Delhi District Court
State vs . Sanjay on 31 March, 2023
IN THE COURT OF SH. PRANAV JOSHI
METROPOLITAN MAGISTRATE03, NORTH,
ROHINI COURTS, DELHI
State Vs. Sanjay
FIR No. 99/2012
PS K. N. Katju Marg
U/s. 33 Delhi Excise Act
CIS No. 5285749/2016
JUDGMENT
1) The date of commission : 03.03.2012
of offence
2) The name of the complainant : HC Rishi Ram
3) The name & parentage
of accused : 1) Sanjay,
S/o Kattar Singh,
R/O Village Mattan,
PS Bahadurgarh,
Distt. Jhajjar, Haryana.
1) Dayanand,
S/o Prahlad Singh,
R/O D6, Pocket 6,
Vasant Kunj, Delhi.
(Absconder)
4) Offence complained of : U/s. 33 Delhi Excise
Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
State Vs. Sanjay 1 of 16
7) The date of such order : 31.03.2023
Date of Institution : 12.02.2013
Judgment reserved on : 23.01.2023
Judgment announced on : 16.03.2023
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that on 03.03.2012 at about 5:30 pm at main road opposite Parsuram Engineering College, Sector 17, Rohini, within the jurisdiction of PS KNK Marg, the accused Sanjay was found in possession of 14 cartons of illicit liquor containing 50 quarter bottles each and 16 cartons of illicit liquor containing 48 quarter bottles each without any permit or licence, which the accused was found transporting in Maruti Esteem Car bearing registration No. DL 2CG 7071. The accused was charge sheeted for the offence punishable under section 33 Delhi Excise Act.
2. After completion of investigation, chargesheet for the offences under section 33 Delhi Excise Act was filed against the accused whereupon cognizance was taken. However, vide order dated 22.07.2013, the Ld. Predecessor directed further investigation finding that the owner of the vehicle has not been arraigned as an accused in the present case as per section 52 (2) Delhi Excise Act. The owner of the vehicle Dayanand was not apprehended as he had absconded. Accused Dayanand was declared absconder on 18.02.2014. Thereafter, supplementary charge sheet was filed and State Vs. Sanjay 2 of 16 trial proceeded against accused Sanjay. After complying with the provisions of Sec. 207 Cr. P.C, arguments on charge were heard and vide order dated 15.11.2018, charge was framed against the accused Sanjay for offence u/s 33 Delhi Excise Act to which he pleaded not guilty and claimed trial.
3. The prosecution examined seven witnesses. PW1 Retd. HC Surender Pal deposed that on 03.03.2012, he was posted at PS K.N.K. Marg as duty officer. His duty hours were 4:00 pm to 12:00 midnight. On that day at about 7:25 pm, he received a rukka sent by HC Rishi Kumar through Ct Bijender and on the basis of which he registered FIR No. 99/12 PS K.N.K Marg. The FIR was registered by using the computer systems and specially designed software installed at PS which does not allow any alteration or deletion subsequent to the feeding of data. The true print out of the FIR is Ex.PW1/A (OSR). He further stated that during the period in which the FIR was registered, computers installed at PS were under his lawful control and Ex.PW1/A is a computer output based upon the information fed into the computer in ordinary course of the said activities and is free from any error on account of failure or malfunctioning of the computer. He handed over the copy of FIR to Ct. Bijender and made an endorsement EX.PW1/B on the tehrir. The witness was not cross examined by Ld. Counsel for the accused despite opportunity being given.
4. PW2 HC Rishi deposed that on 03.03.2012, he was posted as Head Constable at Special Staff, Outer District, Delhi. On that State Vs. Sanjay 3 of 16 day at about 4:30 pm, one secret informer came at our office i.e Special Staff and informed them that one car bearing registration Number of 7071 would came from Haryana via Shabad Dairy and will be going towards Yamuna Par Delhi. It was informed that If raided then offender could be apprehended. Secret information was brought in the notice of Inspector Special Staff and after discussion one raiding party was prepared. The raiding party consisted of him, HC Neeraj, Ct Krishan, Ct Bijender. Ct Amit. The DD entry regarding information was recorded vide DD entry no. 7, Special Staff. Thereafter, he along with other police official and secret informer reached near Parshuram Engineering College, Sec17, Rohini, Delhi. After reaching there, police official tried to convince public persons to join the raiding party, but none of them agreed and they flatly refused to join the raiding party. The public persons also left the spot without disclosing their name and addresses. After placing a barricade, police official started checking the vehicles. At about 5:30 pm, secret informer pointed out toward the offending vehicle in which the accused person was coming. Thereafter, by putting barricade, the vehicle was stopped. It was Esteem car of white colour having number plate bearing registration No. DL 2CG7071. On inquiring the accused disclosed his name as Sanjay S/o Kartar Singh. He made casual search of the offending vehicle. The offending vehicle contained 14 cartons of desi Sharab. There were 50 quarters in each carton. It was labelled as Santara Masaledar Sharab 180 ml for sale in Haryana only, bearing the manufactured name as COUNTRY LIQUOR NV DISTILLERY State Vs. Sanjay 4 of 16 Ltd, Badoli, DistAmbala, Haryana. The other 16 cartons were containing 48 quarters each carton having quarter bottles NV BESTO WHISKY for sale in Haryana only and DISTILLED BLENDED & BOTTLED by NV Distillery Ltd, Badoli, Teshil Maharani Bagh, Dist. Ambala, Haryana. One quarter from each carton was extracted for the sample. He sealed sample with white cloth. Thereafter, HC Neeraj brought the 7 plastic katta from local market to seize the remaining liquor. Two carton were put into each katta. The Plastic katta containing Desi Liquor was given serial No.17. The other Plastic Katta containing were given serial No. 8 15. The samples were sealed and given serial number I to 14A and 15A to 30. Seal of RR was impressed. He made the seizure memo Ex.PW2/A. He prepared form M 29 Ex.PW2/C at the spot. During the proceeding one Constable namely Mr. Pradeep from the Excise Department was also present at the spot and shared the same information regarding illicit liquor and joined the proceeding. He handed over the seal to the Ct Bijender. Thereafter, he prepared the rukka Ex.PW2/B. He sent Ct Bijender to Police Station K.N Katju Marg for registration of FIR. Thereafter, after the registration of FIR, Ct Bijender reached at the spot and handed over the original rukka and copy of FIR to HC Naresh/IO of the present case. Further investigation was conducted by HC Naresh. He handed over the case property and accused person to IO/HC Naresh. IO prepared the site plan on his instance. IO recorded his statement u/s 161 Cr.P.C. He correctly identified the samples retained out of the case property i.e. Ex.P1 and Ex.P2 and the photographs Ex. P4. He also State Vs. Sanjay 5 of 16 identified the accused correctly. He also identified the report regarding destruction of illicit liquor Ex.P3 and the letter regarding destruction Mark A. The witness was cross examined by Ld. Counsel for the accused.
5. PW3 HC Bijender deposed that on 03.03.2012, he was posted as Constable at Special Sail Outer District, Delhi. On that day at about 4:30 pm, one secret informer came at their office i.e. Special Staff and informed IO that one car bearing registration number of 7071 would came from Haryana via Shabad Dairy and would be going towards Yamuna Par, Delhi and it was informed that if raided, the offender could be apprehended. Secret information was brought in the notice of Inspector Special Staff and after discussion one raiding party was prepared. The raiding party consisted of himself, HC Neeraj. Ct Krishan, HC Rishi. Ct Amit. The DD entry regarding information was recorded vide DD entry no. 7 Special Staff. Thereafter, he along with other police official and secret informer reached near Parshuram Engineering College. Sec17, Rohini, Delhi. After reaching there, police official tried to convince public persons to join the raiding party, but none of them agreed and they flatly refused to join the raiding party. The public person also left the spot without disclosing their name and addresses. After placing a barricade, police officials started checking of the vehicles. At about 5:30 pm, secret informer pointed out toward the offending vehicle in which the accused person was coming. Thereafter, by putting barricade, the vehicle was stopped.
State Vs. Sanjay 6 of 16 It was Esteem car of white colour having number plate bearing registration No. DL2 CG7071. On inquiring the accused disclosed his name as Sanjay S/o Kartar Singh. IO/HC Rishi made casual search of the offending vehicle. The offending vehicle contained 14 carton of desi sharab. There were 50 quarters in each carton. It was labelled as Santara Masaledar Sharab 180 ml for sale in Haryana only, bearing the manufactured name as COUNTRY UQUOR NV DISTILLERY Ltd. Badoll, DistAmbala, Haryana. The other 16 cartons were containing 48 quarters in each carton on bottled NV BESTO WHISKY for sale in Haryana only and having label DISTILLED BLENDED & BOTTLED by NV Distillery Ltd, Badoli, TeshilMaharani Bagh, DistAmbala, Haryana. One quarter from each carton was extracted for the sample. IO sealed sample with white cloth. Thereafter, HC Neeraj brought 7 plastic katta from local market to seize the remaining liquor. Two carton were put into each katta. The Plastic katta containing Desi Liquor was given serial No.17. The other Plastic Katta was given serial No. 8 15. The samples were sealed and given serial number 1 to 14A and 15A to 30. Seal of RR was impressed. IO prepared the seizure memo Ex.PW2/A. IO prepared the form M 29 Ex.PW2/C at the spot. During the proceeding one Constable namely Mr. Pradeep from the Excise Department was also present at the spot and shared the same information regarding illicit liquor and joined the proceeding. IO handed over the seal to him. Thereafter, IO prepared the rukka Ex.PW2/B at his instance. IO sent him for registration of FIR of the present case. After registration of FIR, he reached at the spot and State Vs. Sanjay 7 of 16 handed over the original rukka and copy of FIR to second IO HC Naresh. Further investigation was made by HC Naresh. IO handed over the case property and accused person to IO/HC Naresh in his presence. The witness correctly identified the accused. IO prepared the site plan in his presence. Thereafter, second IO HC Naresh interrogated the accused and arrested him in the present case vide arrest and personal search memos Ex. PW3/A and Ex. PW3/B. The second IO also seized the RC of the car in question vide seizure memo Ex. PW3/C. He correctly identified the samples retained out of the case property i.e. Ex.P1 and Ex.P2 and the photographs Ex. P4. He also identified the report regarding destruction of illicit liquor Ex.P3 and the letter regarding destruction Mark A. On 16.03.2012, he took the samples to Excise Office, ITO Delhi and deposited the same and the receipt had been given to the IO. The witness was cross examined by Ld. Counsel for the accused.
6. PW4 Ct. Sandeep deposed that on 03.03.2012, he was posted at PS KNK Marg as MHC(M). On that day, IO HC Rishi Raj had deposited sealed case property vide entry no. 304/12 dated 03.03.2012. Today, he has brought the original register no. 19 regarding the aforesaid entry Ex. PW 4/A (OSR). On the same day, case property i.e. vehicle bearing No. DL 2CG 7071 was also deposited vide the above said entry. The abvoe said vehicle was still lying in the district Malkhana, Narela. On 16.03.2012 case property i.e. 14 quarters of Rasila Santra and 16 quarter of Besto Whisky were sent to the Excise Laboratory, ITO Delhi through Ct. Bijender State Vs. Sanjay 8 of 16 vide RC no. 27/21/12 dated 16.03.2012 Ex. PW 4/B. There was no tampering with the case property while it remain in his possession. The witness was cross examined by Ld. Counsel for the accused.
7. PW5 HC Pradeep deposed that On 03.03.2012, he was posted at Excise Department as constable. On that day, he had received the secret information regarding the illicit liquor. On that day, staff of local police namely HC Neeraj, Ct. Bijender and Ct. Kishan were on checking at Sector 17, Rohini. While checking one vehicle bearing registration No. DL 4CG 7071 came from the side of Shahbad Dairy. Upon checking the illicit liquor i.e. cartons of liquor were recovered. He deposed that 14 cartons were of Rasila Santra and 16 cartons were of whiskey. After the checking they sealed the liquor. Rukka was given to CL Bijender. He did not want to say anything else. Ld. APP for the State sought the permission to cross examine the witness as he was resiling from his statement given U/s 161 Cr.P.C. The witness was cross examined by Ld. APP for the State. The witness was also cross examined by Ld. Counsel for the accused.
8. PW6 ASI Narender Singh deposed that on 01.12.2012, the present case file was transferred to him for investigation. He inquired about the vehicle bearing registration No. DL2CG7071 containing illicit liquor. He inquired about the ownership from the authority, however the address was found wrong. He also moved an application for obtaining NBWs of the owner of the vehicle and later, he got issued the proceedings u/s 82 Cr.P.C against owner and State Vs. Sanjay 9 of 16 he was declared P.O. Witness correctly identified the accused. The witness was cross examined by Ld. Counsel for the accused.
9. PW7 SI Naresh Kumar deposed that on 03.03.2012, he was posted at special staff, outer district. On that day, he received DD No. 9 through duty officer at Special Staff office. Thereafter, he reached at the spot at near Parasuram College, Main road, Sector 17, Rohini, Delhi. At the spot, he met HC Rishi Ram, HC Neeraj, Ct. Amit and Ct. Pradeep from Excise Department along with the accused, the case property and the offending vehicle Esteem car. Thereafter, HC Rishi handed over the offending vehicle and accused to him along with case property and also informed him about the situation. HC Rishi Ram also handed over to him the seizure memo of the case property. He prepared the site plan Ex. PW7/A at the instance of HC Rishi Ram. Thereafter, he conducted inquiry from the accused. In the meantime HC Rishi Ram was relieved from the investigation and he left the spot. In the meantime, Ct. Bijender also came back at the spot along with copy of FIR and original Tehrir. The same was handed over to him. The details of the FIR were filled in the documents prepared prior to registration of the FIR at the spot. Thereafter, he arrested accused in the present FIR vide arrest memo Ex. PW3/A. The personal search was conducted vide memo Ex. PW3/B C and he recorded the disclosure statement of the accused. The documents of the offending vehicle were seized from the accused at the spot vide seizure memo Ex. PW3/C. Thereafter, they left the spot along with State Vs. Sanjay 10 of 16 case property and the accused and came back to PS. The case property along with Form 29 was deposited with the Malkhana. The accused was lodged in the lockup. Thereafter, accused was sent for medical examination and was again lodged in lockup at the PS. On the next day, the accused was produced before the Court from where he was sent to judicial remand. He recorded the statement of the witnesses. The intimation regarding the confiscation of the offending vehicle was given to DC Excise vide Mark X1. On 16.03.2012, the sample case property was taken to excise lab, ITO vide RC No. 27/21/12. Till the time, the same was in the custody of the Ct. Bijender and was deposited at Excise Lab. The receipt for deposition of said property at excise lab was deposited with the Malkhana. He also verified the RC of the vehicle, however the owner of the offending vehicle could not be traced out and no other address of the owner was provided by the accused. On 17.11.2012, he was transferred. Accordingly, on the instruction of his seniors, he handed over the case file to the Reader to ACP Operations. Witness correctly identified the accused as well as the case property through photograph. The witness was cross examined by Ld. Counsel for the accused.
10. During the course of trial, the accused on 05.09.2019, accused made a statement before the Court that he did not dispute the preparation and genuineness of DD No.9 date 03.03.2012, Chemical Examiner's Report, Relevant entries at register No. 19 and 21 and identity of the vehicle. Hence, the concerned witnesses State Vs. Sanjay 11 of 16 were not called to depose and they were dropped from the list of witnesses.
11. Statement of the accused under section 313 Cr.P.C was recorded, wherein accused pleaded innocence and false implication in the present case. Accused opted not to lead defence evidence.
12. I have heard the arguments of Ld. APP for State and also perused the record carefully. The accused was granted liberty to file written submissions but he chose not to do so.
13. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. 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. In this regard, it is relevant to reproduce the observations made by Hon'ble Supreme Court in Kali Ram Vs. Himanchal Pradesh (1973 2 SCC 808) in para 23 and 25:
" 23. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973 2 SCC 793) to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The State Vs. Sanjay 12 of 16 burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed...
25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the 73 5 court entertains reasonable doubt regarding the, guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable : it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to State Vs. Sanjay 13 of 16 surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh,(1974 2 SCC 227) a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the, court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures."
14. It is pertinent to mention that as per the testimony of PW1 and PW2, the raiding party consisted of HC Neeraj, Ct. Krishan, Ct Bijender, Ct. Amit and HC Rishi but prosecution did not examine HC Neeraj, Ct. Krishan and Ct. Amit. It is also pertinent to mention that HC Pradeep who was posted at Excise Department, who joined the raiding party on secret information did not disclose the material facts and became hostile.
15. There is no public witness to support any aspect of the investigation. It is to be noted that the place of alleged recovery was a public place and as per the testimony of PW2 HC Rishi, PW3 HC Bijender and PW7 SI Naresh Kumar, there were public persons present on the spot. Despite the same, there is no public witness to support the case of prosecution. Though, corroboration from a public witness is not essential but if a case is entirely based on the State Vs. Sanjay 14 of 16 statements of the police officials, despite availability of public witnesses, the Court is put to a caution. In such cases, the Court has to see that testimonies of all police witnesses are credible, in sync with each other and the circumstantial facts.
16. In the present case, PW2 HC Rishi deposed that he sealed the illicit liquor with the seal of RR and the seal after the use was handed over to PW3/HC Bijender. The seal after use was not handed over to any independent person and no seal handing over or seal returning memo was placed on record and sample was sent to the Excise Lab after 13 days of the seizure. In the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para 7 as :
"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".
In Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15 .......................... In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case".
State Vs. Sanjay 15 of 16
17. In the case in hand, the seizure memo Ex. PW 2/A and Form 29 Ex. PW 2/C were prepared at the spot before registration of FIR. However, seizure memo Ex. PW 2/ A and Form 29 Ex. PW 2/C contain the details of FIR. It was admitted by PW7 in his testimony that he has put the details of FIR after these documents were prepared. The same causes reasonable doubt about truthfulness of the prosecution story as held by Hon'ble High Court of Delhi in the judgment of Giri Raj Vs. State 83 (200) DLT 201 (Para 5) :
"The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This give rise to two inferences that either the FIR (Ex.PW2/a) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situation, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
18. In view of aforesaid discussion, number of doubts have arisen in the case of prosecution. Accordingly, the benefit must be given to the accused Sanjay. Therefore, accused Sanjay is acquitted of the charge under section 33 Delhi Excise Act. Digitally signed PRANAV by PRANAV JOSHI JOSHI Date: 2023.03.31 16:48:06 +0530 Announced in open court (PRANAV JOSHI) on 31.03.2023 MM03/North District Rohini Courts/Delhi/31.03.2023 State Vs. Sanjay 16 of 16