Delhi District Court
State vs Dhamo on 16 January, 2025
FIR No.214/2018 (State vs. Dhamo) PS Sagarpur
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-03,
PATIALA HOUSE COURT,
NEW DELHI
Presided over by- Ms. Isha Singh, DJS
Cr. Case No. -: 8864/2019
Unique Case ID No. -: DLND020248752019
FIR No. -: 214/2018
Police Station -: SAGARPUR
Section(s) -: 33 Delhi Excise Act
In the matter of -
STATE
VS.
DHAMO
W/o Sh. Mohan Lal
R/o RZ-327, Brahampuri, East Sagarpur,
New Delhi.
.... Accused
1. Name of Complainant : Ct. Puran Singh
2. Name of Accused : Dhamo
Offence complained of or
3. : 33 Delhi Excise Act
proved
4. Plea of Accused : Not guilty
5. Date of commission of offence : 03.07.2018
6. Date of Filing of chargesheet : 18.10.2019
7. Date of Reserving Order : 10.01.2025
8. Date of Pronouncement : 16.01.2025
9. Final Order : ACQUITTED
Page no. 1 / 13
FIR No.214/2018 (State vs. Dhamo) PS Sagarpur
Argued by -: Sh. Ankit Srivastava, Ld. APP for the State.
Sh. Pradeep Nagar, Ld. Counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution is that on 03.07.2018, at about 09:45 PM, in front of H.No. RZ-327, Bhrampuri Anand Hotel wali Gali, New Delhi, within the jurisdiction of PS Sagarpur, the accused Dhamo was found in possession of one white colour plastic bag, containing 83 quarter bottles of illicit liquor with each such bottle having the label of 'Crazy Romeo Whisky for sale in Arunachal Pradesh only, 180 ml' and that the accused was found in possession of such liquor without any licence or permit, thereby, committing an offence punishable u/s 33 of Delhi Excise Act, 2009.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was sum-
moned to face trial.
3. On her appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under section 33 of Delhi Excise Act, 2009 was served upon accused to which she pleaded not guilty and claimed trial.
Page no. 2 / 13 FIR No.214/2018 (State vs. Dhamo) PS Sagarpur
PROSECUTION EVIDENCE-
4. To prove its case beyond reasonable doubt against the accused, the pros- ecution led the following oral and documentary evidence.
ORAL EVIDENCE
PW 1 : HC Puran Singh (complainant)
HC Pankaj Kumar (witness to the in-
PW 2 :
vestigation)
PW 3 : SI Rajender (1st IO)
HC Ranbir Singh (witness to the in-
PW 4 :
vestigation)
PW 5 : ASI Ramesh Chand (2nd IO)
PW4 : HC Satish (sample deposited by him)
DOCUMENTARY EVIDENCE
Ex. PW1/A : Complaint of HC Puran Singh
Ex. PW1/B : Site plan
Ex. PW1/C : Seizure memo of case property
Statement u/s 161 Cr.P.C. of HC Pu-
Ex. PW1/D :
ran Singh
Photograph depicting seized plastic
Ex. PW2/A :
katta containing illicit liquor
Destruction order passed by Office of
Ex. PW2/B :
Commissioner, Excise
Mark PW2/C : Reply regarding destruction of liquor
Ex. PW2/D (OSR) : Sample quarter bottle of illicit liquor Ex. PW3/A : Form M-29 Ex. PW3/B : Rukka Ex. PW4/A : Arrest memo of accused DOCUMENTS ADMITTED UNDER SECTION 294 CrPC Ex. A1 : FIR No. 214/2018 Page no. 3 / 13 FIR No.214/2018 (State vs. Dhamo) PS Sagarpur Certificate u/s 65B Indian Evidence Ex. A2 :
Act Ex. A3 : DD No. 71B dated 03.07.2018 Ex. A4 : DD No. 39A dated 03.07.2018 Chemical examination report SZD Ex. A5 :
No. SZD011620 dated 30.04.2019 4.1 PW1/Complainant HC Puran Singh deposed on oath that while he was patrolling on 03.07.2018, at around 09:45 P.M., he reached near Anand hotel wali Gali in front of H. No. 327, Bramhpuri, where he noticed a lady sitting with a plastic katta. He stated that upon suspicion, when he approached the lady, she fled away leaving behind the plastic bag, which upon checking was found to contain illicit liquor. He stated that the said information was passed on to the Duty officer, PS Sagarpur, pursuant to which, IO/ASI Rajender alongwith W/Ct. Renu reached at the spot. He stated that the plastic bag containing illicit liquor was handed over to the IO.
He stated that IO/ASI Rajender recorded his complaint and asked four to five persons to join the proceedings however, none of them agreed citing their personal difficul- ties. The witness deposed about taking samples, seizure and sealing of case property by the IO/ASI Rajender. The witness deposed that the IO prepared a rukka on the ba- sis of his complaint and sent the same to the police station for the registration of the FIR. He deposed that after registration of FIR, site plan was prepared, however the accused could not be found. Thereafter, the case property was deposited in the Malkhana. He correctly identified the accused. The witness correctly identified the sample of the quarter bottle of illicit liquor, bearing the label of 'Crazy Romeo for sale in Arunachal Pradesh only, 180 ml ' During his cross-examination, PW1/Complainant HC Puran Singh admitted that the spot where illicit liquor was recovered from possession of the ac- cused was a residential area. He also admitted that no notice was served upon the Page no. 4 / 13 FIR No.214/2018 (State vs. Dhamo) PS Sagarpur public persons who refused to join the investigation. He denied the suggestion that he was deposing falsely.
4.2 PW3/ 1st IO SI Rajender deposed that on 03.07.2018, upon receiving in- formation vide DD No. 29A regarding recovery of illicit liquor, he alongwith W/Ct. Renu reached at the site of occurrence, i.e., in front of H.No. RZ-327, Bhrampuri Anand Hotel wali Gali, New Delhi, where Ct. Puran Singh was found present, who produced the plastic bag left behind by the accused and informed that the accused has fled away. He stated that he recorded the complaint of Ct. Puran Singh and asked four to five persons to join the proceedings however, none of them agreed citing their per- sonal difficulties. Thereafter, he opened and checked the plastic bag, which was found to contain 83 quarter bottles of illicit liquor. The witness deposed that all the bottles were having the label of 'Crazy Romeo Whisky for sale in Arunachal Pradesh only, 180 ml' He stated that he drew out one quarter bottle as a sample, labelled it as Serial no.1 and sealed such sample with the seal of 'RK'. He stated that the remaining bot - tles were left inside the plastic bag, which was labelled as Serial no.2 and was duly seized. Thereafter, the case property i.e. the sample alongwith the plastic bag were seized. He stated that he handed over the seal of 'RK' to Ct. Puran Singh after use. He stated that after seizure, he filled in Form M-29, prepared the rukka on the basis of complaint of Ct. Puran Singh and sent the same via him, to the PS for the registration of FIR. He stated that pursuant to the registration of the FIR, he prepared the site plan. Thereafter, the case property was deposited in malkhana, PS Sagarpur. He stated that he was transferred from PS Sagarpur, and thereafter, the file was transferred to some one else. He correctly identified the sample of the quarter bottle of illicit liquor.
During his cross-examination, PW3/ 1st IO SI Rajender admitted that the spot where illicit liquor was recovered from possession of the accused was a residential area, where public persons were available. He admitted that no notice was given to any of the public persons to join the recovery proceedings. He admitted that he failed Page no. 5 / 13 FIR No.214/2018 (State vs. Dhamo) PS Sagarpur to prepare seal handing over memo. He denied the suggestion that all the documents pertaining to the present case were prepared by him sitting at PS Sagarpur. He denied the suggestion that the case property has been planted upon the accused.
4.3. PW5/ 2nd IO ASI Ramesh Chand deposed that on 12.10.2018, further investigation was assigned to him. He stated that he got deposited sample quarter bot- tle in Excise Laboratory, pursuant to which, he prepared the chargesheet and submit- ted the same before the Court.
No cross-examination of PW5/ 2nd IO ASI Ramesh Chand was con- ducted, despite opportunity given to the accused.
Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the table above.
Vide order dated 10.01.2025, PE was closed at the request of Ld. APP for State.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
5. On 10.01.2025, statement of accused Dhamo u/s 313 Cr.PC was recorded, wherein she denied the case of the prosecution and stated that she has been falsely implicated in the present case. She chose not to lead defence evidence and hence, DE was closed and matter was fixed for final arguments.
ARGUMENTS-
6. During final arguments, it was argued by Ld. APP for the State that the case against the accused stood proved in view of the evidence led by the prosecution. Accordingly, he argued that accused deserved to be convicted for the offences u/s 33 Delhi Excise Act and the relevant provision of Delhi Excise Act.
On the other hand, the Ld. defence counsel argued that the prosecution has failed to bring out a case against the accused, especially in view of the fact that no Page no. 6 / 13 FIR No.214/2018 (State vs. Dhamo) PS Sagarpur independent public witnesses were made a part of the search and seizure of the case property, despite the fact that the alleged illicit liquor was recovered from a public place. It has been argued that the case property was falsely planted upon the accused and as such, she is liable to be acquitted INGREDIENTS OF THE OFFENCE-
7. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to establish the offence under Section 33 of the Excise Act, the prosecution must fulfil all the essential ingredients of the offence. Section 33 of the Excise Act, 2009 is reproduced for ready reference-
"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 licence, permit or pass, granted under this Act-- (a) manufactures, imports, exports, transports or 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"
8. Needless to mention, in criminal law, the burden of proof on the prose - cution is that of beyond reasonable doubt. The presumption of innocence of the ac- cused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused.
9. In the case such as the present one, the fact of recovery, seizure, sampling and the chain of custody is of utmost importance to bring home the guilt of Page no. 7 / 13 FIR No.214/2018 (State vs. Dhamo) PS Sagarpur an accused. The case of the prosecution is that one white colour plastic katta containing 83 quarter bottles of illicit liquor with each such bottle having the label of 'Crazy Romeo Whisky for sale in Arunachal Pradesh only, 180 ml' were seized from the accused. Recovery of the alleged illicit liquor which the accused was supposedly in possession of, without a valid license, was effected, in a residential area and and the time of recovery was 09:45 PM, however no public person was made a witness to the said recovery. It is not disputed by the prosecution witnesses on whose testimony the prosecution seeks to rely, that at the time of recovery of the illicit liquor, there were members of general public available at the spot from where recovery was made, however it is both apparent and surprising that no independent witness was made to join the proceedings by the police.
10. The importance of joining public persons in the recovery proceedings has time and again been emphasised by the judicial pronouncements. At this juncture, reference is made to the judgement of Roop Chand v. State of Haryana 1989 SCC OnLine P&H 539 : (1989) 2 RCR (Cri) 504, wherein it has been observed:
"4. It is well settled principle of law that the Investigating Agency should join 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.
5. 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 noted down their names and addresses etc. and would 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 pubic is an after thought and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful."Page no. 8 / 13
FIR No.214/2018 (State vs. Dhamo) PS Sagarpur
11. Reliance is placed upon the judgement of State of Punjab v. Balbir Singh, AIR 1994 SC 1872, wherein the Hon'ble Supreme Court has observed that:
"It therefore emerges that non-compliance of these provisions 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."
12. Burden therefore, lies on the prosecution to establish that the association of public witnesses was not possible in the facts and circumstances of the case. However, in the present case, nothing in the testimony of prosecution witnesses suggests that sincere efforts were made by them to involve independent witnesses in the process of recovery. In the present case, 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. As per documentary evidence, the plastic katta filled with illicit liquor were recovered at 09:45 PM. The rukka Ex. PW3/B was prepared and sent to the Police Station at 11:40 PM. The FIR (Ex.A1) was registered at 11:52 PM. Therefore, it is clear that the police officials were not hard pressed for time as they remained at the spot from atleast 09:45 PM till atleast 11:52 PM. However, despite being at the spot for about two hours, they did not join any public person in the investigation. IO has even admitted the presence of public witnesses at the spot and yet no independent public witnesses, in stark violation of Section 100(4) CrPC, were joined in the investigation at the time of alleged recovery. IO did not even mention the names or addresses of those persons who refused to join the recovery proceedings. No explanation has come on record to show whether any Page no. 9 / 13 FIR No.214/2018 (State vs. Dhamo) PS Sagarpur notice was served upon the public witnesses requiring them to join the proceedings or to face action under Section 187, Indian Penal Code.
13. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the police in the present case cannot be ruled out. Reliance is placed upon the Judgement of the Hon'ble Supreme Court in case of Hemraj vs State of Haryana (AIR 2005 SC 2110) wherein it was observed that, "the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case."
14. Further, as per the case of the prosecution, PW3/ 1st IO SI Rajender opened the plastic katta containing illicit liquor, and drew out one quarter bottle from the plastic katta, as a sample. Thereafter, the sample as well as the remaining bottles were tied separately with a white coloured cloth and sealed with the seal of 'RK'. PW3/ 1st IO SI Rajender stated that after use, seal was handed over to Ct. Puran Singh. In this regard, there is no separate seal handing over or seal taking memo on record. Thus, the case property has been transferred from one official to another, however, no DD entry has been made with regard to the same. Further, the seal remained with the junior police official as, it is not the case of the prosecution that the seal was handed over to any independent person after use. Pertinently, there is no documentary evidence to show if the seal was deposited in the malkhana, so that the same was outside the reach of the IO/other police officials. As per the testimony of prosecution witnesses, only the case property was deposited in the malkhana and there is no entry of deposit of the seal. What was the fate of the seal remains unexplained. In such circumstances, the possibility of interference or tampering of the seal and the contents of the seized case property cannot be ruled out. Reliance is placed upon the judgement of the Hon'ble High Court of Delhi in the case of Safiullah v. State (Delhi Admn.) 1992 SCC OnLine Del 516 :(1993) 49 DLT 193.
Page no. 10 / 13FIR No.214/2018 (State vs. Dhamo) PS Sagarpur Therefore, it is safe to conclude that the prosecution has NOT been able to prove safe and tamper-proof custody of the case property in the present case.
15. It is also to be noted that PW1/HC Puran Singh has deposed that after intimation of recovery of illicit liquor was sent to the police station, the IO came to the spot, took out the illicit liquor and prepared the seizure memo. He also sealed the remaining property. Thereafter, the rukka was handed over to PW1/HC Puran Singh for registration of FIR. Similar is the deposition of PW3/ 1st IO SI Rajender. In the consistent version of the prosecution witnesses regarding the chronology of events, the seizure memo Ex. PW1/C was prepared before the registration of the FIR. However, it is observed that the seizure memo contains the description and number of the FIR. If the FIR was not in existence at the time of preparation of seizure memo than it is a open glaring question as to how the FIR number surfaced on Ex. Ex. PW1/C. This puts the genuineness of the seizure memo Ex. Ex. PW1/C under a cloud of suspicion and gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the illicit liquor or number of the said FIR was inserted in the seizure memo 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 case property in the manner alleged by the prosecution. Reliance is being placed upon the judgment of Hon'ble High Court of Delhi in the case of Giri Raj v. State, 1999 SCC OnLine Del 1030. That being said, the benefit arising out of a doubtful recovery of case property must necessarily go to the accused.
16. Moreover, in the considered opinion of this court, even the identification of the case property is not established. It is stated by the prosecution that the case property has been destroyed on 24.01.2021, as per the directions of the Assistant Commissioner (Excise) contained in order bearing no. Con/Mise/2020/6412-13 dated 02.12.2020. In this regard, even though Section 60 of the Delhi Excise Act provides that non-production of case property does not affect the conviction, however, at the Page no. 11 / 13 FIR No.214/2018 (State vs. Dhamo) PS Sagarpur same time, the provision also lays down that samples and photographs of the confis- cated property are to be preserved to meet evidentiary requirements. During the ex- amination of prosecution witnesses, one quarter bottle was produced as sample of the case property, for the purposes of identification. Further, only one photograph captur- ing the plastic katta, in unsealed condition, supposedly containing the case property/ gatta petties comprising illicit liquor were shown to the witnesses for the purposes of identification of case property. It is pertinent to mention that no photograph of the en- tire lot of case property or any video recording as to the destruction of the case prop- erty was produced by the prosecution. Further, it stands admitted by prosecution wit- nesses in their cross-examination that the plastic katta in photograph Ex. PW2/A, re- portedly containing case property does not bear any seal. In such circumstances, the standard of proof beyond reasonable doubt, cannot be said to be met. Accordingly, the identification of the case property is not established and this fact becomes fatal to the case of prosecution, going to its roots.
17. In my opinion, the circumstances mentioned above are sufficient to punch holes in the version of the prosecution. The case of the prosecution cannot be said to be proved on the requisite threshold. Therefore, considering the above discus- sion, the inevitable conclusion is that the prosecution has failed to prove beyond rea - sonable doubt that illicit liquor was recovered from the possession of the accused. While coming to this conclusion, this Court is also conscious of the presumption en- shrined under Section 52 of the Delhi Excise Act. However, the same is not applica- ble in the present case as the recovery from possession of the accused, which is the condition precedent for invoking the presumption, is not proved in the present case.
CONCLUSION
18. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 33 of the Excise Act beyond reasonable doubt. The accused has been successful in pointing out the Page no. 12 / 13 FIR No.214/2018 (State vs. Dhamo) PS Sagarpur deficiencies in the case of the prosecution. The recovery of the illicit liquor from the possession of the accused, which was the essential ingredient of the offence, is also highly doubtful. Other inconsistencies in the version of the prosecution have crumbled the whole case of the prosecution.
19. Resultantly, the accused Dhamo W/O Sh. Mohan Lal is entitled for ben- efit of reasonable doubt and is hereby found not guilty. She is ACQUITTED of the offence under Section 33 of the Delhi Excise Act, 2009.
Digitally signed
ISHA by ISHA SINGH
Announced in the presence of Date:
SINGH 2025.01.16
18:02:30 +0530
the accused in open court (Isha Singh)
JMFC-03/PHC/NDD/16.01.2025
Certified that this judgment contains 14 pages and each page bears my signature. Digitally signed ISHA by ISHA SINGH Date:
SINGH 18:02:35 2025.01.16 +0530 (Isha Singh) JMFC-03/PHC/NDD/16.01.2025 Page no. 13 / 13