Delhi District Court
State vs Pooran Singh on 25 July, 2024
IN THE COURT OF MS. PREETI AGGARWALA: CHIEF
JUDICIAL MAGISTRATE, EAST DISTRICT: DELHI
DLET020081772020
FIR No. 270/2020
PS Kalyan Puri
Unique Case ID No. 3737/2021
Title State Vs. Pooran Singh
Name of complainant ASI Rajender Singh
Name of accused Pooran Singh
S/o Sh. Chandu
R/o 12/450, Kalyan Puri,
Delhi.
Date of institution of challan 04.11.2020
Date of Reserving judgment 25.07.2024
Date of pronouncement 25.07.2024
Date of commission of offence 29.04.2024
Offence complained of U/s 33 of Delhi Exercise Act
Offence charged with U/s 33 of Delhi Exercise Act
Plea of the accused Pleaded not guilty
Final order Acquitted
BRIEF REASONS FOR THE DECISION OF THE CASE:-
The present case arises from the complaint Ex. PW2/A
wherein the prosecution has alleged that on 01.07.2020 at about
08.05 pm, in front of Kalyanvas, Jhuggi near LBS Hospital,
Delhi, the accused was found in possession of three petis
containing 150 quarter bottles of illicit liquor having description
Santra Mnasaledar Deshi Sharab Sale in Haryana as per seizure
FIR No. 270/2020 Page No. 1 of 9
Memo Mark X, which was beyond the prescribed quantity in
contravention of the notification issued by the Delhi
Administration and against provisions of The Delhi Exercise
Act as well as the and had thus, committed the offence u/s 33 of
the Delhi Exercise Act.
02. Upon completion of the investigation charge sheet under
section 173 Cr.PC was filed on behalf of the IO and the accused
was consequently summoned. A formal charge for the offence
punishable under section 33 of the Delhi Excise Act was framed
against the accused to which he pleaded not guilty and claimed
trial.
03. In order to prove its case, the prosecution has examined
three witness in all. One witness was admitted u/s 294 Cr.P.C.
being formal witnesses.
04. PW1 HC Mukesh has deposed that on 01.07.2020 he was
posted as Constable at PS Kalayn Puri and on that day he along
with ASI Rajender Singh were on patrolling duty. He further
deposed that when they reached near jhuggis, Kalyanpuri at
about 08.05 p.m., they saw one person was carrying a plastic
katta on his shoulder and on seeing use, he returned back, when
ASI Rajender Singh asked him to stop, he started on fast paces.
He further deposed that they apprehended him and on checking,
they recovered three pettis of illicit liquor from the said plastic
katta, on counting the, they found 50 bottles of illicit liquor in
each petti, totaling 150 bottles. He further deposed that ASI
Rajender Singh took out one bottle from each peti by way of
sample and three bottled were sealed for sample and remaining
FIR No. 270/2020 Page No. 2 of 9
147 bottles were packed and sealed in the three pettis and same
were seized vide seizure memo Ex.PW1/A which bearing his
signatures at point A, containing details of seizure proceedings
and description of illicit liquor and also filled up Form M-29
which is Ex.PW1/B, which is also bearing signatures at point A.
He further deposed that ASI Rajender Singh prepared his
complaint-cum-Rukka and handed over the same to him for
registration of the FIR. He further deposed that he went to PS
and got the FIR registered and returned back to the spot with
copy of FIR and original complaint. He further deposed that ASI
Rajender Singh prepared the site plan and arrested the accused
vide arrested memo Ex.PW1/C which bears his signatures at
point A and after completion of all the formalities , they returned
to the PS. He identified the accused in the court. Case property is
already disposed off vide order Ex.PW1/D.
05. When the said witness was cross-examined by Ld.
Counsel for the accused, PW1 stated that spot of apprehension is
a public place and many passersby passes through the area. He
admitted that no public witness has been cited as a witness. He
also admitted that no videography of seizure proceedings was
done. He further deposed that they left the spot at around 7.30
p.m. on foot. He further deposed that 4-5 persons were requested
to join the arrest and seizure proceedings but, none of them
came forward and left without disclosing their names and
addresses. He also admitted that no notice was given to them,
who refused to join the proceedings. He also admitted that no
resident was called to join the investigation by the IO, situated at
the spot.. He deposed that he went to PS alongwith rukka at
FIR No. 270/2020 Page No. 3 of 9
around 8.45 p.m. and returned back at about 9.15 p.m. He
deposed that he went to PS e-rickshaw. He deposed that he
returned the seal in PS , when the case property was deposited in
the maalkhana and his statement was recorded in this regard. He
deposed that he do not remember when his statement was
recorded and also unable to tell whether any other statement
was recorded in his presence. He admitted that he signed the
seizure memo Ex.PW1/A after gone through its contents from
top to bottom and no addition/alteration was done by the IO after
recording my statement. He deposed that he do not remember at
what time he left the spot. He also deposed that he do not
remember who was having the case property when they had left
the spot. He denied the suggestion that they had falsely
implicated the accused or that nothing was recovered from his
possession or that all the paper work was done while sitting at
the PS or that deposing falsely.
06. The prosecution has examined another witness PW2 ASI
Rajender Singh, the IO of the case. He deposed that on
01.07.2020he was posted at PS Kalayn Puri and on that day he along with Ct. Mukesh were on patrolling duty. He further deposed that when they reached near jhuggis, Kalyanpuri at about 08.05 p.m., they saw one person was carrying a plastic katta on his shoulder and on seeing use, he returned back, when he asked him to stop, he started on fast paces. He further deposed that they apprehended him and on checking, they recovered three pettis of illicit liquor from the said plastic katta, on counting the, they found 50 bottles of illicit liquor in each petti, totaling 150 bottles. He further deposed that he took out FIR No. 270/2020 Page No. 4 of 9 one bottle from each peti by way of sample and three bottles were sealed for sample and remaining 147 bottles were packed and sealed in the three pettis and same were seized vide seizure memo Ex.PW1/A which bearing his signatures at point B, containing details of seizure proceedings and description of illicit liquor and also filled up Form M-29 which is Ex.PW1/B, which is also bearing signatures at point B. He further deposed that he prepared his complaint-cum-Rukka Ex.PW2/A and handed over the same to Ct. Mukesh for registration of the FIR. He further deposed that Ct. Mukesh went to PS and got the FIR registered and returned back to the spot with copy of FIR and original complaint. He further deposed that he prepared the site plan Ex.PW2/B and arrested the accused vide arrest memo Ex.PW1/C which bears his signatures at point B and after completion of all the formalities , they returned to the PS. He further deposed that during the course of investigbation, he recorded statement of Ct. Mukesh, MHC(M) HC Binu, Ct. Mangal who had deposited the samples at laboratories. He identified the accused in the court. Case property is already disposed off vide order Ex.PW1/D.
07. This witness has also been cross-examined by ld. Counsel for the accused. He admitted that spot of apprehension of accused is a public place and many passersby passes through the area or that no public person has been cited as a witness. He also admitted that no videography of the seizure proceedings was done. He further deposed that they left the spot at around 7.30 p.m. on foot. He further deposed that 4-5 persons were requested to join the arrest and seizure proceedings but, none of them came forward and left without disclosing their names and FIR No. 270/2020 Page No. 5 of 9 addresses. He also admitted that no notice was given to them, who refused to join the proceedings. He also admitted that no resident was called to join the investigation by him, situated at the spot. He deposed that Ct. Mukesh went to PS alongwith rukka at around 8.45 p.m. and returned back at about 9.15 p.m. He deposed that distance between the spot and PS is around one kilometer. He deposed that he did not record statement regarding return the seal. He deposed that he does not remember the time we left the spot. He admitted that he signed the seizure memo Ex.PW1/A after gone through its contents from top to bottom and no addition/alteration was done by me. He also deposed that he do not remember who was having the case property when they had left the spot. He denied the suggestion that they had falsely implicated the accused or that nothing was recovered from his possession or that obtained signatures of Ct. Mukesh in PS and all the paper work was done while sitting at the PS or that deposing falsely.
08. The prosecution has examined third witness HC Mangal Chand as PW3, who deposed that on 20.07.2020 he was posted as Constable at PS Kalyanpuri and on the instructions of the IO ASI Rajender Singh he collected the samples from MHC(M) HC Binu vide RC Ex.PW3/A which were three quarters Santra Masaledar and deposited the same at Excise Control Laboratory as Vikas Bhawan. This witness was also cross-examined by the ld. Counsel for accused. PW3 deposed that he does not remember the name or designation of the person with whom he deposited the sample. He also deposed that he also does not remember the seal imprinted on the said samples or that FIR No. 270/2020 Page No. 6 of 9 deposing falsely and never went to deposit samples.
09. It is relevant to mention that on 29.04.2024 the accused made a statement admitting the genuineness of the recording of FIR No. 270/2020.
10. Thereafter the statement of accused U/s 313 Cr.PC R/W Section 281 CrPC was recorded wherein he refuted the allegations levelled against him in toto. Accused chose not to lead any defence evidence in his favour.
11. I have heard the rival submissions and carefully perused the record.
12. 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.
13. In the present case, as per prosecution witness PW-1 and PW2, the public persons were requested to join the investigation by the IOs but, none of them agreed as stated by them. No written notice was served admittedly upon them to join the proceedings in the present case or to face action U/sec. 187 IPC. Therefore, it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a FIR No. 270/2020 Page No. 7 of 9 serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
14. Admittedly, the seal after sealing the case property and the sample was not handed over to any independent person which creates a doubt on the sample as whether the same were intact and not tampered with. 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".
15. In the present case, as per the prosecution witness, the FIR was registered after the seizure memo was prepared but the seizure memo Ex.PW1/A bears the particulars of the FIR which creates a doubt in the case of the prosecution.
16. Even no statutory presumption in terms of section 52 of the Act, can be drawn against accused as the alleged recovery of liquor from the accused has become doubtful in view of the reasons mentioned above.
17. Hence, in view of the discussions made herein above and FIR No. 270/2020 Page No. 8 of 9 the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Accordingly, accused Pooran Singh stands acquitted of the charges leveled against him. Case property, if any, be forfeited to the State and be destroyed as per rules after appeal. File be consigned to Record Room after due compliance.
Announced in open Court on 25.07.2024 (Preeti Agarwala) Chief Judicial Magistrate (East), Karkardooma Courts, Delhi FIR No. 270/2020 Page No. 9 of 9