Delhi District Court
State vs . Babloo on 25 October, 2013
-: 1 :-
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN
MAGISTRATE08,WEST DISTRICT, DELHI
STATE VS. Babloo
FIR NO: 85/11
P. S. Kirti Nagar
U/s 33 Delhi Excise Act
Unique ID No. 02401R0464372011
JUDGMENT
Sl. No. of the case : 41/2(03.10.2011)
Date of its institution : 09.08.2010
Name of the complainant : HC Rajeev Kumar
Date of Commission of offence : 19.03.2011
Name of the accused : Babloo
S/o Sh.Udal
R/o Jhuggi no. 578, Plot
no. 5/35, Indl. Area, Kirti
Nagar.
Offence complained of : U/s 33/38 Delhi Excise Act
Plea of accused : Pleaded not guilty
Case reserved for orders : 10.09.2013
Date of judgment : 25.10.2013
Final Order : Convicted
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the aforesaid accused upon the police report filed by Police Station Kirti Nagar U/s 33/38 FIR No. 85/11 STATE VS. Babloo -: 2 :- Delhi Excise Act.
2. The prosecution story is that on 19.03.2011 at about 5:50 p.m. at railway line old crossing 5/35 Indl. Area, Kirti Nagar, the accused was found in possession of two plastic bags containing 48 quarters bottles of illicit liquor bottles labelled with Besto Whiskey for Sale in Haryana only without any permit or license and thereby committed an offence punishable U/s 33/38 Delhi Excise Act.
3. After completing the formalities, the investigation was carried out by police station Kirti Nagar and a charge sheet was filed against the accused. The charge against the accused was framed under section 33/38 Delhi Excise Act to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined seven witnesses.
5. PW1 ASI Balwan Singh deposed that on 19.03.2011 he was posted in Excise Department as HC and on that day he was on petrolling in the area of police station Kirti Nagar and met with HC Rajeev Kumar and Ct. Shiv Prasad in Industrial Area. At about 05:50 pm they reached at Railway Line Fatak(Railway Crossing) and saw accused whom he identified in the court was coming from the side of Pandav Nagar and was carrying a weighted Plastic Katta. On FIR No. 85/11 STATE VS. Babloo -: 3 :- suspicion, they apprehended him and checked the said Plastic Katta and found two Carton boxes each containing 24 quarter bottles of liquor labeled with BESTO Whisky for sale in Haryana only of 180 ML. Out of which one quarter bottle of liquor each were separated as sample , duly covered with the help of cloth and stitched and sealed with the seal of RKT and samples were given serial no. 1 to 2. The remaining liquor quarter bottles were put back in the same carton boxes duly sealed, the carton boxes were put back in the same plastic katta and also sealed with the seal of RKT, form M29 was prepared and seal after used was handed over to Ct. Shiv Prasad and recovered liquor was taken into possession through seizure memo Ex. PW1/A. IO prepared rukka and Ct. Shiv Prasad took the same to the police station and came back at the spot alongwith HC Ghanshyam, who did the further investigation in this case and prepared site plan, arrested accused Babloo in this case and prepared arrest memo Ex. PW1/B and personal search memo Ex. PW1/C. He proved the case property in the court as Ex.P1.
6. PW2 HC Pooran Mal proved that on 19.03.2011 he received the case property of this case sealed with the seal of RKT alongwith Excise Form through HC Ghansham. He was the Malkhana Incharge on that day in the police station. He FIR No. 85/11 STATE VS. Babloo -: 4 :- proved the relevant entry in the register 19 as Ex. PW2/A. On 31.03.2011 on the instructions of IO he handed over the samples of the case property alongwith the Excise Form to Ct. Jitender for depositing the same to Excise office He proved that when the case property was in his possession it was neither tampered and therefore was in his safe custody.
7. PW3 HC Rajeev Tyagi and PW4 Ct. Shiv Prasad who were present with PW1 has also proved and corroborated the statement of PW1 regarding the recovery of illicit liquor from the possession of the accused.
8. PW5 is Ct. Jitender who on 31.03.2011 took the samples of the case property to the excise laboratory. He deposed that during his possession the case property was not tampered nor allowed to be tampered.
9. PW6 is ASI Tara Dutt who was the duty officer on the date of the recovery of illicit liquor. He proved the FIR Ex. PW6/A and his endorsement on the rukka as Ex. PW6/B.
10. PW7 HC Ghansham deposed that On 19.03.2011 he was posted at police station Kirti Nagar and on that day on the instructions of duty officer he went at the spot at Railway Line, Old Fattak, near Industrial Area, Kirti Nagar with Ct. Shiv Prasad. Shiv Prasad also handed over to him rukka and copy of FIR for further investigation in this case. At the spot FIR No. 85/11 STATE VS. Babloo -: 5 :- HC Rajeev and HC Balwan alongwith accused met them. HC Rajeev handed over to him the prepared documents ie. Seizure memo, form M29, sealed case property that was one sealed plastic katta containing quarter bottles and two sealed quarter bottles as sample alongwith the accused Bablu. He added FIR no. 85/11 on the seizure memo , inspected the spot and prepared the site plan at the instance of HC Rajeev Kumar, the same is Ex. PW7/A. He also made efforts to join the public persons but none agreed to join them. He recorded the statement of HC Rajeev and then HC. Rajeev left the spot. He arrested the accused Bablu in this case and prepared arrest memo already Ex. PW1/B and personal search memo already Ex. PW1/C. He sent information regarding the arrest of the accused at his house. The accused was sent to medical examination through Ct. Shiv Prasad and then they came back to police station and he deposited the case property in malkhana. Ct. Shiv Prasad came back at the police station alongwith the accused and handed over the MLC of the accused. He also recorded the statement of witnesses. He further deposed that 31.03.2011 on his instructions Ct. Jitender obtained the sealed samples and form M29 from MHC(M) HC Puran and took the same to the excise office vide RC no. 22/21 and after depositing the same he handed FIR No. 85/11 STATE VS. Babloo -: 6 :- over the receipt to the MHC(M) then he recorded the statement of both the witnesses in this regard. He collected excise result, the same is Ex. PW7/B and after completion of investigation, filed the chargesheet in the court.
11. This is the overall prosecution's evidence in this case.
12. After the prosecution's evidence was closed, accused was examined u/s 313 Cr.PC wherein all incriminating evidence were put to the accused which he denied and had not lead defence evidence.
13. It has been argued by Ld. APP for the State that the case of the prosecution has been proved beyond reasonable doubt by the testimony of the witnesses examined on behalf of prosecution and the only irresistible conclusion is the conviction of the accused.
14. On the other hand, it has been argued by counsel for accused that there are grave lacuna in the prosecution's case and public witnesses are not joined in the investigation of the case. Ld. defence counsel has certain contradictions in the testimony of the witnesses and that the accused has been falsely implicated. It is also argued that the accused should be acquitted.
15. Having dealt with the submissions advanced by both FIR No. 85/11 STATE VS. Babloo -: 7 :- the parties, I proceed to adjudicate upon the most important question involved in the present case: Whether the accused is guilty of the offence with which he is charged or not.
16. The allegations of the prosecution upon the accused are that he was found in possession of a plastic bag containing 48 quarter bottles of illicit liquor with name of BESTO whisky for sale in Haryana only. The total number of quarter bottles of illicit liquor were 48, therefore, the total quantity of illicit liquor found in possession of the accused as per seizure memo Ex.PW1/A will be around 8.64 litres because the quantity in one bottle was approximately was 180 ml. as per excise result PW7/B and the testimony of other prosecution witnesses. Therefore, as per the prosecution case, accused was found in possession of 48 bottles of whisky of 180 ml each at the time when he was apprehended by PW1, PW3 and PW4 who were on patrolling duty on 19.03.2011 when they saw that accused carrying a weighted plastic katta on his shoulder. All these witnesses saw him and on suspicion they checked the contraband which found to be 48 quarter bottles of illicit liquor. This is clearly proved in the evidence of PW1,PW3 and PW4. Thereafter, information was sent to the concerned police station from where the IO HC Ghansyam came on the spot. He seized the FIR No. 85/11 STATE VS. Babloo -: 8 :- illicit liquor found in possession of the accused and took out one liquor bottle from each of the cartons as sample. Remaining case property was seized and sealed with the seal of RKT. Form M29 was filled at the spot and case property was deposited in police malkhana from where it was sent to Excise Laboratory. PW5 Ct. Jeetender proved that on 31.03.2011 the samples were deposited at Excise Office and during his possession there was no tempering with the case property. The case property was proved in the court as Ex.P1. IO has proved the investigation of this case. The report of Excise Laboratory has also been duly proved as Ex.PW7/B and the result clearly shows that the presence of Ethyl Alcohol is positive. Form M 29 has been proved as Ex.PW3/A. Seizure memo has been duly proved as Ex.PW1/A. In the present case PW1,PW3 and PW4 have categorically deposed that the accused was in possession of illicit liquor. These witnesses have apprehended the accused red handed with the illicit liquor. They are the best witnesses to describe the possession and recovery. There is no reason that why they would frame an innocent person in such a serious offence which they have alleged completely knowing its implications without any previous enmity with the accused. There is no suggestion in the cross examination of these witnesses or in FIR No. 85/11 STATE VS. Babloo -: 9 :- the examination of accused u/s 313 Cr.PC regarding any motive of false implication on behalf of complainant or any enemity with the complainant. Since the witnesses themselves have apprehended the accused, it would require very convincing submissions to discard the evidence of the these witnesses when the story propounded by them seems to be most probable. It is not the case of the accused that he was not present at the spot of incident nor he plead any kind of alibi in this case. The testimony of the witnesses does not appears to be embellished or embroidered in respect of the offence committed nor could be impeached in their cross examination. In the present case, therefore the occurrence of the offence is proved by the witnesses against the accused and there is no good reason to discard their testimony which is found to be consistent and reliable and also inspires confidence. The FIR was promptly registered and their was no opportunity to the complainant to embellish or falsely implicate the accused. Testimonies of all the witnesses are corroborated in material particulars with each other. The witnesses has been duly cross examined but still there is nothing in there testimony to impeach their credit. All of them have categorically deposed the place and the manner in which the liquor was recovered and therefore I am of the FIR No. 85/11 STATE VS. Babloo -: 10 :- view that the testimonies, of these witnesses inspires confidence and the probative force in their testimony is so strong so as to convict the accused.
17. In this way, it has been clearly proved that the accused was found in possession of illicit liquor amounting to 48 quarter bottles. Basically for proving the offence under section 33 Delhi Excise Act, the possession has to be proved beyond permissible limits. That it was liquor has been proved by the result of Excise Laboratory. Investigating officer has proved the investigation of this case. The word Alcohol has been defined in Section 2 of Delhi Excise Act, 2009 which means Ethyl Alcohol of all strength and purity. The Excise Result shows the contraband in possession of accused was Ethyl Alcohol. The possession of contraband by the accused has been duly proved as discussed above. The investigating officer has proved sealing of the case property and PW2 and PW5 has proved the sanctity of case property in their possession. Case property was also proved in the court as Ex.P1.
18. Now coming to the offence with which the accused is charged. The accused is charged with two offences ie. U/s 33/38 Delhi Excise Act 2009. Section 33 reads as under: Penalty for unlawful import, export, transport, manufacture, FIR No. 85/11 STATE VS. Babloo -: 11 :- possession sale, etc. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any license, permit or pass, granted under this Act.
(a) manufacture, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purpose 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, collects, possesses or buys any intoxicant other than toddy or taari;
(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 be less than fifty thousand rupees which may extend to one lakh rupees.
FIR No. 85/11 STATE VS. Babloo -: 12 :-
19. In clause 'f' if person contravenes the provisions of this Act or any rule under this law, he will commit an offence U/s 33 of Delhi Excise Act. Delhi Excise Rules 2010 under Rule 20 prescribed the maximum limit of retail liquor an individual can possess. The maximum quantity of Indian liquor(whisky in the present case) for the purpose of Delhi Excise Act which can be possessed by individual can be 9 litres. It means that by possessing 48 quarter bottles of illicit liquor which will amount to possessing approximately 8.64 litres of liquor, the accused could not be said to have violated the provisions of this Act because the accused could have possessed upto 9 litres of the liquor, in view of the Delhi Excise Rules 2010. Therefore since this rule has not been violated it cannot be said that the accused has committed an offence U/s 33 (f) of Delhi Excise Act. Therefore as discussed above , the possession of illicit liquor by the accused beyond permissible limits is not proved and therefore commission of offence under section 33 Excise Act has been consequently not been consequently proved.
20. The other offence with which the accused is charged is section 38 Delhi Excise Act. Section 38 reads as under:
Whoever has in his possession any liquor FIR No. 85/11 STATE VS. Babloo -: 13 :- knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six months and fine which may extend to one lakh rupees.
21. Now it has clearly come on record the whiskey bottles which the accused was carrying were for sale in Haryana only which means that no prescribed duty was paid in respect of the case property Ex. P1 to Delhi. There is no suggestion by ld. defence counsel in the cross examination of these witnesses that these liquor bottles were not for sale in Haryana only. It has been categorically proved that carrying liquor bottles for sale in Haryana only the accused has committed an offence u/s 38 of Delhi Excise Act, 2009.
22. Now I come to the defence raised by the accused.
23. First defence taken by the counsel for accused is that the public witness were joined during the seizure of the case property. In the facts and circumstances of the present case, I do not think that it could be a decisive factor to acquit the accused. It has been a matter of common experience that the public persons are not interested to be made witnesses in criminal cases when they have no concern or interest in the outcome of the case. In the current days of deteriorating law and order situation currently prevalent in the society, strict FIR No. 85/11 STATE VS. Babloo -: 14 :- compliance of the rules regulating search and seizure demands a rational approach. Very few local witnesses have the courage to depose against their powerful neighbours or habitual miscreants obviously for fear of life and honour. In almost all cases local or public witnesses come to the court to say that they signed blank papers on the asking of the law enforcing agency and they did not see the recovery of incriminating articles. A rigid view on the rules of search and seizure should not be blown to far, else we may be strayed in wilderness. In the absence of any special reason evidence of investigation related officials may be safely acted upon. There is no warrant of law to hold that the evidence of members of law enforcement agencies must have corroboration from other sources. Hon'ble Supreme Court and Hon'ble High Court has in number of cases held that the police witnesses are competent witnesses and the a case of prosecution should not be thrown out only because the public witnesses are not joined in the investigation and examined during the trial.
24. Hon'ble Supreme Court of India in Appabhai v. State of Gujarat ( AIR 1988 SC 696) has been pleased to observe: "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the busstand. There must have been several FIR No. 85/11 STATE VS. Babloo -: 15 :- of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
25. The Hon'ble Supreme Court in Govinda Raju alias Govinda vs State 2012 7 SCC 722 observed "In the present case, the sole eyewitness is stated to be a police officer i.e. P.W.1. The entire case hinges upon the trustworthiness, reliability or otherwise of the testimony of this witness. The contention raised on behalf of the appellant is that the police officer, being FIR No. 85/11 STATE VS. Babloo -: 16 :- the sole eyewitness, would be an interested witness, and in that situation, the possibility of a police officer falsely implicating innocent persons cannot be ruled out.
15. Therefore, the first question that arises for consideration is whether a police officer can be a sole witness. If so, then with particular reference to the facts of the present case, where he alone had witnessed the occurrence as per the case of the prosecution. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.
16. This Court in the case of Girja Prasad (supra) while particularly referring to the evidence of a police officer, said that it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration.
17. Wherever, the evidence of the police officer, after careful scrutiny, inspires confidence and is found to FIR No. 85/11 STATE VS. Babloo -: 17 :- be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. The courts have also expressed the view that no infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. Rather than referring to various judgments of this Court on this issue, suffices it to note that even in the case of Girja Prasad (supra), this Court noticed the judgment of the Court in the case of Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217, a judgment pronounced more than half a century ago noticing the principle that the presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds therefor. This principle has been referred to in a plethora of other cases as well. Some of the cases dealing with the aforesaid principle are being referred hereunder.
18. In Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Court held as under: In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction FIR No. 85/11 STATE VS. Babloo -: 18 :- and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
26. In the case titled as Jawahar vs State Hon'ble Delhi High Court observed
27. "As far as non association of public witnesses at the time of recovery is concerned, I consider that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjournments are specifically taken FIR No. 85/11 STATE VS. Babloo -: 19 :- by counsels for accused persons, when witnesses are present, just to see that witnesses get harassed by calling them time and again. The excuses normally given in the courts are : the counsel having urgent personal work, left the court; death of some near relatives etc; the counsel being busy in arguing other matter in other court or cross examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witness cannot be rejected on the ground that they are official witnesses".
28. Therefore the aforesaid judgments clearly and categorically lays down a rule that the conviction can be based on the testimonies of police witnesses provided that they are reliable and trustworthy and in the present cases already discussed there is nothing on record to discredit the testimonies of police witnesses.
FIR No. 85/11 STATE VS. Babloo -: 20 :-
29. In a criminal trial the prosecution has to prove the guilt of the accused beyond reasonable doubts. However the Delhi Excise Act under which the accused is being prosecuted in the present case relaxes this law by providing in section 52 of the Act that 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 for the possession of which he is unable to account satisfactorily.
30. The possession of the accused has been proved in the present case as discussed above. The burden was shifted on the accused to account his possession which he failed to do in this case.
31. Therefore, on the basis of aforesaid discussion, I am of the view that one of the offence with which accused is charged is duly proved.
32. On the basis of aforesaid discussions, accused Babloo is convicted for the offence U/s 38 Delhi Excise Act and acquitted for the offence u/s 33 Delhi Excise Act.
Announced in the open court On this 25th October, 2013 (Samar Vishal) Metropolitan Magistrate08, WEST, Tis Hazari Delhi FIR No. 85/11 STATE VS. Babloo -: 21 :- IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE08,WEST DISTRICT, DELHI STATE VS. Babloo FIR NO: 85/11 P. S. Kirti Nagar U/s 38 Delhi Excise Act 25.10.2013 Present: Accused Babloo present in court with his counsel Sh. R.P.Siingh It is submitted by Ld. APP for State that the maximum punishment be awarded to the accused.
It is submitted by Ld. defence counsel that accused has recently suffered injuries and has spent his time in hospital. It is also submitted by him that a leniency may be shown to the accused in awarding sentence.
Considering the social condition of the accused, I award him sentence of imprisonment of 11 days which he has already undergone and fine of Rs. 24,000/ (Rs. 500/ fine for each quarter bottle). Fine paid.
File be consigned to record room.
Announced in the open court On this 25th October, 2013 (Samar Vishal) Metropolitan Magistrate08, WEST, Tis Hazari Delhi FIR No. 85/11 STATE VS. Babloo