Delhi District Court
State vs Soniya on 26 September, 2024
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, NEW DELHI
FIR No.: 862/2021
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 15309/2022
State
Vs.
Soniya
W/o Sh. Sachin
R/o H. No. A1-60/61, G Block,
Sitapuri II, Dabri, New Delhi. ..... Accused
S. No. of the case : 15309/2022
The date of offence : 10.10.2021
The name of the complainant : Jhabar Mal
The name of the accused : Soniya
The offence complained : 33 Delhi Excise Act
The plea of the accused : Pleaded not guilty
Argument heard on : 26.09.2024
The date of order : 26.09.2024
The final order : Acquittal
Brief Facts
1. It is the case of the prosecution that on 10.10.2021, HC Jatin was on patrolling duty in beat no. 3. During patrolling, when he reached near H. No. A-1/60/61, G Block, in front of Bus stand, Sitapuri, Part II, he saw accused sitting outside the house along with plastic katta. Upon suspicion, he ran towards her and asked her what is inside the plastic katta. Upon asking, she did not give any satisfactory answer and thereafter, he checked the plastic katta and found containing illicit liquor. He informed about this to the DO. Thereafter, SI Lal Chand along with W/HC Manoj Bala came to the spot. Thereafter, an FIR bearing no. 862/2021 u/s FIR No.: 862/2021 State versus Soniya Page No. 1 of 13 33 Delhi Excise Act was registered at PS Dabri. Investigation of the case was handed over to Investigating Officer SI Lal Chand who filed the chargesheet.
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Soniya. After taking cognizance of the offence, the accused was summoned to face trial.
3. On her appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against her, to which she had pleaded not guilty and claimed trial.
4. During the course of the trial the prosecution examined the following witnesses:
i. During the testimony of PW-1 HC Jatin, he stated that his name was Jhabar Mal and by order no. 1633-1733/CR/DWD dated 17.02.2022, his name had been changed to Jatin. He further stated that on 10.10.2021, he was posted at PS Dabri as Constable and on the same day, he was on patrolling duty in beat no. 3. That during patrolling when he reached near H. No. A-1/60/61 G Block, in front of bus stand Sitapuri, Part II, he saw accused sitting outside the house along with one plastic katta and on suspicion, he ran towards her and asked her what is inside the plastic katta. That upon asking, she did not give any satisfactory answer and thereafter, he checked the plastic katta and found containing illicit liquor. Thereafter, he informed about this to the DO and SI Lal Chand along with W/HC Manoj Bala came to the spot.
IO asked 4-5 public person to join the investigation but they refused to join the same by stating their personal reasons and without stating their names. He deposed that he handed over abovesaid plastic katta full of illicit liquor to the IO/SI Lal Chand and accused to W/HC Manoj Bala. That upon inspecting the said plastic katta by the IO, it was found containing total 48 quarter bottles of santra desi sharab for sale in FIR No.: 862/2021 State versus Soniya Page No. 2 of 13 Haryana only, 180 ml, from which one quarter bottle from plastic katta was taken as sample, the same was sealed with the seal of LCM and rest of the quarter bottles were placed in the white katta and sealed with the seal of LCM. He further asserts that IO prepared seizure memo vide Ex. PW1/A bearing his signature at point A and filled M29 form. After that IO recorded statement of the said witness which is Ex. PW1/B (bearing his signature at point A) and prepared the rukka Ex. PW1/C. After that IO gave him rukka for registration of FIR. Thereafter, he went to PS and got the FIR registered, after sometime, he came back at the spot and handed over copy of FIR and original rukka to IO. He stated that IO prepared the site plan at his instance Ex. PW1/D bearing his signature at point A and thereafter released the accused by giving notice under section 41A Cr.P.C. Ex. PW1/E. IO recorded statement of witnesses u/s 161 Cr.P.C. (The witness stated that he can identify the accused, however, the accused is absent and Ld. Counsel for accused submits that identity of accused was not disputed. Witness further identified the case property which had been produced by MHC(M) i.e. one unsealed sample of santra desi sharab for sale in Haryana only, 180 ml and the same is Ex.A1. Further, MHC(M) has also produced a copy of destruction order dated 09.03.2024 wherein present FIR is mentioned at S no. 37 of the same and same is marked as Ex. A2 (OSR) (colly).
ii. In his cross examination, PW-1 affirmed that IO came at the spot at about 04:00 PM and left the spot at about 06:00 PM. PW-1 further affirmed that he went to PS for registration of FIR at about 04:30 PM and came back at the spot at about 05:30 PM. PW-1 also affirmed that there were houses and shops near the spot and no notice was served to any public person and that no seal handing over memo was prepared in his presence. PW-1 affirmed that he does not know his departure or FIR No.: 862/2021 State versus Soniya Page No. 3 of 13 arrival entries pertaining to the day of incident. PW-1 affirmed that case property was taken to PS on his bike. PW-1 denied that nothing incriminating has been recovered from the possession of the accused or at the instance of accused or that all the proceedings had been conducted while sitting at PS or that he was deposing falsely. iii. In the testimony of PW-2 SI Lal Chand, PW-2 stated that on 10.10.2021, he was posted at PS Dabri as SI and on that day, on receiving DD No. 14A regarding the apprehension of accused along with illicit liquor he along with W/HC Manoj Bala and Ct. Satish reached at the spot i.e A-1, H. No. 60 and 61, Sitapuri Part II, Delhi where Ct. Jhabarmal (now HC Jatin) met him and handed over the accused along with recovered liquor to him . He stated that he requested some passers by to join the proceedings but none agreed and left the place without disclosing their names and address. Thereafter, the said katta was checked which was found containing 48 qtr. Bottles of santra desi sharab and thereafter, he took out one quarter bottle as sample and the rest of the case property sealed with the seal of LCM and that the sample bottles were also sealed with the seal of LCM. He deposed that form M-29 was filled up which is Mark Z bearing his signature at point X, Seizure memo of case property was prepared vide memo already Ex. PW1/A bearing his signature at point X. Thereafter, he recorded statement of Ct. Jhabarmal (now HC Jatin) which is already Ex.PW1/B bearing his attesting signature at point X and prepared a rukka already Ex.PW1/C bearing his signature at point X and handed over the same to PW-1 for the registration of the case. Thereafter, he went to PS and after getting the case registered returned to the spot and handed over the copy of FIR and original rukka to him. He asserts that he prepared the site plan already Ex.PW1/D bearing his signature at point X and that accused was allowed to leave on furnishing the undertaking as per the provisions of Section 41 Cr.P.C. already Ex. PW-1/E bearing his signature FIR No.: 862/2021 State versus Soniya Page No. 4 of 13 at point X. Thereafter, he left the spot case property and samples were deposited in the malkhana. He deposed that he recorded the statement of witnesses. (The witness stated that he can identify the accused, however the accused is absent and Ld. Counsel for accused submits that identity of accused is not disputed. The witness further stated that he can also identify the case property which has been produced by MHC(M) i.e. one unsealed sample of santra desi sharab for sale in Haryana only, 180 ml and same is already Ex.A1. MHC(M) has also produced a copy of destruction order dated 09.03.2024 wherein present FIR is mentioned at S no. 37 of the same as Ex. A2 (OSR) (colly).) iv. In his cross examination, PW-2 affirmed that he came at the spot at about 04:30 PM and left the spot at about 07:30 PM. PW-2 affirmed that Ct. Jhabarmal (now HC Jatin) went to PS for registration of FIR at about 06:20 PM and came back at the spot at about 06:45 PM. PW-2 further affirmed that there were houses and shops near the spot and no notice was served to any public person and that no seal handing over memo was prepared in his presence. PW-2 also affirmed that he does not know his arrival entry pertaining to the day of incident and that case property was taken to PS by Ct. Jhabarmal on his bike. PW-2 denied that nothing incriminating has been recovered from the possession of the accused or at the instance of accused or that all the proceedings had been conducted while sitting at PS or that I am deposing falsely.
5. Statement of accused was recorded on 13.03.2024 under Section 294 CRPC and she admitted the following documents:
(a) FIR No. 862/2021 PS-Dabri along with certificate u/s 65 B IEA as Ex. P1 (colly).
(b) GD No. 14A, 16A, 66A all dated 10.10.2021 as Ex.P2, Ex. P3 and Ex. P4 respectively.
(c) RC No. 70/21/22 as Mark X. FIR No.: 862/2021 State versus Soniya Page No. 5 of 13
(d) Excise Lab result as Ex. P5.
(e) Statement of HC Kanwar Pal as Ex. P6.
6. Thus, witness at serial No 2, 7, 9 and 10 were dropped from the list of witness.
Further, at the request of Ld. APP, wherein he submitted that witness at S no. 3 and 4 will depose the same facts as deposed by PW-1 and PW-2, the witness at S no. 3 and 4 were also dropped.
7. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC r/w Section 281 CrPC was recorded on 22.08.2024 wherein all the incriminating evidence appearing against the accused was put to her, which she had denied to be correct and submitted that she was not found in possession of illicit liquor. That she was falsely implicated in this present case. That she is innocent and all the witnesses deposing against her are interested witnesses. The accused chose not to lead any evidence in her defence.
8. It is argued by Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and she be, therefore, held guilty and convicted for the above-said offence.
9. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, she be, therefore, acquitted for the offence charged.
10. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court
11. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the FIR No.: 862/2021 State versus Soniya Page No. 6 of 13 burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed.
I. Non-joining of Public Witnesses
12. One of the arguments of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
13. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the testimony of PW-1 and PW-2 reveal that they have categorically stated that there were residential houses and public persons were passing by. They had also asked public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case.
14. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"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 FIR No.: 862/2021 State versus Soniya Page No. 7 of 13 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 (Emphasis supplied).
15. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case. II. No seal Handing over memo.
16. PW 2/IO in his cross examination stated that no seal handing over memo was prepared. PW-1 also stated that no seal handing over memo was prepared. Thus, in the instant case no handing over memo of the seal was prepared which can suggest that case property remained intact and there is no tampering with the same.
17. As per evidence available on record, the seal after use was not given to any independent public person. Further, there is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station or not. In such case, tampering with case property can also not be ruled out. As a result, the benefit of doubt has to be given to the accused. Reliance is placed upon the decision in Safiullah v. State, (1993) 49 DLT 193, where the Hon'ble High Court of Delhi observed:
FIR No.: 862/2021 State versus Soniya Page No. 8 of 13 "9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering 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 tempered with. ...... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
III. Discrepancy in the case qua Seizure Memo and Form M 29.
18. There exists yet another discrepancy in the case of the prosecution. PW 2/IO in his examination categorically stated that he prepared the seizure memo and Form M 29 and thereafter he recorded the statement of PW 1 and prepared the rukka and after the preparation of rukka he got the FIR registered through PW1. The same has been stated by PW 1 in his examination. Thus, it is clear from the testimony of PW-1 and PW-2/IO that the seizure memo and Form M 29 was prepared before the tehrir/original rukka was handed over by PW2 IO to PW1 for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the seizure memo and Form M 29, however, surprisingly it bears the FIR number and it is thus worth wondering that if the FIR was never registered at the time when the seizure memo and Form M 29 were prepared, how the FIR number came to be noted in the seizure memo and Form M 29 since the number of the FIR could have come to knowledge of PW 2/IO only after a copy of the FIR was brought to the spot by PW 1. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo and Form M 29, which came into existence before registration of the FIR.
FIR No.: 862/2021 State versus Soniya Page No. 9 of 13
19. In this context, Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to FIR No.: 862/2021 State versus Soniya Page No. 10 of 13 have been recovered from the accused."
20. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859 , the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) 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 situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about FIR No.: 862/2021 State versus Soniya Page No. 11 of 13 recovery of the contraband in the manner alleged by the prosecution."
21. In the light of the abovesaid judgments, the mentioning of the number of FIR in the seizure memo creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said document was prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution the benefit of which has to be given to the accused.
IV. No departure or the arrival entry of PW 1.
22. 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 a police official PW 1, who was on patrolling duty at the relevant time and place, as per the prosecution story.
23. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49 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 personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be placed upon Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
FIR No.: 862/2021 State versus Soniya Page No. 12 of 13 "if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts 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."
24. In the present matter there exists no entry which could even remotely suggest that PW 1 was assigned patrolling duty on the given date and time and he went for the purpose of patrolling at the given date and time.
25. Thus, in light of the above discussions which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that illicit liquor was recovered from the possession of the accused. The accused Soniya w/o Sh. Sachin is, therefore, acquitted of the offence u/s 33 Delhi Excise Act. Digitally signed by HARSHAL HARSHAL NEGI Announced in the open court on 26.09.2024. NEGI Date: 2024.09.26 14:59:12 +0530 (Harshal Negi) JMFC-02/Dwarka Court, New Delhi, 26.09.2024 It is certified that the present judgment runs into 13 pages and each page bears my signature. HARSHAL Digitally signed by HARSHAL NEGI NEGI Date: 2024.09.26 14:59:16 +0530 (Harshal Negi) JMFC-02/DwarkaCourt, New Delhi, 26.09.2024 FIR No.: 862/2021 State versus Soniya Page No. 13 of 13