Delhi District Court
State vs Rajender on 2 December, 2021
IN THE COURT OF MS. NEHA PANDEY, MM-06(N)
ROHINI COURTS: DELHI
State Vs Rajender
FIR No. : 22/2011
U/S : 33 of Delhi Excise Act
P.S. : Adarsh Nagar
JUDGMENT
a) CIS No. of the case : 5281433/2016
b) Date of institution of the case : 29.04.2011
c) Date of commission of offence : 29.01.2011
d) Name of the complainant : ASI Uday Singh,PS Adarsh
Nagar
e) Name & address of the : Rajender S/o Ram Suchit
Accused R/o House no.9.B/589, Lal
Bagh, Azadpur, Delhi.
f) Offence charged with : Section 33, Delhi Excise Act
g) Plea of the accused : Pleaded not guilty
h) Arguments heard on : 02.11.2021
i) Final order : Acquitted.
j) Date of Judgment : 02.12.2021
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Rajender has been sent to face trial with the allegations that on 29.01.2011 at around 9:00 pm, at Ram Leela Ground, Delhi within the jurisdiction of PS Adarsh Nagar, FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 1 of 12 accused was found having one plastic white colour bag(katta) on his left shoulder and on the identification of secret informer the said person was stopped by the raiding team consisting of ASI Uday Singh and other police officials and he was asked to put the said white colour bag (katta) on the ground. Upon checking the bag found to be containing 80 quarter bottles illicit liquor, out of which 44 quarter were branded as bonni Whisky special, 18 quarter branded as Bag Piper Whisky and 18 quarter were branded as "Kinnu Masaledar desi sharab" all for sale in Haryana Only without any licence or permit. Investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused person was consequently summoned. A charge u/s 33 Delhi Excise Act was framed against the accused on 08.05.2012 to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined total of six witnesses and exhibited documents.
4. The testimony of the prosecution witness in brief is discussed as follows:
5. PW-1HC Parphulia, who was posted as DO on the on the date of incident i.e 29.01.2011 and he stated on oath in his testimony that he registered the FIR in the present matter after receiving complaint(rukka) brought by Ct Ranbir Singh PW-4 which was sent by ASI Uday Singh (PW3). The said FIR is Ex.PW1/A. The said witness was not cross examined by the FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 2 of 12 defence.
6. PW 2 Ct Mehendi Hassan in his testimony on oath stated to have took the sample sealed with seal "USY" from MHC(M) on 24.03.2011 to deposit the sample in Excise lab. And he stated to have given the receipt on return to the MHC(M). The said witness was not cross examined by the defence.
7. PW 3 ASI Uday Singh stated on oath that on 29.01.2011 he was on patrolling duty and upon reaching Lal Bagh Jhuggi Area he met PW4 ASI Ranvir Singh and alongwith him on secret information they went to the spot where one person was to reach with illicit liquor and around 9:00 pm they apprehended the accused with illicit liquor as discussed above. The said witness stated to have collected the sample from each of the brand and remaining case property was kept in respective kattas and was sealed with the seal "USY" which was handed over to PW-4. He further stated to have prepared seizure memo Ex.PW4/A and rukka Ex.PW3/A and Form No.M-29 Ex.PW3/B and handed over the investigation alongwith duly sealed case property and the accused to HC Ram Asre PW5. On cross by the defence the said witness failed to give any details regarding DD entry vide which he left the police station on the date of incident for patrolling duty and he also admitted to have not made any public person part of investigation or part of raiding team. He stated that none of the public person agreed for the same. He also admitted to have not issued notice to the said public persons.
FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 3 of 12
8. PW-4 ASI Ranbir Singh who was part of the raiding team alongwith PW 3 and his testimony is on the same lines as of PW3 discussed above. He stated that seizure memo PW4/A and arrest memo of accused PW4/B, personal search memo PW4/C all bears his signature at point A. It is important to mention here that the case property in the present FIR was never physically produced in the court as it was submitted by MHC(M) that the same has been destroyed as per relevant order mark A-3 and A4. The photographs of case property of Mark A1 and A2 in unsealed condition also raises doubt about the seizure of case property i.e illicit liquor from possession of accused.
The said witness in his cross-examination by defence denied the suggestion of accused counsel that all the memos filed on record got prepared at the police station itself and nothing was recovered from the possession of accused.
9. PW 5 ASI Ram Asre who is the second IO of the present case stated to have arrested the accused, prepared the arrest memos and search memos Ex.PW4/B and PW4/C bearing his signature at point B and he also conducted the medical examination of the accused and prepared the site plan at the instance of PW4. In his cross- examination by defence counsel stated that at around 11:00 pm at Lal Bagh, he arrested the accused. He denied he suggestion of the defence counsel that accused was arrested at his residence and illicit liquor has been planted upon the accused.
10. PW 6 ASI Suresh Malik who conducted the further FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 4 of 12 investigation and collected three sealed samples bottles from MHC(M) on 24.03.2011 and gave the same to PW2 for deposition to Excise Lab and later said to have collected the result mark-A-5 and prepared the charge-sheet to be filed in the court. The said witness was not cross examined by the defence witness.
11. The witness mentioned at serial no.7 was not examined by the prosecution as chemical examination report Ex.C-1 was admitted by the accused vide separate statement in view of statement u/s 294 of Cr.P.C on 21.08.2018.
12. Prosecution evidence was thereafter closed.
13. Statement of accused was recorded u/s 313 Cr.PC on 01.10.2018, wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case and recovery of case property has been falsely implanted upon him. Further, the accused did not wish to lead defence evidence.
14. Final Arguments heard on 02.11.2011. Case file perused.
15. Short point for determination before the court is as under -
"Whether on 29.01.2011 at about 09:00 PM at near Ram Leela ground, Lal Bagh Jhuggi Azadpur, Delhi within the jurisdiction of PS Adarsh Nagar, accused was found in possession of illicit liquor of quantity and brand as mentioned in seizure memo Ex.PW4/A Mark-A 80 quarter bottles illicit liquor for Sale in Haryana only , without any licence or permit ?"
16. It is argued by Ld. APP for the state that from the ocular FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 5 of 12 and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of illicit alcohol without permit and submitted that accused be convicted of the offence charged.
17. Per contra, it is argued by the Ld. Counsel for the accused that he is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. Counsel that non joinder of public witness despite availability cast shadow on prosecution story. It is further argued by Ld. Counsel for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness. At the end, submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
18. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
19. In present case, prosecution was first duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But as dissolved above, the illilcit liquor seized in present matter was never produced before court except two photographs which itself is doubtful. Also the manner of conducting inquiry, seizure FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 6 of 12 and search etc. on the spot at the time of arrest of the accused and alleged recovery of liquor in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 09:00 PM and it is evident from the testimony of PW-3 and 4 that alleged illicit liquor was recovered at public place, but still no public independent person was cited as a witness in this case. Though PW-3 and 4 stated in their testimony that some public persons were requested to join, but none of them agreed. But they did not disclose the names of any such witnesses and further, PW-3 failed to depose that any notice was served on these witnesses and he also failed to bring anything on record as to why no such notice could be given, and therefore, merely making bald averments that public persons were requested to join, does not inspire confidence at all looking at the time, place of incident and overall facts and circumstances of the case. Therefore, it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution and all these facts makes the alleged recovery very doubtful.
20. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 7 of 12 made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers 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".
21. Similarly, in 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".
22. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held as under:
"It therefore emerges that non-compliance of these provisions FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 8 of 12 i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well- settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied]
23. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and substantiates the defence version that there is false implication of the accused in the present case and that the recovery has been falsely planted upon the accused. Further, considering facts and circumstances of the present case in the light FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 9 of 12 of ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the above-mentioned facts create serious doubt on the case of the prosecution.
24. As per the version of the prosecution, accused was in possession of illicit liquor. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where, illicit liquor was arranged by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same.
25. Moreover, the case property and accused remained in control of police officials till the case property was deposited in the Malkhana. Hence, tampering with the case property cannot be ruled out as the seal remained all along with the police officials. As per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the investigating officer with the seal of AK. As per the police report, after use the seal was handed over to Constable Sulechand, however, no handing over memo regarding the same was prepared. The seal in the present case was not handed over to any independent witness nor was it deposited in the Malkhana to assail the possibility of its misuse. Thus, the FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 10 of 12 possibility that the case property may have been tampered with cannot be ruled out.
26. Ordinarily, the FIR number should not find mention in the seizure memos, which came into existence before registration of the FIR. However, interestingly, the seizure memos Ex. PW4/A bears the FIR number and case details in the same ink in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. No explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memos Ex. PW4/A, when the FIR was registered subsequent to the alleged seizure of liquor from the possession of accused. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the liquor 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 liquor in the manner alleged by the prosecution.
27. Further, 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 FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 11 of 12 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, all these departure or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
28. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of liquor, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
29. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Rajender S/o Sh. Ram Suchit stands acquitted of the offence under section 33 of Delhi Excise Act, he has been charged with. Ordered accordingly.
Announced in the open court (Neha Pandey) on 02.12.2021 MM-06/North/Rohini FIR No.22/2011 PS Adarsh Nagar State vs. Rajender page 12 of 12