Delhi District Court
Fir No. 114/18 State vs . Soniya 1 Of 14 on 26 April, 2022
IN THE COURT OF SHRI RAKESH KUMAR-II,
METROPOLITAN MAGISTRATE : WEST-05
TIS HAZARI COURTS, DELHI
FIR No. : 114/2018
P.S. : Anand Parbat
Cr. Case No. 5298/2018
CNR No. DLWT02-010065-2018
State
v.
Soniya, W/o Sh. Manjeet Kumar,
R/o House No. RC-220, Rajasthan Colony,
West Patel Nagar, New Delhi.
Date of institution of case : 21.07.2018
Date of pronouncement of judgment : 26.04.2022
JUDGMENT
1. S. No. of the Case: 5298/18
2. Date of Commission of Offence: 07.04.2018
3. Date of institution of the case: 21.07.2018
4. Name of the Informant: HC Raj Kumar
5. Name of the accused : Soniya
6.Offence : 33 Delhi Excise Act
7. Plea of Accused: "Not Guilty"
8. Final Order: Acquitted
9. Date of Final Order: 26.04.2022
FIR No. 114/18 State Vs. Soniya 1 of 14
PS Anand Parbat
BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly, the facts of the case as per prosecution are that on 07.04.2018 police officials namely HC Raj Kumar and Const. Sunil were on patrolling. While on patrolling they met one secret informer who told them that one lady was selling liquor at Rajasthan Colony, Baba Faridpuri and she could be apprehended, if raided. Thereafter, both above police officials on patrolling reached in front of house No. 281, Rajasthan Colony, Baba Faridpuri. After reaching there they saw that one lady was selling illicit liquor by sitting on the chabutra outside the house. Thereafter, she was interrogated and name of above lady was revealed as Soniya. As per prosecution story, thereafter, illicit liquor was seized. As accused was found in possession of illicit liquor i.e. 47 quarter bottles, therefore, FIR was registered u/s 33 Delhi Excise Act. After completion of investigation chargesheet was filed in the Court. The cognizance of the offence was taken and summon was issued to the accused. The copy of the charge-sheet and the documents in compliance of Section 207 CrPC was supplied to the accused.
2. The charge was framed against the accused for offence punishable under Section 33 Delhi Excise Act on 29.11.2018 to which she pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the prosecution evidence.
3. In prosecution evidence, the prosecution has examined 05 witnesses. The report of Chemical Examiner vide Ex.AD-1 was admitted FIR No. 114/18 State Vs. Soniya 2 of 14 PS Anand Parbat under Section 294 CrPC.
PW3 HC Raj Kumar was recovery witness and first IO. PW5 HC Sunil Kumar was recovery witness. PW4 HC Pramod was 2 nd IO. PW1 was formal witness who had accompanied PW5 HC Sunil and PW4 HC Pramod on the spot. PW2 was the Duty Officer who registered FIR. The testimony of the witnesses in a nutshell are as below:
PW1 Const. Geeta was formal police witness who had accompanied PW5 HC Sunil and PW4 HC Pramod on the spot. She has deposed regarding formalities of investigation.
PW2 ASI Praveen Kumar was Duty Officer who registered the FIR on the basis of rukka sent by HC Raj Kumar through Const. Sunil.
PW3 HC Raj Kumar was first IO and recovery witness. He deposed that on 07.04.2018, he alongwith Const. Sunil left the PS for patrolling duty vide DD No. 39B Ex.PW3/A. He further deposed that they were on patrolling duty near Hanuman Mandir, Baba Fareed Puri. He further deposed that they met one secret informer who informed them that one lady is selling liquor at Rajasthan Colony, Baba Fareed Puri, could be apprehended, if raided. He further deposed FIR No. 114/18 State Vs. Soniya 3 of 14 PS Anand Parbat that thereafter, he alongwith Const. Sunil and secret informer proceed towards Rajasthan Colony. He further deposed that he asked some public persons to join the investigation but none agreed and went away. He further deposed that thereafter, they reached in front of House No. 281, Rajasthan Colony, Baba Fareed Puri, they saw that one lady was selling illicit liquor by sitting on the chabutra outside the house. He further deposed that they saw that she was selling the illicit liquor in one open carton. He further deposed that thereafter, they made inquiries and on interrogation, the said lady revealed her name as Soniya W/o Manjeet Singh. He further deposed that thereafter, they checked the carton and found containing 47 quarter bottles of Crazy Romeo Whiskey (for sale in Arunachal Pradesh only) of 180 ml. He further deposed that thereafter, he took out one sample bottle from the carton and tied the cap of the same with white cloth. He further deposed that thereafter the remaining quarter bottles were kept in the said carton. He further deposed that he sent Const. Sunil Kumar to bring the seal from PS Anand Parbat. He further deposed that Const. Sunil brought seal of "APRVT-I". He further deposed that thereafter, he sealed the sample bottle with seal of "APRVT-I". He further deposed that he asked Const. Sunil to bring FIR No. 114/18 State Vs. Soniya 4 of 14 PS Anand Parbat one sack. He further deposed that Const. Sunil brought one sack and thereafter the carton containing the illicit liquor were kept in said katta and sealed with seal of "APRVT-I". He further deposed that thereafter, the case property was seized vide seizure memo Ex.PW3/B. He further deposed that Form No. M-29 was filled which is Ex.PW3/C. He further deposed that thereafter, he prepared tehreer and handed over the same to Const. Sunil for registration of FIR. He further deposed that Const. Sunil left the spot and went to PS Anand Parbat for registration of FIR. He further deposed that after sometime, Const. Sunil alongwith HC Pramod and Lady Const. Geeta returned back to the spot. He further deposed that he handed over all the relevant documents alongwith case property and accused to HC Pramod. He further deposed that HC Pramod prepared site plan at his instance. He further deposed that thereafter, he left the spot and resumed his duty.
During cross examination, he denied the suggestion that the DD entry is manipulated by him in order to show that he was on patrolling duty. He further deposed that they left the police station for patrolling duty on their private motorcycle. He further deposed that the motorcycle was of Hero Honda. He further deposed that he did not remember the colour FIR No. 114/18 State Vs. Soniya 5 of 14 PS Anand Parbat and the registration number of said vehicle. He further deposed that no notice was given to any public person to join the investigation. He further deposed that the distance between the place where they received secret information and the place where accused was selling illicit liquor was around 250-300 meters. He further deposed that thereafter, he alongwith Const. Sunil and secret informer went to the spot by foot. He further deposed that they left their motorcycle near Hanuman Mandir. He further deposed that there are houses near the place where accused was found selling illicit liquor. He further deposed that he had asked the neighbours to join the investigation but they refused to join. He further deposed that he asked the names of those persons but they refused to tell their names. He further deposed that they had not entered the house of the accused. He further deposed that Const. Sunil left the spot for taking government seal at about 5:00 P.M. on his motorcycle which was parked near Hanuman Temple. Const. Sunil returned back to spot at around 5:15 P.M. He further deposed that the sack / katta was brought by Const. Sunil thereafter. He further deposed that he did not know from where Const. Sunil brought that katta. He further deposed that he had prepared the rukka while sitting on the stairs near chabutra. He further deposed that tThe 2nd IO, lady Const. Geeta FIR No. 114/18 State Vs. Soniya 6 of 14 PS Anand Parbat and Const. Sunil returned back to the spot at around 7:00 P.M. on motorcycle. He further deposed that Const. Geeta came at the spot alongwith HC Pramod on his motorcycle. He further deposed that site plan was prepared at around 6:15 P.M. Again said, he did not remember at what time it was prepared. He further deposed that his statement was recorded by the IO at the spot after 7:30 P.M. He further deposed that he left the spot after 7:30 P.M. He admitted that site plan was prepared by him which is Ex.PW3/E. He denied the suggestion that the case property was planted upon the accused. He denied the suggestion that all the documents were prepared while sitting at the police station. He denied the suggestion that accused was falsely implicated in the present case and nothing was recovered from the possession of accused.
PW4 HC Pramod was the 2nd IO. He deposed regarding formalities of investigation. PW4 deposed that on 07.04.2018 further investigation of present case was marked to him. Thereafter, he alongwith Const. Sunil and W/Const. Geeta reached at the spot where he met HC Raj Kumar who handed over him relevant documents alongwith case property and accused to him. He further deposed that the samples were sent to Excise Lab for examination and later on FIR No. 114/18 State Vs. Soniya 7 of 14 PS Anand Parbat he collected the report from Excise Lab. He further deposed that he concluded the investigation and submitted the chargesheet before the Court.
During cross examination, PW4 stated that he did not ask any person or neighbours of accused to join the investigation. PW4 further stated during cross examination that case property was taken to PS by Const. Sunil on his bike. However, he did not remember at what time the case property was deposited in malkhana. PW4 denied that case property was planted upon the accused.
PW5 HC Sunil Kumar was recovery witness. He deposed on the same lines as deposed by PW3 HC Raj Kumar.
During cross examination, PW5 stated that handing over memo of seal was not prepared. He further deposed during cross examination that case property was taken to PS in an e-rickshaw by him alone.
4. After the prosecution evidence was closed, the statement of accused under Section 281 read with Section 313 CrPC was recorded on 26.04.2022. The accused did not opt to lead the defence evidence.
FIR No. 114/18 State Vs. Soniya 8 of 14
PS Anand Parbat
Thereafter, the final arguments were heard. I have given thoughtful consideration to the submissions of the accused and the State. Ld. APP submitted that prosecution has been successful in proving guilt against accused beyond reasonable doubt. Per contra, Ld. Defence Counsel submitted that prosecution failed to prove guilt against accused beyond reasonable doubt as prosecution has not joined independent witnesses. He further submitted that seizure memo is also doubtful.
ANALYSIS AND FINDINGS Absence of independent witnesses
5. Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from a public place at around 4:30 P.M. Therefore, in all probability public persons must have been present around the place of recovery. Thus, at the place and time of the alleged recovery of illicit liquor and apprehension of the accused, public persons would in all likelihood have been present and available or have at least passed by the spot. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
6. PW3 and PW5 who were recovery witnesses stated that there were houses near the place where accused was found selling illicit liquor. PW3 further stated that he had asked the neighbours to join investigation but they refused to join. PW3 further stated that he had asked the name of FIR No. 114/18 State Vs. Soniya 9 of 14 PS Anand Parbat those persons but they refused to disclose their name. It is relevant to note that no notice was given to any person who refused to join the investigation. It is relevant here to note that above recovery witness had not mentioned the description of the persons who had allegedly refused to join the investigation. Further, there is nothing on record to show that recovery witnesses / police officials had served any notice under Section 160 CrPC upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by recovery witnesses who were police officials to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. Section 100 (4) of the CrPC 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. Joining of independent witnesses would have given credibility to the recovery proceeding. Therefore, non joining of independent witness casts a doubt on the fairness of the investigation.
7. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. 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.
FIR No. 114/18 State Vs. Soniya 10 of 14
PS Anand Parbat
Other infirmities in the prosecution case
8. PW3 and PW5 were recovery witnesses. PW3 deposed that case property was seized vide seizure memo Ex.PW3/B. Thereafter, he prepared a rukka and sent the rukka through Const. Sunil for registration of FIR. It is, therefore, clear that the seizure memo of the liquor was 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. Now perusal of seizure memo Ex.PW3/B shows that FIR number alongwith details of case as well as name of police station is written on the top of seizure memo. It is also relevant to note that seizure memo did not contain the DD entry number. If recovery was effected from the accused, then contemporaneous entry should have been made on the recovery memo showing all the recovered articles. Contemporaneous entry in recovery memo reflects the sanctity of documents as well as genuineness of the fact that whatever was recovered was entered contemporaneously into the recovery memo. The conduct of IO in not mentioning the DD number on the seizure memo creates some doubt regarding genuineness of recovery proceedings.
9. In the Judgment of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), 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 FIR No. 114/18 State Vs. Soniya 11 of 14 PS Anand Parbat report submitted under 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 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."
10. In the present case also, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo despite the fact that FIR was not registered at the time of recovery proceedings. Court is also unable to understand as to why DD number was not mentioned on seizure memo after effecting recovery from accused if FIR was not registered at the time of recovery. The same leads to only one inference that either the said document was prepared later or that the FIR had been registered earlier in point of time. In other words, mentioning of FIR number on seizure memo Ex.PW3/B was not contemporaneous with the preparation of seizure memo. In both the FIR No. 114/18 State Vs. Soniya 12 of 14 PS Anand Parbat aforesaid cases, a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
11. As per prosecution story, while police officials were on patrolling duty they met one secret informer who informed them that accused was selling liquor at Rajasthan Colony and she could be apprehended, if raided. Thereafter, police officials on patrolling reached in front of house of accused and saw that she was selling illicit liquor while sitting on chabutra outside the house. As per testimony of PW3 accused was selling illicit liquor in open carton.
In the view of Court, above story of prosecution appears to be fanciful, imaginary and improbable as Court is unable to understand as to why accused was selling liquor in an open carton outside her house. If she was doing illegal trade of illicit liquor, then she should have trading the liquor from inside her house instead of taking risk while selling it in open public view outside her house. Above course of conduct appears to be unnatural and, therefore, unbelievable.
12. There is one another contradiction in the case of prosecution. During cross examination, PW4 had stated that Const. Sunil / PW5 had taken the case property to PS on his own bike. However, on the other hand, PW5 / HC Sunil Kumar stated during cross examination that he had taken case property to PS in an e-rickshaw alone. Above inconsistency in the testimony of PW4 and PW5 also creates doubt regarding veracity of recovery of illicit liquor from accused.
FIR No. 114/18 State Vs. Soniya 13 of 14
PS Anand Parbat
CONCLUSION
13. The facts that no independent witness was cited or examined and the appearance of FIR number and case particulars on the seizure memo, absence of DD number on the seizure memo, has not been explained, all aforesaid inconsistencies when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
14. It is trite in criminal jurisprudence that 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 doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
15. In light of above discussion it can be safely said that prosecution has remain unsuccessful in proving guilt of accused beyond reasonable doubt. Therefore benefit of doubt is hereby given to accused and accused Soniya is hereby acquitted for charges of commission of offence under Section 33 Delhi Excise Act, 2009.
RAKESH Digitally signed by
RAKESH KUMAR
KUMAR Date: 2022.04.26
17:12:48 +0530
Announced in open Court (RAKESH KUMAR-II)
on 26th day of April 2022 Metropolitan Magistrate
West-05, Delhi
FIR No. 114/18 State Vs. Soniya 14 of 14
PS Anand Parbat