Delhi District Court
State vs . Swaran Kaur on 15 December, 2022
DLNT020124382017
IN THE COURT OF METROPOLITAN MAGISTRATE05,
DISTRICT NORTH, ROHINI COURTS, DELHI
Presided by: Ms. SWATI GUPTAII, DJS
State Vs. Swaran Kaur
FIR No. 246/2017
PS. SB Dairy
U/s. 33 Delhi Excise Act
JUDGMENT
1) Case ID : 59782017
2) The date of commission of offence : : 09.05.2017
3) The name of the complainant : Ct. Jai Kumar
4) The name & parentage of accused : Swaran Kaur W/o
Late Lakhmi Chand,
R/o House no. 299,
Sector 26, Rohini,
Shahbad Daulatpur,
Delhi.
5) Ld. APP for the State : Dr. Deepak Saini
5) Offence involved : Section 33 Delhi
Excise Act
6) The plea of accused persons : Pleaded not guilty
7) Final order : Acquittal
8) Judgment reserved on : 25.11.2022
9) Judgment announced on : 15.12.2022
State Vs. Swaran Kaur FIR no. 246/2017 1 of 9
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, the allegations of the prosecution are that on 09.05.2017 at about 6:00 pm, in front of A118, SB Dairy, Delhi, within the jurisdiction of PS Shahbad Dairy, the accused Swaran was found in possession of 110 quarters bottles of illicit liquor out of which 46 quarter bottles were of Impact Grain Whiskey for sale in Haryana only and 64 quarter bottles were of Santara Masaledar Desi Sharab for sale in Haryana only of 180 ml., without any license or permit, as such, she has committed the offence punishable u/s 33 of the Delhi Excise Act.
2. Investigation was conducted into the allegations. Upon completion thereof, charge sheet was filed. Accused was summoned. Compliance of section 207 Cr.P.C was done by providing copy of the charge sheet and annexed documents to the accused.
3. Upon finding a prima facie case against the accused, a formal charge for the offence punishable U/s 33 of Delhi Excise Act was framed against the accused to which she pleaded not guilty and claimed trial.
4. In order to substantiate the allegations, six witnesses have been examined on behalf of the prosecution.
5. PW1 Brijender Singh deposed that on 16.05.2017, he was posted as State Vs. Swaran Kaur FIR no. 246/2017 2 of 9 Deputy Chemical Examiner as Excise Control Laboratory, I.P. Estate Delhi and received two samples of illicit liquor in the seal of PK in FIR NO. 246/15, thereafter, he allotted the sample to Ram Singh, Assistant Chemical Examiner after analysis who prepared the report under his supervision. The said report with signatures of PW1 at point A is Ex. PW1/A.
6. PW2 ASI Jai Kumar deposed that on 09.05.2017, he was on patrolling duty and one secret informer, informed him that one lady is selling illicit liquor near A Block, S.B. Dairy. Thereafter, he requested 2 3 public persons to join the raid, however, all of them refused due to their personal reasons. At around 6 pm, PW2 ASI Jai Kumar alongwith secret informer reached at A Block S.B. Dairy. At pointing of the secret informer, he went towards the lady and asked her regarding the plastic bag. Upon preliminary search, he found illicit liquor in the plastic bag of the lady and lady told her name Swaran Kaur. Thereafter, he made a call to the PS and IO HC Vipin came to the spot alongwith W/Ct. Asha. He then handed over the illicit liquor and custody of accused to HC Vipin.
7. PW2 further deposed that thereafter, HC Vipin checked the illicit liquor and found 110 quarter bottles of illicit liquor. Out of 110 quarter bottles, 46 quarter bottles were of Impact Grain Whiskey for sale in Haryana only. HC Vipin took out 1 quarter bottle as a sample from 46 quarter bottles and sealed the sample in the remaining quarter bottles. The remaining 64 quarter bottles of "Asli Santra Maseledar Desi Sharab"
State Vs. Swaran Kaur FIR no. 246/2017 3 of 9 for sale in Haryana only. HC Vipin also took out one quarter bottle as a sample from the 64 quarter bottles and thereafter, he sealed the sample and the remaining quarter bottles with the seal of PK. HC Vipin filled the Form M29. The seal was handed over to ASI Jai Kumar. HC Vipin prepared the seizure memo which is Ex. PW2/A. Thereafter, HC Vipin recorded his statement which is Ex. PW2/B, prepared the rukka and handed over to ASI Jai Kumar for registration of FIR. After sometime, ASI Jai Kumar returned to the spot alongwith the copy of FIR and original rukka. Thereafter, IO/HC Vipin gave the notice under Section 41A Cr.P.C. to the accused. IO/HC Vipin recorded the disclosure statement of the accused which is Ex. PW2/C.
8. PW2 correctly identified the accused, the case property i.e. one photograph of Pullanda and destruction letter of case property vide order no. F.CONF/2018/292030 dated 03.07.2018 issued by Commissioner Excise, the same are Ex. P1 and Mark A respectively. He further correctly identified the two quarter bottles i.e. the case property and same are Ex. A1 and Ex. B1 respectively.
9. PW3 W/HC Asha supported the version of PW2 regarding the events of 09.05.2017 in toto and correctly identified the accused and the case property.
10. PW4 ASI Anil Kumar deposed that on 09.05.2017, he was posted at PS SB Dairy as Duty Officer and his duty hours were 4:00 to 12: 00 State Vs. Swaran Kaur FIR no. 246/2017 4 of 9 midnight. At about 7: 45 pm he received a rukka which was brought by HC Jai Kumar and which was sent by HC Vipin Kumar. He made an endorsement, which is Ex. PW4/A on rukka. On receipt of rukka, he registered the FIR through CIPA operator under his supervision and nothing adverse happened in computer system during that period. PW4 produced the original rukka and copy of FIR which was Ex. PW 4/B(OSR).
11. PW5 IO/HC Vipin has deposed that on 09.05.2017 he was posted at PS SB Dairy as HC. On that day he was on emergency duty. He received DD no. 33 A at about 6:10 pm. Thereafter, he went to the spot i.e. A118, SB Dairy, alongwith W/Ct. Asha. PW5 reiterated and supported the version of PW2 regarding the events of 09.05.2017. He further deposed to have recorded the statement of the Ct. Jai Kumar and prepared the rukka which is Ex. PW5/A, the site plan at the instance of HC Jai Kumar which is Ex. PW5/B and to have given the notice u/s 41A to the accused which is Ex. PW5/C. PW5 also correctly identified the case property.
12. PW6 HC Pawan deposed to have received the case property on 16.05.2017 along with Form M29 and to have submitted the sample at Excise Lab.
13. Statement of the accused was recorded under section 294 Cr.P.C. wherein the accused admitted the genuineness of the documents i.e. the State Vs. Swaran Kaur FIR no. 246/2017 5 of 9 certificate u/s Section 65B of Indian Evidence Act which is Ex. P1 and DD no. 33 A which is Ex. P2.
14. After prosecution evidence was concluded, statement of accused was recorded U/s 313 Cr.P.C read with Section 281 Cr.P.C wherein she refuted the allegations levelled against her. The accused pleaded innocence and stated that the police officials have planted the present case upon her.
15. The accused chose not to lead any evidence in her defence and the same was closed.
16. Final arguments were led on behalf of both the parties.
17. Rival submissions have been considered and record of case has been carefully perused.
18. It is trite that in a criminal trial, the onus remains on the prosecution to prove the guilt of accused 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.
19. As per the deposition of prosecution witnesses, seizure memos were prepared before the preparation of rukka Ex. PW5/A. However, State Vs. Swaran Kaur FIR no. 246/2017 6 of 9 seizure memo of the case property Ex. PW2/A bears the number, date, offence, PS etc. of the present FIR. Thus, it emerges that either the liquor was seized after the registration of the FIR or the number of the FIR was inserted later on. Either way, the same creates a doubt regarding seizure of the illicit liquor in the manner suggested by the prosecution. Reliance is placed on the decision of the Hon'ble High Court of Delhi cited as Mohd. Hashim, Appellant Vs. State; 2000 CRI.L.J. 1510.
20. As per the case of the prosecution, the case property was sealed by the IO with seal PK. The entire evidence led on behalf of the prosecution is silent as to where was the seal deposited thereafter. No seal handing over memo has been proved by the prosecution nor have any of the prosecution witnesses disclosed its whereabouts. Although it is the unrebutted testimony of PW6 that no tampering was done with sample in his custody i.e. since 16.05.2017 but the case property was seized on 09.05.2017. In such a scenario, tampering with the sample or the case property between 09.05.2017 to 16.05.2017 cannot be ruled out creating a doubt regarding preservation of the sample/ the seized case property. Support is drawn from the decisions cited as Safiullah vs. State; (1993) 49 DLT 193 and Rajesh Jagdamba Avasthi Vs. State of Goa; (2005) 9 SCC 773.
21. Admittedly, no public persons were joined in the recovery or during investigation. PW2, PW3 and PW5 have conceded during their cross examination that no notice was served to the public persons who State Vs. Swaran Kaur FIR no. 246/2017 7 of 9 refused to join the investigation and no reason for such omission has been disclosed by the prosecution. Therefore, it is clear that sincere efforts were not made to make independent witnesses join the investigation, despite their availability at the spot at the time of the alleged recovery. This casts a shadow of doubt on the story of the prosecution. Here one may refer to decision of Hon'ble High Court of Delhi cited as Anoop Joshi Vs. State; 1992 (2) C.C. Cases 314.
22. Chapter 22 Rule 49(c) of Punjab Police Rules, 1934, provides that 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 shall be entered vide a separate entry and 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 in Register No. II. In the present case, no departure or the arrival entry of ASI Jai Kumar who allegedly found the accused with the illicit liquor has been proved. This creates a doubt regarding his presence at the spot and makes the prosecution version suspicious. Reliance is placed on the decision of the Hon'ble High Court of Delhi cited as Rattan Lal Vs. State; 1987 (2) Crimes 29.
23. In view of the above analysis, this court is of the considered opinion that the case of prosecution is rife with doubts and benefit thereof must be given to the accused.
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24. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Consequently, accused Swaran Kaur w/o Lt. Sh. Lakhmi Chand is acquitted of the offence punishable under Section 33 of Delhi Excise Act. Digitally signed by SWATI SWATI GUPTA Date:
GUPTA 2022.12.15
11:47:14
+0530
Pronounced in the open (SWATI GUPTAII)
Court on 15.12.2022 MM05 (North), Rohini Courts
New Delhi
This judgement contains 9 signed pages.
State Vs. Swaran Kaur FIR no. 246/2017 9 of 9