Delhi District Court
State vs . Rajiv on 15 February, 2020
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MAGISTRATE-02 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.29/18
PS Timarpur
State Vs. Rajiv
U/s 33 Delhi Excise Act
CIS No.13197/18
CNR No. DLCT-02-
JUDGMENT
(a) Sr. No. of the Case 13197/18
(b) Date of offence 12.02.2018
(c) Complainant HC Dharmender, No. 1184/N
(d) Accused Rajiv S/o. Sunil Kumar, R/o. 1845, Sanjay
Basti, Timapur, Delhi
(e) Offence 33 Delhi Excise Act
(f) Plea of accused Pleaded Not guilty
(g) Date of Institution 29.09.2018
(h) Final Order Acquitted
(i) Date when judgment was 15.02.2020
reserved
(j) Date of judgment 15.02.2020
1. The present FIR was registered at PS Timarpur against the accused namely Rajiv for the offence U/s 33 Delhi Excise Act.
2. The allegations against the accused that on 12.02.2018, at about 6:15 am, at public convenience/toilet no. 3CJ1058, Sanjay Basti, Timarpur, accused was found in possession of illicit liquor without any license, permit or pass and in contravention of FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.1 of 14 the notification issued by Delhi Administration. According to prosecution, the accused thereby committed offence punishable under Section 33 Delhi Excise Act, 2009.
COURT PROCEEDINGS
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused Rajiv in compliance of Section 207 Cr.P.C.
CHARGE
4. Thereafter, charge under Section 33 of Delhi Excise Act was framed against the accused Rajiv vide order dated 27.08.2019 passed by Ld. Predecessor to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
5. Vide order dated 17.12.2019, in compliance with the provisions of Section 294 Cr.P.C the accused admitted genuineness of documents regarding FIR Ex. AD-1, Endorsement upon rukka Ex. AD-2, Certificate under Section of Indian Evidence Act Ex. AD-3 and report of Excise Control Laboratory bearing No. SZD004922 dated 12.03.2018 Ex. AD-4. In view of admissions made, the evidence of HC/DO Rishikesh, Sh. Brijender Singh (Deputy Chemical Examiner) and Sh. Anil Kumar Sharma (Junior Lab Assistant) were dispensed with.
PROSECUTION EVIDENCE
6. In order to prove its case, prosecution has examined 05 witnesses.
FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.2 of 14
7. PW-1 is Ct. Arvind Kumar, who deposed that on 12.02.2018, he was posted as Ct. at PS Timarpur, that he was on night patrolling duty from 12:00 midnight to 7:00 am, that at about 6:15 am, when he reached at Sanjay Basti Timarpur, Delhi, one secret informer met him and informed him that one person is selling liquor near Sulabh Swachalya and if the said place is raided on time, he may be caught red handed, that he immediately went to the Sulabh Sawachalya No. 3CJ-105A,Sanjay Basti, Timarpur, Delhi, that on reaching the said place, he found the assistant engineer was already present there for the purpose of inspection of the said Swachalya in the routine manner, that the care taker of the Sawachalya i.e. accused Rajeev was also found present, that he also informed the AE about the information received by him from the secret informer and also requested him to accompany him in checking the said place, that he along with the AE inspected the room which was constructed adjacent to the swachyala in which the care taker was residing, that during the course of checking, he found one gatta patti which was placed beneath the charpai and on checking the same it was found containing eight quarter bottles on which "Santra Masaledar Desi Sharab"
for sale in Haryana only was written, that AE was also present with him at the spot, that AE immediately supplied the information at 100 number, that after sometime, IO from the PS Timarpur came to the spot to whom he narrated the whole incident of recovery of liquor, that he recorded his detailed statement which is Ex. PW-1/A, that he also prepared the tehrir on the basis of his complaint and got the FIR registered through Ct. Jitender, that after sometime Jitender came back to the spot and handed over the copy of FIR and original rukka to the IO, that IO prepared the site plan at his instance which is Ex. PW-1/B, that IO separated one quarter bottle for sample purposes and given the same a Sr. No. B-1 and kept the remaining bottles in the patti and prepared the pullanda and given the Sr. No. A-1, that both of them were sealed separately with the seal of AK, that liquor was taken into possession vide seizure memo Ex. PW-1/C, that efforts were made to join the public witness but none of them agreed, that accused was arrested vide arrest memo Ex. PW-1/D, that disclosure statement was also recorded which is Ex. PW-1/E. Thereafter, MHC(M) has brought the case property of the case i.e. quarter bottles, that the same was wrapped in a clothe sealed with the FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.3 of 14 seal of 'AK', that same was opened and shown to the witness, who correctly identified by the witness, that the same are Ex. P-1.
8. In the cross examination, PW-1 deposed that he left the PS at about 12:00 midnight, that the secret information was not reduced into the writing, that the said information was not supplied to the senior officers, that he do not remember the distance between Sulabh Sawchalya and the place where he met with the secret informer, that in his presence AE did not sign any document, that in his presence no document was seized by the IO which reflects that the accused was the care taker of the said Sulabh Sawchalya. He admitted that said Sulabh Swachalya is manged by the Government. He further deposed that the AE remained at the spot upto the time of arrest of the accused, that after reaching the spot, IO firstly prepared the tehrir, that he do not remember whether IO had prepared the recovery memo prior to the seizure memo, that IO had prepared the tehrir prior to the preparation the seizure memo, that no public person was present at the Sulabh Swachalya as it was early hours of the day, that in his presence IO did not ask the AE to sign any of the document, that IO did not seize any lock/keys of the Sulabh Swachalya in his presence, that in his presence IO did not inquire from any person as to who actually remain in the Sulabh Swachalya, that after the recovery some public persons had visited the Sulabh Swachalya and were asked to join the recovery/investigation, however, none of the agreed and left the spot without mentioning their name and addresses. No identity card of the accused was found which reflect that accused was working the care taker in the Sulabh Swachalya. No register of maintenance was found in the Sulabh Swachalya. In his presence, IO did not inquire about the source of liquor from them accused. He admitted that no separate sample was taken out from every quarter bottle recovered from the possession of accused. He denied that he is deposing falsely.
9. PW-2 is Shailender Varsheny, who deposed that on 12.02.2018, he was working as Executive Engineer at DUSIB, that one surprise inspection of Sulabh Swachalya was conducted by Ms. Swati Maliwal, Chairperson, DCW and CEO, DUSIB, that he was FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.4 of 14 also a part of the inspection of team, that during the course of inspection they also visited J.J. Basti, Sanjay Basti, Timarpur, Delhi, that they had also visited Sulabh Swachalya No. 03CJ1058 in the said J.J. Basti managed by O&M Agency, M/s. Delhi Pariyavaran Vikas Samiti, that on the complaint of the local residence, Chairperson, DCW, checked the room of the care taker and eight quarter bottles of liquor were found in the room of the care taker, that the call was made at 100 number and police officials came at the spot to whom the whole story of recovery of liquor was narrated, that police conducted the investigation, that police seized the recovered liquor and took the same to the police station along with the accused. He further deposed that he cannot identify the person from whose possession the recovery of the liquor was effected.
10. In the cross examination by Ld. APP for the State, the attention of the witness is drawn towards the accused with a suggestion that he was the care taker of Sulabh Swachalya from whose possession the recovery of liquor was effected, however, witness failed to identify the accused despite the suggestion. Thereafter, the attention of the witness drawn towards his statement recorded under Section 161 Cr.P.C mark X and specifically mark from A to A1 where he has informed the police that Ct. Arvind was already present at the Sulabh Swachayala when he had reached the said place with the inspection team, however, witness replied that he never stated so to the police. The attention of the witness drawn towards his statement recorded under Section 161 Cr.P.C mark X and specifically mark from B to B1 where he has informed the police that Ct. Arvind had also participated in the process of recovery and also the process of seizure was done in his presence, however, witness again replied that he never stated so to the police. He denied that he is deposing falsely.
11. PW-3 is HC Shyam Lal, who deposed that on 23.023.2018, he collected the samples from the MHC(M) and deposited the same in the Excise Lab, ITO, Delhi vide RC No. 18/21/18, that case property was not tampered with till it remained in his possession.
12. In the cross examination, PW-3n deposed that he do not remember at what time he FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.5 of 14 had collected the samples from the MHC(M), that he had gone to deposit samples on his motorcycle. He denied that he had not gone to deposit the samples at Excise Lab. He further deposed that IO had instructed him in the police station for depositing the samples in the lab. He denied that he is deposing falsely.
13. PW-4 is HC Dharmender, who deposed that on 02.07.2018, the investigation of the present case was assigned to him and he was the 3 rd IO of the present case, that he repaired the challan and filed the same in the Court.
14. PW-5 is ASI Ashok Tyagi, who deposed that on 12.02.2018, he was posted at PS Timarpur as ASI, that he was present in the PS, that on receiving DD No. 13-A which is Ex. PW-5/A regarding apprehension of one person while selling illicit liquor at Sanjay Basti Timarpur, Delhi, he along with Ct. Jitender reached at the spot i.e. Public Convenience Toilet Sanjay Basti Timarpur, Delhi, where he met Ct. Arvind along with one Shailder Kumar Varshney (Executive Engineer) who investigates the Public Toilets around Delhi, that Ct. Arvind produced one person along with the illicit liquor stating that he was selling the illicit liquor, that Ct. Arvind also handed over to him his written complaint which is Ex. PW-1/A, that he prepared rukka which is Ex. PW-5/B and handed over the same Ct. Jitender for registration of FIR, that he accordingly went to PS for registration of FIR, that there were total eight quarter bottles of illicit liquor of 180 ml having label 'Santra Masledar Desi Sharab for sale in Haryana only', that one sample bottle was taken out and the cap of sample bottle was tied with the white cloth, that he seized the remaining seven quarter bottles vide seizure memo Ex. PW-1/C, that all the the case property was sealed with the seal of 'AK', that serial Number A-1 was given to seven quarter bottles and Serial Number B-1 was given to sample bottles, that Form M-29 is Ex. PW-5/C was filled at the spot, that in the meantime, Ct. Jitender came at the spot along with copy of FIR and original rukka and handed over the same to him, that seal after used was handed over to Ct. Jitender, that he prepared the site plan at the instance of Ct. Arvind Ex.PW-1/B, that he recorded the disclosure statement of accused Ex.PW1/E, that accused Rajiv was arrested vide arrest memo Ex.PW-1/D FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.6 of 14 and his personal search was conducted vide memo Ex. PW-5/D, that recovered illicit liquor was taken to PS along-with accused, Ct. Jitender and Ct. Arvind, that case property was deposited in malkhana of PS and the accused was produced before the concerned Court and sent to JC, that case property is Ex. P-1 (colly).
15. In the cross examination, PW-5 deposed that he has not taken employment proof/record of accused, that he has recorded the statement of Sh. Shailender Varshney who was on duty for inspecting public toilets, that he has not taken any documentary proof in respect of working of accused as Care Taker in the public toilet, that he has not seized the register maintained at the public toilet, that after checking the illicit liquor bottles, he took out one sample out of 8 illicit liquor quarter bottles, that seal was handed over to him by Ct. Jitender after the accused was produced in the Court, that he has not joined any public person to the investigation, however, public persons were present at the spot, that he has not issued any notice to those public persons who refused to join the investigation, that before seizing of case property, he has prepared the seizure memo of the case property, that he has produced the case property before the SHO, however, he did not obtain the seal of SHO on the case property, that he had also not recorded the statement of SHO in respect of producing the case property before the SHO, that he had also not seized any document/clothes of the accused from the room in respect of his possession in the said room, that he has prepared three copies of Form-29. He denied that nothing has been recovered from the accused and case property is planted upon the accused. He admitted that the seizure memo Ex. PW-1/C was written from top to bottom as it is when he obtained the signature of accused on the said seizure memo, that same is his reply in respect to the site plan. He further deposed that there is no investigation so as to find out the source of illicit liquor seized in the present matter. He admitted that no PC of accused was obtained from the Court so as to find out the source of illicit liquor. He denied that nothing recovered from the accused and he is deposing falsely.evide
16. It is pertinent to mention here that vide separate statements of Ld. APP for the State FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.7 of 14 dated 07.01.2020 witness namely Ct. Jitender was dropped from the list of witnesses as other witnesses have already been examined on the same lines.
17. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
18. Statement of the accused Rajiv under Section 313 Cr.PC was recorded vide order dated 13.02.2020 by putting entire incriminating evidence to the accused. He denied the allegations against him and stated that he has been falsely implicated in the present case. Accused chose not to lead DE, accordingly, Defence evidence was closed and matter was fixed for final arguments.
19. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
20. In the case in hand the accused Rajiv is charge for the offence u/s 33 Delhi Excise Act.
21. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant/ state in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed as follows:-
FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.8 of 14
22. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. Perusal of the record shows that the place of apprehension of accused alongwith illicit liquor was a Public Convenience (Sulabh Swachalya) despite that no efforts made by the IO to join the public/independent witness who were present in the aforesaid Sulbab Swachalya in the case in hand. It is apparent from the testimony of PWs that all the proceedings regarding seizure and sealing of case property was done by police officials who were posted in the same police station and not by any independent witness which makes it highly probable that the entire proceeding were conducted at the police station, that the case property was tampered with and that the alleged recovery was planted upon the accused at the police station.
23. PWs have categorically deposed about presence of independent public witnesses in the aforesaid Sulbabh Swachalya except Shailender Varsheny (Asst. Engineer) who was part of inspecting team, however, no sincere efforts have been made to join them in investigation.
24. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining independent witnesses.
25. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
26. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.9 of 14 present case, it is evident that no such sincere efforts have been made, particularly when we find that place was residential area and one or two persons from the locality could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the public persons had declined to join the raiding party, the police could have later on taken legal action against such persons because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
27. In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. 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".
28. Considering the aforesaid observations made by the Higher Courts, the omissions /failure on the part of investigating agency to join independent public witnesses creates reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
29. Furthermore, the testimony of PW/IO/ASI Ashok Tyagi shows that seizure memo Ex. PW-1/C and Form M-39 Ex. PW-5/C was prepared before sending the rukka. However, perusal of the said document clearly shows that the FIR number and other particulars FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.10 of 14 of the present case are mentioned on the said document. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those document which were prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
30. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.11 of 14 would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
31. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
32. It is pertinent to mention here that investigation of the IO is silent regarding the source of liquor and IO had not inquired from the accused about the source of liquor recovered from the accused for the reasons best known to him.
33. PW-1 categorically deposed in his examination when he reached at the Sulabh Swachayala, assistant engineer who was on inspection was already present there whereas as per the case of prosecution Ct. Arvind was already present at the Sulabh Swachalya, thereby contradicting the case of prosecution.
34. PW-1 categorically deposed in his cross examination that no public person was present at the Sulabh Swachalya as it was early hour. The aforesaid testimony of PW-1 is not reliable as place of recovery was public convenience place where presence of public witness in the early hours cannot be denied.
35. In the examination in chief PW-1 categorically deposed that IO separated one quarter bottle for sample purposes, however, in the cross examination he admitted that no separate sample was taken out from every quarter bottle recovered from the FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.12 of 14 possession of accused, thereby contradicting his own testimony regarding the separation of sample bottle from the recovered quarter bottles.
36. PW-5 categorically deposed in his cross examination that he has not taken any employment proof/record of accused and he has not taken any documentary proof in respect of working of accused as Care Taker in the public toilet. Furthermore, PW-5 has inquired from any public person whether actually accused was working at the aforesaid place or not. In view of aforesaid testimony of PW-5, prosecution miserably failed to prove, whether accused was actually working in the aforesaid Public Convenience or and this also reflect bad investigation.
37. PW-5 also deposed that he has not seized any register maintained at the Public Convenience, thereby again reflecting bad investigation.
38. As per the testimony of PW-1, Assistant Engineer (PW-2) made call at 100 number in his presence, whereas as per the testimony of PW-2 after recovery of case property he made a call at 100 number and only thereafter, police came at the spot seized the case property, thereby contradicting the testimony of PW-1 regarding presence of PW-1 at the spot while he made a call at 100 number.
39. It is pertinent to mention here that as per the prosecution story, PW-2 has inspected the aforesaid place firstly and recovered the case property, however, PW2 miserably failed to identify the accused despite his attention being drawn specifically towards the accused by ld. APP for the State, thereby he denied the case of proseuction in toto.
40. Even PW-2 has denied the presence of Ct. Arvind when he had reached at the spot and also denied the fact that Ct. Arvind also participated in the process of recovery of case property, thereby he categorically denied the case of prosecution.
41. The onus and duty to prove the case against the accused is upon the prosecution and FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.13 of 14 the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
42. Perusal of record reveals that information about the illicit liquor was given by some secret informer and said secret informer played an important role in initiating the proceedings and for nabbing the accused. However, no plausible explanation has been given for not citing and examining said secret informer as witness in order to prove the case of prosecution for the reasons best known to the investigating agency. Furthermore, secret information has not been reduced in writing and not supplied to senior officer, thereby reflecting bad investigation.
43. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, failure of identity of accused by the key witness, non joining and examination of independent public witnesses, bad investigation, contradiction in the testimony of PWs, the prosecution has failed to establish its case against the accused beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Rajiv stands acquitted of the offence u/s 33 Delhi Excise Act accordingly.
44. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
45. File be consigned to the record room after due compliance. Digitally signed by Announced and Signed in the Open Court SHILPI SHILPI JAIN Date:
on 15.02.2020 (Shilpi Jain)
JAIN 2020.02.17
MM-02 (Central)/THC/Delhi
15.02.2020 17:17:24
+0530
FIR No. 29/18 PS Timarpour State Vs. Rajeev Page no.14 of 14