Delhi District Court
State vs Mangal on 24 April, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-WEST),
DWARKA COURTS, NEW DELHI
Presided by: Sh. Nitesh Goel
State Vs Mangal
FIR No. 449/20
PS Vikas Puri NITESH Digitally signed by
NITESH GOEL
U/S 33/38 Delhi Excise Act. GOEL Date: 2023.04.24
16:00:13 +0530
Date of institution : 10.03.2021
Date of reserving : 14.02.2023
Date of pronouncement : 24.04.2023
JUDGMENT
a) C.I.S. Number 3272/21
b) Date of commission of offence 09.06.2020
c) Name of the complainant HC Pawan Kumar
d) Name, parentage and address Mangal s/o Sh. Kailash r/o
of the accused House no. A 939 J. J. Colony,
Shiv Vihar, Delhi.
e) Offence complained of Section 33/38 Delhi Excise Act.
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 24.04.2023
BRIEF REASONS FOR THE JUDGMENT
1. Brief factual matrix of the present case is that on 09.06.2020 at about 6:40 pm in front of Kerla School Vikas Puri, Delhil within the jurisdiction of PS Vikas Puri accused was found in possession of 288 quarter bottles of Mast San- tara for sale in Haryana only without any permit or license. Accused is alleged to have committed offences U/S 33/38 Delhi Excise Act.
State Vs Mangal FIR No. 449/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 1
2. Chargesheet was filed and copy of the same was supplied to the ac- cused as per mandate of Section 207 Cr.PC. Charge was framed against the ac- cused for the offence under Section 33/38 Delhi Excise Act vide order dated 11.05.2022 to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined two witnesses.
4. PW 1 ASI Pawan Kumar has deposed that on 09.06.2020 he along with Ct. Satender was on patrolling duty in beat no. 3, New Krishna Park. At around 6:40 pm when they reached near Kerala School Vikas Puri, they noticed that one person was sitting on two plastic kattas, which were on the ground. After seeing the police party, accused tried to ran away towards Shanker Chowk. After chasing him for a few distance he and Ct. Satender caught him. They inquired regarding his running away from the spot and also inquired from him regarding ar- ticles in the plastic kattas. He informed that plastic is containing some house hold articles. On being suspicious we took that person near the plastic kattas at the spot. The plastic kattas were opened. Three paper cartoons were found in each of the Katta. Quarter bottles of illicit liquor were found in the cartoons. The appre- hended person discloses his name as Mangal. He informed regarding the same to Duty officer PS Vikas Puri telephoincally. As per information ASI Rampal reached at the spot. They handed over the apprehended person and the recovered illicit liquor to the IO. IO recorded his statement vide Ex. PW 1/A . The plastic kattas were checked by the IO. Each plastic katta was containing three carton paties. Each carton were containing 48 quarter bottles of illicit liquor make Mast santara for sale in Haryana only 180 ML. One quarter bottle as sample were taken out from each of cartons. The mouth of each sample quarter bottle was tied with the white colour cloth and sealed with the seal of RP. These samples were given S1 to S6. The remaining 47 x 6 quarter bottles were again put in their respective car- ton box. The carton boxes were again put in their respective plastic kattas. The mouth of plastic kattas were tied with white colour cloth. These were sealed with State Vs Mangal FIR No. 449/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 2 seal of RP. The carton boxes were given serial no. R1 to R6. IO filled form M 29. The seal was handed over after use to Ct. Satender. The case property was seized vide memo Ex. PW 1/B. Witness identify the signature of ASI Rampal as he had seen him writing and doing signature. The seal handing over memo was prepared by ASI Rampal which was exhibited as PW 1/C. ASI Rampal prepared rukka vide Ex. PW 1/D. The rukka was sent through CT. Satender for registration of FIR to PS Vikas Puri. After registration of FIR Ct. Satender came back at the spot and handed over the original rukka and copy of FIR for further investigation of the case. IO prepared site plan at his instance. Site plan was Ex. PW 1/E. Ac- cused was absent on the day of examination with the application that he would not disputed his identity. Accused was arrested vide memo Ex. PW 1/F. Personal search of accused was conducted vide memo Ex. PW 1/G. Disclosure statement of accused was recorded vide memo Ex. PW 1/H. Medical examination of ac- cused was conducted in DDU Hospital. Accused was put in lockup and case prop- erty was deposited in malkhana by the IO. IO recorded his statement u/s 161 Cr. PC in the PS. Witness identified the case property as Ex. PW 2/P1.
During his cross-examination he stated that he along with ASI Ram- phal and Ct. Satender left the spot at about 10:30 pm. They all went to DDU hos- pital in the private four wheeler vehicle of one of our police official. They reached at the PS about one hour after they left the spot. Case property was also taken in private car. They were on patrolling duty on that day. There are no residential houses and shops but public person were there. IO reached at the spot at about 7:20 pm on his motorcycle. Ct. Satender went to PS along with rukka at about 8:10 pm on the motorcycle of IO and came back at the spot at about 8:50 pm on the same motorcycle alone. Seizure memo was prepared before tehrir was sent to PS. Arrest memo and other documents were prepared at the spot. The private car belongs to him. The distance between spot and PS is about two kilometer. He de- nied that nothing incriminating has been recovered from the possession of ac- cused or at his instance or that all the proceeding were conducted while sitting in the PS. State Vs Mangal FIR No. 449/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 3
5. PW 2 HC Satender has deposed that on 09.06.2020 he along with HC Pawan was on patrolling duty in beat no. 3 and deposed on the lines of PW 1.
Witness was cross examined by ld. Defence Counsel. During cross- examination he deposed that he went to PS on his own motor cycle. ERV was called from PS and IO went in the said ERV. He wen to PS along with Tehrir on his motorcycle at about 7:00 pm and came back at the spot at about 7:15 pm on his own motorcycle. He do not remember which documents were prepared before registration of FIR. He further stated that there were no residential or shop at the spot but public persons were there. IO prepared all the documents and memos in his own handwriting. His statement was recorded in the PS by the IO. Arrest memo and other documents were also prepared in the PS.
6. Accused had admitted the DD no. 56A, DD no. 34 A and chemical examiner in U/s 294 r/w 313 r/w 281 Cr. PC and the same were exhibited as Ex. A1 to Ex A3.
7. Statement of accused was recorded u/S 313 Cr.P.C wherein all in- criminating evidence were put to him but he denied the entire evidence and pleaded that he was innocent and has been falsely implicated in this matter. How- ever, accused did not opt to lead defence evidence and the matter was posted for arguments.
8. Ld. APP for the State has submitted that the accused is liable to be convicted for the offence under Section 33 Delhi Excise Act on the basis of depositions made by various witnesses. It is submitted that the prosecution has proved its case against the accused beyond reasonable doubts. Therefore, accused is liable to be convicted.
State Vs Mangal FIR No. 449/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 4
9. On the other hand, Ld. defence counsel submitted that accused is innocent and has been falsely implicated in this matter. The case property has been falsely planted upon the accused and nothing was recovered from his possession. He submitted that no public person were made witness by the IO despite presence of public persons at the spot. He further submitted that accused be acquitted as the prosecution has failed to prove its case against the accused beyond reasonable doubts.
10. I have given my considerable thoughts to the submissions made by ld. APP for the State and ld. Defence counsel and perused the record.
11. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Since, there is a strong presumption of innocence in favour of the accused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
12. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
In another case titled as Mousam Singh Roy & ors. vs. State of West Benga (2003) 12 SCC 377 wherein it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It was further State Vs Mangal FIR No. 449/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 5 observed that it is a well settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
13. In the cross-examination of PW 1, PW 1 has stated that Ct Satender has gone to PS for registration of FIR on the motorcycle of the IO, however, PW 2 i.e. Ct. Satender in his cross-examination has stated that he has gone to PS on his own motorcycle.
14. Reverting to the facts of the present case the first thing that is pertinent to note is that FIR number is mentioned on the seizure memo Ex. PW1/B. It is the admitted case of the prosecution that the FIR was registered after the preparation of seizure memo PW1/B. In the tehrir Ex. PW 1/D, it has been mentioned by the IO that first and foremost thing is that he recorded the statement of PW 1 and thereafter he prepared the tehrir and then seized the case property and then sent Ct. Satender to PS for registration of FIR. It create a shadow of doubt that whether the IO has prepared the seizure memo on the spot or in the PS. The circumstances in which FIR number came to be mentioned in the aforesaid seizure memo appears to be suspicious. The possibility of planting of case property and preparing the documents after registration of the FIR cannot be ruled out.
15. Further, PW 1 and PW 2 have admitted that there were many public persons present at the time of alleged recovery from the accused however, none of them has been cited as a witness by the prosecution. The prosecution witnesses have admitted that they did not take the name and addresses of the said persons, neither any legal proceedings were initiated for not joining the investigation. There is nothing on record to show that IO had served any notice u/s 160 Cr. PC upon the person who refused to join the investigation. Section 100(4) of Cr. PC casts a duty upon the official conducting the search to join two respectable independent witnesses of the society. This also raises doubt about State Vs Mangal FIR No. 449/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 6 the authenticity of the alleged recovery from the accused as no public person was made witness despite their availability.
16. In the cross-examination of PW 2 he has stated that the arrest memo and other documents have been prepared in the PS. Therefore it creates doubt on the prosecution story and the fact that the recovery could be planted upon the accused cannot be ruled out.
17. The IO in the present case had not been examined as he got expired. Sufficient evidence are not placed on record which brings confidence to the court in convicting the accused. Further, there are some contradictions in the statement of PW 1 and PW2 and in the absence of the examination of any independent witness, the benefit of doubt must be given to the accused.
18. The upshot of the above discussion is that the alleged recovery from the accused has not been properly proved by the prosecution. There are many lacunae in the version of the prosecution. The possibility of the case property being planted upon the accused cannot be ruled out. Accordingly, accused Mangal is acquitted of offence under Section 33/38 Delhi Excise Act. Bail Bond u/s 437A Cr. PC has been directed to be furnished by the undersigned.
19. File be consigned to record room. NITESH Digitally signed by NITESH GOEL GOEL Date: 2023.04.24 16:00:26 +0530 Announced in open Court on 24.04.2023 Nitesh Goel Metropolitan Magistrate-05 (South-West)-
24.04.2023 State Vs Mangal FIR No. 449/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 7