Delhi District Court
State vs . Mukesh Kumar on 31 August, 2021
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 62/18
U/s : 33/38 Delhi Excise Act
P.S. : Ranhola
State Vs. Mukesh Kumar
JUDGMENT:
a)CNR No. : DLWT02-008864-2018 b) Sl. No. of the Case : 4569/18
c) Name & address of the : HC Ashok Kumar
complainant No.902/OD
PS Ranhola,N.Delhi
d) Name & address of : Mukesh Kumar
accused S/o Sh. Har Charan Singh
R/o H. No. R-3/A-2/56, Mohan
Garden, Uttam Nagar.
e) Date of Commission of : 24.01.2018
offence
f) Offence complained off : U/s 33/38 Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Acquitted
i) Date of such order : 31.08.2021
Date of Institution : 02.07.2018
Final arguments heard on : 31.08.2021
Judgment Pronounced on : 31.08.2021
FIR No: 62/18 State v. Mukesh Kumar Page No.1/15
AAKASH Digitally signed by
AAKASH SHARMA
SHARMA Date: 2021.08.31
15:07:18 +05'30'
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 24.01.2018 at about 09.30 PM at H. No. R-3/A2/56, Mohan Garden near Chandni Farm, Uttam Nagar, Delhi accused was found in possession of 5 gattapeties of illicit liquor out of which 3 peties contained 50 quarter bottles of 'Phalcons Asli Santra Desi Masaledar Sharab for sale in Haryana only' and remaining 2 gattapeties contained 50 quarter bottles of 'Spiced Country Masaledar Desi Sharab for sale in Haryana only' without any license or permit.
2. After investigation, challan for offence U/s 33/38 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33/38 Delhi Excise Act was framed against accused on 18.03.2019, to which he pleaded not guilty and claimed trial. FIR No: 62/18 State v. Mukesh Kumar Page No.2/15
AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:07:37 +05'30'
4. In support of its case, prosecution examined as many as three witnesses.
5. PW1 HC Jitender deposed that he and HC Ashok Kumar on 24.01.2018 at 6 PM left PS Ranhola for patrolling duty and at about 9:30 PM reached near GD Lancer Public School, Mohan Garden. When they reached at GD Lancer Public School, Mohan Garden, they met one secret informer who informed HC Ashok about illicit liquor carried by accused. Immediately they went near to the accused who was carrying one gattapeti on his shoulder. IO asked accused about the said gattapeti but he could not give any satisfactory answer. Near the accused, 4 other gattapeties were lying which were containing illicit liquor. HC Ashok informed about the same to PS Ranhola. After some time, ASI Bajrang Singh reached the spot to whom IO produced the custody of the accused and the recovered gattapeites which were containing illicit liquor. Thereafter ASI Bajrang FIR No: 62/18 State v. Mukesh Kumar Page No.3/15 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:07:49 +05'30' made inquiry from the accused on which he revealed his name as Mukesh Kumar. Thereafter, ASI Bajrang checked the gattapeties which were containing illicit liquor. IO asked 4-5 public persons to join the investigation of the present case but all of them refused to join the investigation and left the spot without disclosing their names and addresses. Without wasting time, IO checked those gattapeties among those, 3 gattapeties were found containing 50 quarter bottles each with the label of 'Phalcons Asli Santara Masaledar Deshi Sharab for sale in Haryana only' and 2 other gattapeties were found containing 50 quarter bottles each of 'Spiced Country Spirit Masaledar Deshi Sharab for sale in Haryana Only'. Those 5 gattapeties were given serial no. as 1 to 5. 2-2 quarter bottles from each gattapeties were taken out by the IO as sample and serial no. S1 to S10 was marked and remaining quarter bottles were put in the same gattapeties and the mouth of the gatta were sealed with the seal of 'PK' and samples bottles were kept in white FIR No: 62/18 State v. Mukesh Kumar Page No.4/15 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:08:01 +05'30' colour pullanda and sealed with the seal of 'PK'. Form M29 was prepared. Seal was handed over to PW1. The seizure memo of case property is Ex.PW1/A. Thereafter ASI Bajrang recorded the statement of HC Ashok and prepared rukka. The said rukka was handed over to PW1 which he took to PS, got the case registered and came back with the copy of FIR and original rukka and handed over the same to ASI Bajrang. IO prepared the site plan of the spot vide Ex.PW1/B. IO arrested the accused and conducted his personal search vide Ex.PW1/C and Ex.PW1/D respectively. IO also recorded disclosure statement of accused vide Ex.PW1/E. Case property and accused were brought to the PS. Confiscation order dated 24.05.2018 with the order of destruction dated 26.05.2018 with the report and its certificate under the seal and signatures of the SHO PS Ranhola along with photographs containing images of recovered quarter bottle of illicit liquor were produced in FIR No: 62/18 State v. Mukesh Kumar Page No.5/15 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:08:17 +05'30' the court. The case property is Ex.P-1 (colly) and documents are Ex.P-2(colly).
6. PW2 HC Ashok Kumar is the complainant who deposed that on 24.01.2018, he alongwith Ct. Jitender were on patrolling duty. At about 06.00 PM, they left the station for patrolling duty and when they reached at GD Lancer Public School, Mohan Garden, they met one secret informer who informed PW2 about illicit liquor carried by accused. Immediately they went near to the accused who was carrying one gattapeti on his shoulder at R-3, A-2/56, Mohan Garden, Delhi. PW2 asked accused about the said gattapeti but he could not give any satisfactory answer. Near the accused, 4 other gattapeties were lying which were containing illicit liquor. PW2 informed about the same to PS Ranhola. After some time, ASI Bajrang Singh reached the spot to whom he produced the custody of the accused and the recovered gattapeites which were found containing FIR No: 62/18 State v. Mukesh Kumar Page No.6/15 Digitally signed AAKASH by AAKASH SHARMA SHARMA Date: 2021.08.31 15:08:30 +05'30' illicit liquor. Thereafter ASI Bajrang made inquiry from the accused on which he revealed his name as Mukesh Kumar. Thereafter, ASI Bajrang checked the gattapeties which were containing illicit liquor. IO asked 4-5 public person to join the investigation of the present case but all of them refused to join the investigation and left the spot without disclosing their names and addresses. Without wasting time, IO checked those gattapeties among those, 3 gattapeties were found containing 50 quarter bottles each with the label of 'Phalcons Asli Santara Masaledar Deshi Sharab for sale in Haryana only' and 2 other gattapeties were found containing 50 quarter bottles each of 'Spiced Country Spirit Masaledar Deshi Sharab for sale in Haryana Only'. Those 5 gattapeties were given serial no. as 1 to 5. 2-2 quarter bottles from each gattapeties were taken out by the IO as sample and serial no. S1 to S10 was marked and remaining quarter bottles were put in the same gattapeties and the mouth of the gatta were sealed with the seal of PK and FIR No: 62/18 State v. Mukesh Kumar Page No.7/15 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:08:42 +05'30' samples bottles were kept in white colour pullanda and sealed with the seal of 'PK'. Form M29 was prepared. Seal was handed over to PW1 Ct, Jitender. The seizure memo of case property is Ex.PW1/A. Thereafter ASI Bajrang recorded the statement of PW2 vide Ex.PW2/A and prepared rukka which was handed over to PW1 Ct. Jitender which he took to PS, got the case registered and came back with the copy of FIR and original rukka and handed over the same to ASI Bajrang. IO prepared the site plan of the spot vide Ex.PW1/B. IO arrested the accused and conducted his personal search vide Ex.PW1/C and Ex.PW1/D respectively. IO also recorded disclosure statement of accused vide Ex.PW1/E.
7. ASI Bajrang Singh is the IO of the case. He deposed that on 24.05.2018, on receipt of DD No.60A, he reached at the spot where he met Ct. Jitender who produced the custody of accused Mukesh Kumar alongwith case property i.e. 5 FIR No: 62/18 State v. Mukesh Kumar Page No.8/15 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:08:56 +05'30' carton boxes of illicit liquor. He recorded the statement of HC Ashok Kumar vide Ex.PW2/A. He requested 3-4 public persons to join the investigation but none agreed and went away without disclosing their names and addresses. He checked the case property and found that 3 carton boxes were containing 50 quarter bottles each of illicit liquor of brand Falcons Santra Masaledar Desi Sharab for sale in Haryana only (180 ML each) and remaining 2 carton boxes were containing 50 quarter bottles each of illicit liquor of brand 'Asli Santara Masaledar Deshi Sharab for sale in Haryana Only (180 ML each). IO separated two quarter bottles from each carton box as sample and sealed them with the seal of PK. Remaining case property was also sealed with the seal of PK. IO filled form M-29 vide Ex.PW3/A. IO seized the case property vide seizure memo Ex.PW1/A. IO prepared rukka Ex.PW3/B and handed over the same to Ct. Jitender for registration of FIR from PS. PW1 went to PS and got FIR registered and returned back to the spot alongwith copy of FIR and original rukka and handed over the same to IO. IO put FIR No. and other particulars of the case on FIR No: 62/18 State v. Mukesh Kumar Page No.9/15 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:09:07 +05'30' the seizure memo. IO prepared site plan vide Ex.PW1/B at the instance of the complainant. He arrested and personally searched the accused vide Ex.PW1/C and Ex.PW1/D. He recorded the disclosure statement of accused vide Ex.PW1/E. Case property was deposited in malkhana and the accused was produced before the court and sent to JC. Samples were sent to Excise Lab and IO obtained the result vide Ex.A-4. IO recorded the statement of witnesses and prepared chargesheet.
7. After completion of prosecution evidence, all the incriminating evidence was put to accused u/s 313 Cr.P.C and his explanation was recorded, wherein he denied all the incriminating evidence against him. Accused chose not to lead DE.
8. The accused admitted FIR alongwith certificate u/s 65B of Indian Evidence Act, DD No. 60A dated24.01.2018 and DD No. 37B, chemical examination report, statement of Ct. Sahid FIR No: 62/18 State v. Mukesh Kumar Page No.10/15 Digitally signed AAKASH by AAKASH SHARMA SHARMA Date: 2021.08.31 15:09:23 +05'30' and RC No. 103/21/18 vide Ex.A-1 to Ex.A-6 u/s 294 Cr.P.C respectively.
9. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
10. It is a settled proposition of law that the burden of proof rests on the prosecution whereas the accused only needs to show reasonable doubt in his behalf. It is noticed that no independent material witness has deposed on behalf of prosecution. The testimonies available on record have been deposed by solely police witnesses. Therefore, the testimonies ought to be considered very carefully. It is deposed that IO asked 4-5 public persons to join the investigation but none joined and left without disclosing their names and addresses. But the IO did not note down the names of the public persons who refused to cooperate in the raid. There is no mention of the fact whether any notice was given by the IO to the public FIR No: 62/18 State v. Mukesh Kumar Page No.11/15 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:09:37 +05'30' persons to join the investigation since as such they are bound to cooperate with the IO on the legitimate request thereof. No independent witness has thus deposed on behalf of prosecution. It cannot be believed that accused was apprehended on secret tipoff within 50 metres of tipoff as it is hardly any distance and it has been deposed that accused was carrying 1 peti on his shoulder and 4 peties were lying near him. Although it is no doubt true that not in every case testimonies of police officials are to be looked upon with suspicion and as unworthy of reliance but the failure of the investigating agency to join witnesses especially when they are available or their presence can reasonably be secured with minimum efforts cast a doubt on the authenticity of the version put forth by the investigating agency. In present case, tipoff was received within 50 metres of spot where accused was apprehended with recovered case property, but still it took PW1 and PW2 about 8-10 minutes to catch the accused. This cannot be believed as such a short distance would have hardly taken 1 minute. The spot of apprehension is a FIR No: 62/18 State v. Mukesh Kumar Page No.12/15 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:09:51 +05'30' residential area, so the investigating agency had sufficient opportunity to include some respectable local resident of the area to witness the seizure. However, no independent witness was joined in the proceedings. Reliance is placed on the Hon'ble Delhi High Court decision in Nanak Chand V. State of Delhi, 1991 JCC(1).
11. It is also settled proposition that failure on the part of investigating agency to initiate action against such public person who does not join the investigation upon being served a notice to do so casts a doubt and is not worthy of credence. Reliance is placed on the Hon'ble Punjab and Haryana High Court decision in Roop Chand V. State of Haryana, 1999(1) CLR69. Accordingly, an adverse inference is drawn u/s 114(g) of Indian Evidence Act that such evidence, if produced would have been unfavourable to the case of the investigating agency which is why no independent witness was made by the IO to the alleged recovery. The most problematic and glaring hole in the case of the prosecution is FIR No: 62/18 State v. Mukesh Kumar Page No.13/15 AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:10:04 +05'30' that even though there is no police official among the raiding party whose name bears the initials 'PK' still seal of 'PK' was used to seal the pullanda of sample bottles and the seized gatta of case property. No explanation has been given as to how a wrong seal came into the possession of the IO/PW3. It is a settled proposition of law that the burden on prosecution is to prove its case beyond reasonable doubt. Having considered the record of the case, it would be unsafe to convict the accused without corroboration from an independent witness. The investigation officer ought to have included an independent witness during the seizure to bring credibility to the seizure of case property especially when the raid was conducted upon tipoff from secret informer and public persons were present at the spot where seizure was effected.
12. In view of my discussion herein above, it is held that prosecution has not been able to prove its case against the accused for the charged offences beyond reasonable doubt. FIR No: 62/18 State v. Mukesh Kumar Page No.14/15
AAKASH Digitally signed by AAKASH SHARMA SHARMA Date: 2021.08.31 15:10:23 +05'30' As a result of this, accused Mukesh Kumar is hereby acquitted of the charged offences u/s 33/38 Delhi Excise Act.
AAKASH Digitally signed by AAKASH
SHARMA
SHARMA Date: 2021.08.31 15:10:41
+05'30'
Dictated & Announced (AAKASH SHARMA)
in Open Court MM-08/West/Delhi
On the 31st day of August, 2021 31.08.2021
FIR No: 62/18 State v. Mukesh Kumar Page No.15/15