Delhi District Court
State vs Babli on 26 November, 2022
IN THE COURT OF MS. PUNEET PAHWA,
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No. DLST02-018278-2021
IN THE MATTER OF:
State Vs Babli
FIR No. 289/2019
PS Ambedkar Nagar
U/s 33 of the Delhi Excise Act, 2009.
JUDGMENT
A) Sl. No. of the case : CR No.8655/2021
B) The date of commission of : 28.06.2019
offence
C) The name of the complainant : Ct. Akhilesh No.1509/SD
PIS No.28120388
PS Ambedkar Nagar
D) The name and address of : H-1/158, Madangir, New Delhi.
accused
E) Offence complained of : 33 of the Delhi Excise Act, 2009.
F) The plea of accused : Not Guilty
G) Final Order : Acquittal
H) The date of such Order : 26.11.2022
DATE OF INSTITUTION : 16.11.2021
DATE OF FINAL ARGUMENTS : 26.11.2022
DATE OF JUDGMENT : 26.11.2022
FIR No.289/2019 PS Ambedkar Nagar Page No.1 of 11
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The present case has originated from the charge-sheet filed by the State under Section 33 of the Delhi Excise Act, 2009, against accused Babli W/o Sh. Krishan. As per charge-sheet, on 28.06.2019 at about 09.40 PM at H-1st/158, Madangir, New Delhi, accused was found in possession of one white colour plastic sack containing 45 half bottles having Asli Santra Maseledar Sharab for sale in Haryana only ENA based contents 375 ml distilled blended bottled ADS spirits pvt. Ltd. Village Bhutiyan Tehsil Beri District Jhajjar, Haryana without having any license or permit to posses the same, and thereby committed offence punishable under Section 33 of the Delhi Excise Act.
2. On the basis of the charge-sheet, court took cognizance of the offence and summoned the accused on 16.11.2021. Upon service of summons, the accused had entered appearance in court and was supplied with copy of charge-sheet and documents in compliance of Section 207 Cr.P.C. Court framed charge against the accused of offence punishable under Section 33 of Delhi Excise Act, charge was read over and explained to her to which she pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined three witnesses.
4. PW 1 Ct. Akhilesh deposed that on 28.06.2019, he was posted at FIR No.289/2019 PS Ambedkar Nagar Page No.2 of 11 PS Ambedkar Nagar as Ct. and on that day he was on beat patrolling duty in the area of Madangir. At about 09:40 PM he reached in front of house no. H- 1/158 Madangir and found that accused became scared upon seeing him in police uniform and started pulling a plastic sack inside her house. Upon suspicion he came there and asked accused about the contents of sack. When accused could not give any satisfactory answer, the sack was opened and checked and he found illicit liquor in half bottles. Thereafter he informed duty officer and whereupon ASI Prakash alongwith W Ct. Chinki came at the spot to whom he handed over the recovered sack and custody of the accused. There are total 45 half bottles having label of Asli Santra Masaledar Desi Sharab for sale in Haryana only. One half bottle was separated for sample purpose and remaining were kept in same sack. Form M-29 was filled and seal of PC was put. Form M 29 is Ex.PW1/1. Seizure memo of case property was prepared vide Ex.PW1/2. Seal after use was handed over to him vide memo Ex.PW1/3. IO inquired him and recorded his statement vide Ex.PW1/4. Rukka was prepared vide Ex.PW1/5 and same was handed over to him for registration of FIR. He went to PS and got the FIR registered and after registration of FIR he came back to the spot and handed over original rukka and copy of FIR to IO. IO prepared site plan of the place of recovery vide Ex.PW1/6 at his instance. Accused was not arrested and a notice u/s 41A CrPC was served upon accused vide Ex.PW1/7. Accused was interrogated and statement of accused was recorded vide Ex.PW1/8. IO recorded his statement and relieved him. Case property was deposited into FIR No.289/2019 PS Ambedkar Nagar Page No.3 of 11 malkhana. Accused was correctly identified by the witness in Court. Case property was identified by the witness. The sample bottles are Ex.B1. Witness was cross-examined by Ld. Defence counsel.
5. PW 2 W/Ct. Chinki deposed that on 28.06.2019, she was posted at PS Ambedkar Nagar as Ct. and on that day she had joined the investigation of the present case alongwith IO ASI Prakash Chand. At about 10:00 PM she alongwith IO reached in front of house no. H-1/158 Madangir where Ct. Akhilesh was already present alongwith you. Ct Akhilesh handed over the recovered sack and custody of the accused. There were total 45 half bottles having label of Asli Santra Masaledar Desi Sharab for sale in Haryana only. One half bottle was separated for sample purpose and remaining were kept in same sack. Form M-29 was filled and seal of PC was put. Form M 29 is already Ex.PW1/1. Seizure memo of case property was prepared vide already Ex.PW1/2. Seal after use was handed over to Ct. Akhilesh vide memo already Ex.PW1/3. IO inquired Ct. Akhilesh and recorded his statement vide already Ex.PW1/4. Rukka was prepared vide already Ex.PW1/5 and same was handed over to Ct. Akhilesh for registration of FIR. He went to PS and got the FIR registered and after registration of FIR He came back to the spot and handed over original rukka and copy of FIR to IO. IO prepared site plan of the place of recovery vide already Ex.PW1/6 at the instance of Ct. Akhilesh. Accused was not arrested and a notice u/s 41A CrPC was served upon accused vide already Ex.PW1/7. Accused was interrogated and her statement was recorded vide already FIR No.289/2019 PS Ambedkar Nagar Page No.4 of 11 Ex.PW1/8. IO recorded her statement and relieved her. Case property was deposited into malkhana. Accused was correctly identified by the witness in Court. Case property was also identified by the witness. The sample bottles are Ex.B1. Witness was cross-examined by Ld. Defence counsel.
6. PW3 ASI Prakash Chand deposed that on 28.06.2019, he was posted at PS Ambedkar Nagar as ASI and on that day, he was present in PS and at about 10:00 PM, DD no. 53A was assigned to him which was in respect of apprehension of you with illicit liquor. Thereafter, he alongwith W/Ct. Chinki reached at the spot situated in front of house no. H-1/158, Madangir where Ct. Akhilesh was already present alongwith you. He handed over custody of accused and possession of a plastic sack. He checked the sack and found illicit liquor in half bottles. Thereafter, it was counted total 45 half bottles having label of Asli Santra Masaledar Desi Sharab for sale in Haryana only. One half bottle was separated for sample purpose and remaining were kept in same sack. Form M-29 was filled and seal of PC was put. Form M 29 is already Ex.PW1/1. Seizure memo of case property was prepared vide already Ex.PW1/2. Seal after use was handed over to Ct. Akhilesh vide memo already Ex.PW1/3. He inquired Ct. Akhilesh and recorded his statement vide already Ex.PW1/4. Rukka was prepared vide already Ex.PW1/5 and same was handed over to Ct. Akhilesh for registration of FIR. He went to PS and got the FIR registered and after registration of FIR, he came back to the spot and handed over original rukka and copy of FIR to him. He prepared site plan of the place of recovery vide already FIR No.289/2019 PS Ambedkar Nagar Page No.5 of 11 Ex.PW1/6 at the instance of Ct. Akhilesh. Accused was not arrested and a notice u/s 41A CrPC was served upon accused vide already Ex.PW1/7. Accused was interrogated and her statement was recorded vide already Ex.PW1/8. Case property was deposited into malkhana. During investigation, sample half bottle was sent to excise lab vide RC no. 372/21/19 already Ex. P/A/2 and result of analysis already Ex. P/A/3 was collected. During investigation, he recorded statements of witness u/s 161 Cr.P.C. and after completion of investigation, he prepared the charage sheet and submitted the same before the Hon'ble Court for judicial verdict. Witness was cross-examined by Ld. Defence counsel.
7. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to her. Accused pleaded innocence and claimed to have been falsely implicated. Despite opportunity, accused chose not to lead any evidence in her defence. Thereafter, final arguments were heard.
8. At the outset, it is pertinent to note that Section 33 Delhi Excise Act read as:
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) 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) manufactures, imports, exports, transports or FIR No.289/2019 PS Ambedkar Nagar Page No.6 of 11 removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari;
(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 but which may extend to one lath rupees.
9. It is the case of prosecution that on 28.06.2019 at about 09.40 PM at H-1st/158, Madangir, New Delhi, accused was found in possession of one white colour plastic sack containing 45 half bottles having Asli Santra Maseledar Sharab for sale in Haryana only ENA based contents 375 ml distilled blended bottled ADS spirits pvt. Ltd. Village Bhutiyan Tehsil Beri District Jhajjar, Haryana without having any license or permit to posses the same and thereby committed offence punishable under Section 33 of the Delhi Excise Act. Per contra, it is the defence of accused that no public FIR No.289/2019 PS Ambedkar Nagar Page No.7 of 11 witness joined the proceedings. Also, there is discrepancy in the depositions of prosecution witnesses.
10. In order to prove the alleged offence, the prosecution is first and foremost required to prove the recovery of illicit liquor from the possession of accused. In order to prove the said recovery, it is a mandate to comply provision of section 100 (4) of the Cr.PC. Accused is residing in a residential colony but no public person has been examined. Under these circumstances, there is absolute non compliance of Section 100 Cr.PC Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere effort was made to join respectable witnesses from the same locality.
11. In this regard reliance is being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been FIR No.289/2019 PS Ambedkar Nagar Page No.8 of 11 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".
12. In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the Investigating Agency 19.01.2013 should join FIR No.289/2019 PS Ambedkar Nagar Page No.9 of 11 independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
13. Prosecution has failed to prove when a number of people from the residential locality were available, why the testimony of said witnesses were not recorded. Not even any notice was given to any public person to join the investigation. The case property was shifted to PS in a TSR. In fact, FIR No.289/2019 PS Ambedkar Nagar Page No.10 of 11 driver of that TSR has also not been made a witness in this case.
14. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal) 662).
15. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused, the benefit of which accrues in her favour. Accused Babli W/o Sh. Krishan is accordingly acquitted for the offence under section 33 Delhi Excise Act. Her Bail Bond stands cancelled. Surety Bond stands discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on proper receipt and identification.
16. Personal bond in terms of section 437-A CrPC is furnished.
17. Case property, if any, be confiscated to the State after the expiry of the period of the appeal.
18. File be consigned to Record Room, after due compliances.
(PUNEET PAHWA) CHIEF METROPOLITAN MAGISTRATE DISTRICT SOUTH, SAKET COURTS COMPLEX Announced in the open Court On 26th of November, 2022 FIR No.289/2019 PS Ambedkar Nagar Page No.11 of 11