
8. In the cross examination, PW-2 denied that he has not received any rukka and the FIR is ante-date and ante-time, that he is deposing falsely.
9. PW-3 is HC Raghuraj, who deposed that on 24.11.2012, investigation of the present case was assigned to him, that he reached at the spot, that in the meantime, Ct. Krishan also reached at the spot and handed over the copy of FIR and original rukka for further investigation, that while he reached at the spot HC Anil Kumar and Ct. Jitender were present there along with the seized case property, that HC Anil Kumar handed over the case property, seizure memo and other documents to him, that he prepared site plan at the instance of HC Anil Kumar Ex. PW-1/D, that he recorded the statement of HC Anil, Ct. Krishan Pal and Ct. Jitender, that he along with HC Anil, Ct. Jitender and Ct. Krishan return back to the PS and case property was deposited in the malkhana, that he searched for the accused. Thereafter, on 29.11.2012, he sent seven sample pullindas all sealed with the seal of AK to the Excise Lab from the Malkhana through Ct. Vinod vide RC No. 112/21/12 Ex.PW-3/A along-with form M-29 and original RC for depositing the same at Excise lab, ITO, that till the time, the sample pullindas were handed over to Ct. Vinod, the same were intact and were not tempered with, that he recorded the statement of Ct. Vinod, that the investigation of the present case was FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.5 of 14 assigned to SI Gaurav, that he accordingly, deposited the present case with MHC(R) and he was discharged from the present case, that case property is Ex. P-1 (colly).
10. In the cross examination, PW-3 deposed that he prepared the site plan at about 11:00 pm, that he do not remember whether he has obtained the signature of HC Anil on the site plan, that there was natural dark at the spot, however, there were light from street light at the spot, that they finally left the spot at about 12:00 am (midnight), that the case property was brought to the PS in the Tempo called from the PS, however, he do not remember its registration number. He denied that he did not reach at the spot and did not join the investigation. He further deposed that nothing was recovered and seized in his presence. He denied that he is deposing falsely being official witness.
11. PW-4 is SI Gaurav Kumar, who deposed that on 10.10.2012, the investigation of the present case was assigned to him, that he received the present case file from the MHC(R), that accused surrendered before the concerned. Ld. MM, that he obtained permission from the Hon'ble Court to interrogate the accused, that he interrogated the accused recorded his disclosure statement Ex. PW-4/A, that he arrested the accused vide arrest memo Ex. PW-4/B and conducted his personal search vide memo Ex. PW- 4/C. Thereafter, accused was sent to JC, that after collecting from the Excise Lab he prepared the chargesheet and filed the same before the Hon'ble Court for judicial verdict.
12. In the cross examination, PW-4 denied that he did not carried out the fair investigation in the present case. He deposed that nothing was recovered and seized in his presence. He denied that he is deposing falsely being official witness.
13. It is pertinent to note that vide separate statement dated 08.01.2019 accused has admitted the genuineness and correctness of report of chemical examiner dated 11.12.2012 Ex. PA-1, entry no. 112/21/12 dated 29.11.2012 Ex. PA-2 and register no.
19. Accordingly, witnesses namely Amit Pal (Assistant Chemical Examiner), Brijender FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.6 of 14 Singh (Deputy Chemical Examiner), MHC(M) Devinder Kumar and Ct. Vinod, were dropped from the list of witnesses vide order dated 08.01.2019.
14. It is pertinent to note that PW Ct. Jitender was dropped from the list of witnesses vide separate statement dated 10.08.2017 of Ld. APP as one witness namely HC Anil Rattan has examined in this regard.
STATEMENT OF ACCUSED
15. PE was thereon closed by the Court and statement of accused was recorded u/s 281/313 CrPC vide order dated 18.01.2019, wherein the accused denied all the incriminating evidence against him and stated that he has been falsely implicated in this case. Since, the accused did not wish to lead any defence, hence, matter was fixed for final arguments straightaway.
16. Final arguments heard. File perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
17. In the case in hand the accused Sunil is charge for the offence u/s 33 Delhi Excise Act.
18. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant/ state in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed as follows:-
FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.7 of 14
19. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. Perusal of the record shows that the place of apprehension of accused alongwith illicit liquor was a public place/residential area and there were several shops situated near the spot despite that no efforts made by the IO to join the public/independent witness in the case in hand. It is apparent from the testimony of PWs that all the proceedings regarding seizure and sealing of case property was done by police officials who were posted in the same police station and not by any independent witness which makes it highly probable that the entire proceeding were conducted at the police station, that the case property was tampered with and that the alleged recovery was planted upon the accused at the police station.
20. PWs have categorically deposed about presence of independent public witnesses however, no sincere efforts have been made to join them in investigation.
21. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining independent witnesses.
22. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
23. 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 place was residential area and one or two persons from the locality could have been persuaded to join the raiding party to witness the recovery being FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.8 of 14 made from the appellant. In case any of the public persons had declined to join the raiding party, the police could have later on taken legal action against such persons 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".
24. In case law 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".
25. Considering the aforesaid observations made by the Higher Courts, the omissions /failure on the part of investigating agency to join independent public witnesses creates reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
26. Furthermore, the testimony of PWs shows that seizure memo Ex. PW-1/A, Form M-29 Ex. PW-1/B was prepared before sending the rukka. However, perusal of the said document clearly shows that the FIR number and other particulars of the present case are mentioned on the said document. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those document which were prepared prior to the registration of the case thereby substantiating the defence version that the FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.9 of 14 alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
27. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.10 of 14 the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
28. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
29. It is pertinent to mention here that investigation of the IO is silent regarding the source of liquor and IO had not inquired from the accused about the source of liquor recovered from the accused for the reasons best known to him.
30. Further, perusal of the record reveals that witnesses has not filed DD entry of their arrival and departure. Prosecution witnesses have failed to prove documentary evidence or the DD entries to show their movement from the police station for patrolling or investigation of the case.
31. Regarding the value of making DD entry it is worth mentioning that as per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under :-
22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
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 FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.11 of 14 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.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 19872 (2) Crimes 29 the Hon'ble Delhi High Court "Wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the court 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."
32. In the present case, the above said provision appears to have not been complied with by prosecution. These omissions on the part of the prosecution create doubt on the version that the accused was personally searched / arrested with the alleged liquor at the spot by the said PWs.
33. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.12 of 14 prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
34. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
35. PW-1 in the cross examination categorically deposed that he finally left the spot at about 11:00 pm, whereas PW-3 deposed that he has prepared the site plan at about 11:00 at the instance of PW-1, thereby contradicting the statement of each other regarding the point of time when site plan was prepared.
36. PW-1 categorically deposed in his examination in chief that Head Mistress of the MCD Primary School was called at the spot through Ct. Krishan Pal and in her presence seven petties were checked, however, it is very strange that said Head Mistress who can become an independent witness has not been made witness in the present case, which shows bad investigation and fatal to the case of prosecution.
37. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, non joining and examination of independent public witnesses, the prosecution has FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.13 of 14 failed to establish its case against the accused beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Sunil stands acquitted of the offence u/s 33 Delhi Excise Act accordingly.
38. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
39. File be consigned to the record room after due compliance.
SHILPI Digitally signed
by SHILPI JAIN
Announced and Signed in the Open Court JAIN Date: 2019.01.21
16:51:51 +0530
on 21.01.2019 (Shilpi Jain)
MM-01(Central)/THC/Delhi
21.01.2019
FIR No. 255/12 PS Prasad Nagar State Vs. Sunil Page no.14 of 14