Delhi District Court
Fir No. 261/2015, Ps : New Ashok Nagar ... vs Sunil Kumar on 6 February, 2020
FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar
IN THE COURT OF ACMM (EAST DISTRICT)
KARKARDOOMA COURTS, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Sunil Kumar
FIR No. 261/2015
PS : New Ashok Nagar
U/s 33 Delhi Excise Act.
Date of Institution : 27.09.2016
Date of reserving of order : 06.02.2020
Date of Judgment : Oral
CNR No. DLET020077592016
JUDGMENT
1. Serial No. of the case : 14886/2016
2. Name of the Complainant : SI Neeraj Kumar
3. Date of incident : 22.02.2015
4. Name of accused person :
Mr. Sunil Kumar
S/o Sh. Raj Kumar Nain
R/o : H. No. S66, Village Saran, NIT
Faridabad, Haryana
5. Offence for which chargesheet
has been filed : S. 33 Delhi Excise Act.
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FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar
6. Offence for which charge
has been framed : S. 33 Delhi Excise Act.
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 06.02.2020
BRIEF REASONS FOR ORDER:
1. Mr. Sunil Kumar, the accused herein, has been chargesheeted for committing offence punishable under Section 33, the Delhi Excise Act.
2. The case of the prosecution is that on 22.02.2015, an information was given by a secret informer to SI Neeraj Kumar that one person was coming with illicit liquor at Noida Border, near Ruchika Petrol Pump, New Kondli, Delhi within the jurisdiction of PS New Ashok Nagar. The police official prepared a raiding party and apprehended the accused. The accused was found coming in a brown colour Canter bearing no. HR38R0811 containing 165 cartons of illicit liquor. He was apprehended alongwith the illicit liquor. On the basis of the complaint, present FIR was registered. After completion of investigation 'final report' was filed by the Page 2 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar Investigation Officer (IO) in the Court and the accused was chargesheeted for the offence punishable under Section 33, the Delhi Excise Act.
3. After perusing the record, cognizance was taken by the Court and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 33, the Delhi Excise Act, was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 04 witnesses to prove its case against the accused.
5. PW1 HC Narender is the police official who was with the complainant at the time of apprehension of the accused. He has deposed that on 22.05.2015 (sic), he was posted at PS New Ashok Nagar as constable. On that day, he was on patrolling duty near Ruchika Petrol Pump alongwith SI Neeraj Kumar and HC Sandeep. One secret Page 3 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar informer had reached there and informed SI Neeraj Kumar and HC Sandeep that one vehicle would come towards Ruchika Petrol Pump from Bharti Public School side carrying illicit liquor. On the basis of secret information, they started vehicle checking at Noida Border by putting barricades on the road. IO SI Neeraj requested passersby to join the investigation but none agreed. At about 07:30 PM, they saw one vehicle bearing registration number HR 38R0811 (red colour) coming from Bharti Public School side. SI Neeraj signaled the driver of the said vehicle to stop. Driver stopped the vehicle and started escaping from the spot. SI Neeraj overpowered driver of the vehicle with the help of police staff. Upon inquiry, accused revealed his name as Sunil Kumar. Thereafter, they checked the vehicle and found containing 165 cartons of illicit liquor inside the vehicle. Thereafter, they counted the bottles of liquor. The IO separated one bottle of each brand as sample. Remaining case property was kept in the respective gatta patties. The patties were kept in plastic kattas. They were sealed with the seal of NAN12. The IO handed over seal to him after use. The case property was seized vide memo Ex.
Page 4 of 22 ACMM/E/KKD/Delhi/06.02.2020FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar PW1/A. The vehicle was seized vide memo Ex. PW1/B. The IO prepared rukka and handed over to him for registration of FIR. He took the rukka to the PS and got the FIR registered. He returned at the spot with the second IO SI Sunil Kumar. The second IO prepared the site plan. He obtained the custody of case property and the accused. The second IO recorded the disclosure statement of the accused which is Ex. PW1/C. Second IO arrested the accused vide memo Ex. PW1/D. He conducted his personal search vide memo Ex. PW1/E. The witness identified the case property. The photograph of the destructed case property are Ex. A1 to Ex. A4. The order of destruction of case property is Mark A. Sample bottles are Ex.P1 to Ex.P7. The photographs of the vehicle are Mark A5 and Mark A6.
6. PW2 HC Sandeep is the police official who was present on the spot with the complainant and PW1. He has also deposed similar to PW1.
7. PW3 SI Sunil Kumar is the second IO of the case. He has deposed that after registration of FIR Page 5 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar investigation of the present case was marked to him. Ct. Narender had handed over the copy of FIR and original Tehrir to him. Thereafter he alongwith Ct. Narender reached at the spot where he met with SI Neeraj, HC Sandeep and accused and case property. He had conducted the investigation. He had prepared the site plan Ex.PW3/A. He had arrested the accused vide memo Ex.PW1/D. He conducted his personal search vide memo Ex.PW1/E. He recorded the disclosure statement Ex.PW1/C. He had prepared the challan and filed in the Court.
8. PW4 SI Neeraj Kumar is the complainant. He has deposed similar to PW1 and PW2.
9. The witnesses were cross examined. The accused admitted, under Section 294 Cr.P.C, the registration of FIR which is Ex.A1 and the excise control laboratory report which is Ex. A2.
10. The prosecution evidence was closed. Accused was examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied the incriminating evidence. He would state Page 6 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar that he was falsely implicated in the present.
11. The accused did not lead defence evidence. Therefore, matter was fixed for final arguments.
12. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identity of the accused has been established beyond reasonable doubts. All the ingredients of the offence have been proved by the prosecution. Hence the guilt of the accused has been proved. Therefore, it is prayed, the accused may be convicted.
13. Ld. Counsel for accused, on the other hand, would argue that nothing was recovered from the possession of accused at the time of his arrest and he has been falsely implicated in the present case. Ld. Counsel for accused would further contend that police had planted the said illicit liquor upon the accused with intention to send him behind bars and to settle some personal score. All prosecution witnesses are fellow police officials and they all are interested witnesses. No independent public person has been examined to prove the factum of recovery of Page 7 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar illicit liquor in question from accused despite spot in question being a thickly populated commercial and residential area. There are various contradictions in the testimonies of the prosecution witnesses. Benefit of doubt may be given to the accused and he may be acquitted.
14. I have heard the submissions and carefully perused the material available on record.
15. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court Page 8 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar
16. The accused herein has been charged for an offence punishable under section 33, the Delhi Excise Act. The Section reads as under:
"Section 33 Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or work; any manufactory or warehouse;
(c) bottles any liquor or purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than today or tan;
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not Page 9 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar be less than fifty thousand rupees but which may extend to one lakh rupees."
17. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or license and he was apprehended on the spot.
18. In order to bring home the charge against the accused, the prosecution is required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
19. Ld. APP for the state has relied upon Section 52 of the Delhi Excise Act. It has been argued that where the accused is charged of commission of the offence punishable Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary.
20. I have considered the submission. However, I am of the opinion that this is not the correct interpretation Page 10 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar of the law. Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of offence in certain cases. (1) In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily. (2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
21. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly show that it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused before the presumption under the aforesaid provision is being raised against the accused. It is only after the prosecution has proved the possession of the alleged Page 11 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar articles by the accused, that the accused can be called upon to account for the same. Now it has to be seen whether the prosecution has established beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor.
22. In the present case, the entire story of the prosecution is based on the fact of alleged recovery of illicit liquor. It is alleged by the prosecution that the accused was apprehended alongwith illicit liquor which he was carrying in a vehicle. The recovery is shown to be effected on a public road at 7.30 pm. However, as the record would reveal, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. PW1 HC Narender & PW2 HC Sandeep had stated in their examination that SI Neeraj had asked some public persons to join the raiding party. In crossexamination, SI Neeraj has also stated that he had asked public persons to join the proceedings. Thus, the place of recovery and apprehension of the accused is clearly located in an area where public persons were Page 12 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar readily available. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
23. There is nothing on record to show that the complainant or his fellow officials had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. It is shown on record that the complainant and the IO did not make any genuine efforts in the present case to get independent public witness joined the search proceedings despite spot being crowded area. No notice or warning had been given to public persons who had allegedly refused to join search Page 13 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar proceedings, which also creates doubt on the story of the prosecution. Nonavailability of a public witness is one thing and not joining public person as a witness despite their availability is altogether different thing. In case a public person is available, it is duty of the police official to make sincere efforts to persuade such person to join the legal proceedings to become a witness. However, in the present case no such efforts are shown to be made by the police officials. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, 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 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.'' Page 14 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar
24. In the present case, nonjoining of any public person as a witness creates doubt on the case of the prosecution.
25. This Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
26. Further as per the testimonies of the prosecution witness PW1, the sample of liquor and other case property were sealed by SI Neeraj Kumar with the seal of NAN12 and the seal was handed over to him after use. There is no handing over memo of the seal to show that seal was handed over to some independent witness.
Page 15 of 22 ACMM/E/KKD/Delhi/06.02.2020FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar Thus, the possibility that the case property might have been tampered with cannot be ruled out. Further, the case property was never produced in the Court to know whether it was in sealed condition or not. It creates doubts on the case of the prosecution in relation to alleged recovery and sealing of case property by the complainant.
27. Further the witnesses have stated that SI Neeraj had seized the liquor, the sample bottles and the excise form vide memo Ex. PW1/A. He had seized the vehicle vide memo Ex.PW1/B. Thereafter, he prepared the rukka. It is, therefore, clear that the seizure memo of the liquor and vehicle were prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo Ex. PW1/A & Ex.PW1/B. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before Page 16 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar registration of the FIR. However, interestingly, the seizure memo Ex. PW1/A & ExPW1/B bear the FIR number and case details in the same ink and the same handwriting in which the said documents were prepared. The same indicates that FIR number was mentioned on the said document while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:
"... 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. 36 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 Page 17 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar 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 have been recovered from the accused."
28. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the SubInspector Narender Kumar Tyagi (PW7), 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 State v. Om Prakash 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 Page 18 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar 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 recovery of the contraband in the manner alleged by the prosecution."
29. In the present case also, no explanation is available on record as to how the FIR number and case details had appeared on the seizure memo Ex. PW1/A & Ex. PW1/B. The same leads to only one conclusion that either the said documents were prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases a reasonable doubt has been raised on the case of the prosecution. The accused is therefore entitled to the benefit of reasonable doubts.
30. Further, the witnesses PW1, PW2 and PW4 have stated that they were on patrolling duty when the secret information was received. 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 Page 19 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II "The following matters shall, amongst others, be entered "(c) 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. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
"Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
31. In the present case, however, no DD entry record of the presence of PW1, PW2 and PW4 on the spot on patrolling duty is proved by the prosecution. Hence, the fact of presence of PW1, PW2 and PW4 on the spot where the accused was allegedly apprehended has come under the clouds of reasonable doubt. As already stated the public witness who could have deposed regarding the Page 20 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar presence of PW1, PW2 and PW4 on the spot have not been examined by the prosecution which also creates reasonable doubt on the case as projected by the prosecution.
32. In the light of the discussion hereinabove, I am of the opinion that the facts that no independent witness was cited or examined, possibility of misuse of seal has not been ruled out, the appearance of FIR number and case particulars on the seizure memo has not been explained, and the presence of witnesses on the spot has remained nt proved, are able to raise clouds of reasonable suspicion over the prosecution story. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
33. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused. The accused is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act.
34. Case property be confiscated to State as per rules.
35. The accused has already furnished bond under Page 21 of 22 ACMM/E/KKD/Delhi/06.02.2020 FIR No. 261/2015, PS : New Ashok Nagar State Vs Sunil Kumar Section 437A Cr.P.C, with one surety along with photographs and copies of address proof.
Digitally signed by DINESH DINESH KUMAR
Date:
KUMAR 2020.02.06
04:17:43
+0530
Pronounced in the open Court on (Dinesh Kumar) th this 06 day of February 2020. ACMM (East Distt) KKD Courts, Delhi.
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