Delhi District Court
State vs . Jitender @ Raju on 25 August, 2023
IN THE COURT OF MS DEEPALI SRIVASTAVA, METROPOLITAN
MAGISTRATE-03, NORTH WEST, ROHINI COURTS, DELHI
Cr Case No. 544447/2016
FIR No. : 613/2015
P.S. : North Rohini
State Vs. Jitender @ Raju
U/s. 33/38 Delhi Excise Act
State
v.
Jitender @ Raju
S/o Sh. Jasbir,
R/o A-1/460, Sec-6, Rohini, Delhi
Date of institution of case : 30.04.2016
Date of reserving the judgment : 03.08.2023
Date of pronouncement of judgment : 25.08.2023
JUDGMENT
1. S. No. of the Case: 544447/2016 2. Date of Commission of Offence: 14.08.2015 3. Date of institution of the case: 30.04.2016 4. Name of the complainant: HC Hari Krishan 5. Name of the accused: Jitender @ Raju 6. Offence complained or proved: U/s 33/38 Delhi Excise Act 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquitted. 9. Date of Final Order: 25.08.2023 State vs. Jitender @ Raju FIR no. 613/15 Page No. 1/12 Digitally signed by DEEPALI DEEPALI SRIVASTAVA SRIVASTAVA Date: 2023.08.25 16:34:04 +0530 BRIEF FACTS AND REASONS FOR DECISION
1. Succintly, the case of prosecution is that the accused Babita has been sent to face trial with the allegations that on 14.08.2015 at about 11:00 PM in front of house no. A-1/460, Sector-6, Rohini Delhi, within the jurisdiction of PS North Rohini, accused was found in possession of illicit lliquor for sale in Haryana, without any li- cense or permit. Investigation was carried out. Upon completion of the investigation the charge-sheet for the offences punishable under section 33 Delhi Excise Act was filed by the investigating officer against the accused. The accused was then sum- moned by the undersigned.
2. The copies of charge sheet and relevant documents was supplied to the accused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 33 Delhi Excise Act was framed on 01.09.2018 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined three witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
5. PW-1 ASI Hari Kishan deposed in his examination in chief that on 14.08.2015, he was posted as HC at PS North Rohini. On that day he along with Ct. Naveen were on patrolling duty and at about 11:05 PM, they reached in front of house State vs. Jitender @ Raju FIR no. 613/15 Page No. 2/12 Digitally signed by DEEPALI SRIVASTAVA DEEPALI SRIVASTAVA Date:
2023.08.25 16:34:22 +0530 no. 460, Pocket A-1, Sector 6 rohini Delhi and they noticed that one person who was sitting in the aforesaid house lifted card boxes from there and tried to took them inside the aforesaid house. On suspicion, he checked the aforesaid card boxes total five in number and found one petti was containing 24 half bottles of Royal Stag brand and remaining 04 pettis were having 48 quarter bottles in each gatta petti make of white and blue. Thereafter he informed PS North Rohini by his mobile phone and thereafter HC Yashveer Singh reached at the spot. They handed over the custody of accused and aforesaid case property to IO/HC Yashveer Singh. Thereafter, IO requested 4-5 passerby to join the investigation but they refused to join the investigation and left the spot. No notice was given to them due to paucity of time. IO again counted the aforesaid recovered illicit liquor and found 24 half bottles of Royal Stag brand and remaining 04 pettis were having 48 quarter bottles in each gatta petti make of white and blue for sale in Delhi. IO took out one half bottle of Royal Stage and four quarter bottles of white and blue, one from each petti as sample and remaining illicit liquor in the same gatta petti from which they were recovered. Thereafter, gatta petti were put into separate plastic bag and said plastic bags were duly tied with the help of white cloth and duly sealed with the seal of "HK" and serial number was given as A, B, C, D and E respectively and sample bottles were given as serial no. A1, B1, C1, D1 and E1 respectively. Seal after use was given after him and afore- said illicit liquor seized by the IO and same vide seizure memo Ex. PW-1/A bear- ing his signature at point A. Form no. 29 was filled up by the IO at the spot. Thereafter, IO recorded his statement and the same is Ex. PW-1/B bearing his signature at point A. IO prepared Rukka and Ct. Naveen was sent for registra- tion of FIR. IO prepared site plan on his instance. After registration of the case, Ct. Naveen return back to the spot and handed over copy of FIR and original rukka to IO. IO recorded disclosure statement of accused and the same is Ex. PW-1/B bearing his signature at point A. Thereafter, accused and the case prop-State vs. Jitender @ Raju FIR no. 613/15 Page No. 3/12 Digitally signed by DEEPALI
DEEPALI SRIVASTAVA
SRIVASTAVA Date: 2023.08.25
16:34:29 +0530
erty was brought to the PS. The case property i.e. 23 half bottles of Royal Stag brand are already Ex. P-1 (Colly) and remaining four katta/petti which were having 47 in each katta/petti of quarter bottles of white and blue are already Ex. P-2 (Colly).
PW-1 has correctly identified the accused person and cross examined by Ld. counsel for the accused.
6. PW-2 Ct. Naveen has deposed same facts in his examination as deposed by PW-1 and also cross examined by Ld. counsel for the accused.
7. PW-3 ASI Yashveer Singh deposed in his examination in chief that on 14.08.2015, he was posted as HC at PS North Rohini. On that day, on receiving DD no. 36A (copy of which is already Ex. P-3) at about 11.15 PM, he reached at sector-6 in front of house no. 460, Pocket A-1, Rohini and met with the HC Hari Kishan and Ct. Naveen. They handed over the custody of the accused and the case property to him. Thereafter, he requested 4-5 passerby to join the investigation, but they refused to join the investigation and left the spot without mentioning their names and address. No notice was given to them due to the shortage of time. He again counted the afore- said illicit liquor and found 24 half bottles of Royal Stag brand and remaining 04 pet- ties were having 48 quarter bottles in each gatta petties make of white and blue for sale in Delhi. Thereafter, he took out one half bottle of Royal Stag and four quarter bottles of white and blue on from each petti as sample and remaining illicit liquor in the same gatta petti from which they were recovered. Thereafter, gatta petties were put into separate plastic bag and the said plastic bags were duly tied with the help of white cloth and duly sealed with the seal of HK and serial number was given as A, B, C, D and E respectively and sample bottles were given as serial no. A1, B1, C1, D1 and E1 respectively. Seal after use was given to HC Hari Kishan and aforesaid illicit liquor seized by him and the same vide seizure memo already Ex. PW-1/A bearing his signature at point X. Form no. 29 was filled by him at the spot. Thereafter, he State vs. Jitender @ Raju FIR no. 613/15 Page No. 4/12 Digitally signed by DEEPALI SRIVASTAVA DEEPALI SRIVASTAVA Date:
2023.08.25 16:34:44 +0530 recorded the statement of HC Hari Kishan and the same is already Ex. PW-1/B bear- ing his signature at point X. After that he stated that 23 half bottles of Royal Stag branch are already Ex. P-1 (Colly) and remaining four katta/ petti which were having 47 in each katta/petti of quarter bottles of white and blue are already Ex. P-2 (Colly).
PW-3 has correctly identified the accused person and also cross examined by ld. counsel.
8. The accused also admitted the genuineness of Fir no. 613/15, PS North Rohini which is Ex. P-1, Certificate under Section 65-B of Indian Evidence Act regading the aforesaid e-FIR which is Ex. P-2, DD no. 36A dated 14.08.2015 is Ex. P-3 without admitting their contents, u/s 294 Cr.PC, without admitting the contents of the same. In view of the above, witnesses mentioned at serial no. 4 and 5 in the list of prosection witneesses were dropped. Prosecution evidence was thereafter closed on 23.05.2023.
9. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. Further, the accused person did not opt to lead defence evidence and the matter was listed for final arguments.
10. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
11. Short point for determination before the court is as under -
"Whether on 14.08.2015 at about 11:00 PM in front of house no. A-1/460, Sector-6, Rohini Delhi, within the jurisdiction of PS North Rohini,, the accused Jitender @ Raju was found in possession of illicit liquor, without any licence or permit?"State vs. Jitender @ Raju FIR no. 613/15 Page No. 5/12 Digitally signed by DEEPALI
DEEPALI SRIVASTAVA
SRIVASTAVA Date:
2023.08.25
16:34:51 +0530
12. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of illicit liquor without permit and submitted that accused be convicted of the offence charged.
13. Per contra, it is argued by the Ld. counsel for the accused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. Counsel that non-joinder of public witness despite availability cast shadow of doubt on prosecution story. It is further argued by Ld. Counsel for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
14. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
15. In present case, the prosecution was duty bound to prove the possession of the illicit liquor with the accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of illicit liquor in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 11.05 PM and it is evident from the testimony of PW-1 & PW-2 that the accused was apprehended alongwith the alleged unauthorised illicit liquor at a public place but still no public independent person was cited as a witness State vs. Jitender @ Raju FIR no. 613/15 Page No. 6/12 Digitally signed by DEEPALI SRIVASTAVA DEEPALI SRIVASTAVA Date:
2023.08.25 16:34:59 +0530 in this case.
16. The aforesaid observations have been deduced from the testimony of PW-1 as well as PW-2. As per version of PW1 and PW-2, after apprehension of the accused, public persons were available at the spot. IO requested 4-5 passersby to join the investigation but all the passersby refused to join the same. Further, both PW1 and PW-2 also stated that no notice was served upon the passersby by IO , who refused to join the investigation. The said explanation given by PW-1 and PW-2 cannot be accepted by the court since, the IO was under obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused has already been apprehended by the police and there was no apprehension that accused might escape. Moreover, the IO has not even placed on record the names of the passerby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments:-
In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. 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 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 rigours of law while declining to perform their legal duty to assist the State vs. Jitender @ Raju FIR no. 613/15 Page No. 7/12 Digitally signed by DEEPALI DEEPALI SRIVASTAVA SRIVASTAVA Date:
2023.08.25 16:35:07 +0530 police in investigation as a citizen, which is an offence under the IPC".
In an case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigation 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 he witnesses from the public had refused to 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".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under:-
State vs. Jitender @ Raju FIR no. 613/15 Page No. 8/12Digitally signed by DEEPALI DEEPALI SRIVASTAVA SRIVASTAVA Date:
2023.08.25 16:35:30 +0530 "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo-type statement of non-availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
17. Considering the aforesaid observations made by the Higher Courts, the omissions/ failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story. Making bald averments that 4-5 passersby were asked to join the investigation but none agreed without giving any written notice to them does not inspire the confidence of the Court.
18. The next inconsistency in the case of the prosecution is the failure to prove the arrival and departure entries of the police officials. It is pertinent to mention that the present case rests entirely on the alleged recovery of case property, i.e. illicit liquor from the possession of the accused at the relevant time by the police officials who were on patrolling duty at the relevant time and place, as per the prosecution story.
Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for above purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, State vs. Jitender @ Raju FIR no. 613/15 Page No. 9/12 Digitally signed by DEEPALI SRIVASTAVA DEEPALI SRIVASTAVA Date:
2023.08.25 16:35:43 +0530 which reads as under:
"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."
19. Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials who were allegedly on patrolling duty at the relevant time and had apprehended the accused with case property becomes a vital piece of evidence. In the case in hand neither the departure entry nor arrival entry was proved by prosecution. Infact, PW- 1 has himself stated in his cross-examination that he did remember any DD entry at the time of his arrival/departure at PS. Proof of the said entry is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official. Therefore, the failure to prove the aforementioned entries casts a doubt on the story of the prosecution.
20. Further, as per evidence on record, the seal after use was not given to any independent public person but was infact given to PW-1, who was also a material prosecution witness being a witness to the alleged recovery of the illicit liquor from the possession of the accused, such material witness of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out. Moreover, no seal handing over memo is also on record. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh Vs. State State vs. Jitender @ Raju FIR no. 613/15 Page No. 10/12 Digitally signed by DEEPALI DEEPALI SRIVASTAVA SRIVASTAVA Date:
2023.08.25 16:36:11 +0530 of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is 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."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
21. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of weapon, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sar- wan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that:- "There may also be an element of truth in the prosecution story against the ac- cused. 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 the prosecution by legal, reliable and unimpeach- able evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had ob-
State vs. Jitender @ Raju FIR no. 613/15 Page No. 11/12
Digitally
signed by
DEEPALI
DEEPALI SRIVASTAVA
SRIVASTAVA Date:
2023.08.25
16:36:21
+0530
served 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.
22. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against the accused Jitender@ Raju beyond reasonable doubt. Accordingly, the accused Jitender @ Raju is acquitted for the offence punishable u/s 33 Delhi Excise Act.
23. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Digitally signed by DEEPALI SRIVASTAVADEEPALI SRIVASTAVA Date:
2023.08.25 Announced in open Court (DEEPALI SRIVASTAVA) 16:36:32 on 25th Day of August, 2023 Metropolitan Magistrate +0530 North-West, Rohini, Delhi State vs. Jitender @ Raju FIR no. 613/15 Page No. 12/12