Delhi District Court
State vs . Happy Grover on 14 January, 2020
CNR No. DL CT0202499818
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DL CT0202499818
CIS No. 10982/18
State Vs. Happy Grover
FIR No. 103/17
PS. Nabi Karim
U/s. 33/38 Delhi Excise Act
JUDGMENT
1) The date of commission of offence : 19.04.17
2) The name of the complainant : ASI Brij Lal
3) The name & parentage of accused : Happy Grover S/o. Shri Dev Dutt Grover, R/o. House No. 9328/7 Multani Dhanda, Pahar Ganj, Delhi.
4) Offence complained of : U/s. 33/38 Delhi Excise Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 14.01.2020 Date of Institution : 01.08.2018 Judgment reserved on : 14.01.2020 Judgment announced on : 14.01.2020 BRIEF REASONS FOR THE JUDGMENT:
CIS No. 10982/18, State Vs. Happy Grover, FIR No. 103/17, PS. Nabi Karim, U/s. 33/38 Delhi Excise Act 1 / 10 CNR No. DL CT0202499818
1. The case of the prosecution against the accused is that on 19.04.2017, at about 11.00 PM, in front of house no. 9350/7, Multani Dhanda, Pahar Ganj, Delhi, within the jurisdiction of PS Nabi Karim, he was found in possession of 14 quarter bottles of Whiskey having label of MC Dowells No.1 Original, for sale in Haryan only, in a bag, without having any permit or license and in contravention of provision of Delhi Excise Act.
2. After investigation, chargesheet was filed against the accused. The copy of chargesheet was supplied to the accused in compliance of Section 207 Cr. P.C. Thereafter, charge was framed against the accused under Section 33/38 Delhi Excise Act, to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined six witnesses. Accused admitted as per section 294 Cr.PC, the factum as to the registration of the present FIR, DD No. 51A dated 19.04.17 and the report of chemical examiner qua the exhibits which were sent in the present case.
4. After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. The testimonies of prosecution witnesses are being touched upon, in brief, as follows: 6.1) PW1 HC Ravikant and PW2 ASI Brij Lal deposed on the same lines that on 19.04.17, they were on patrolling duty in the area and at CIS No. 10982/18, State Vs. Happy Grover, FIR No. 103/17, PS. Nabi Karim, U/s. 33/38 Delhi Excise Act 2 / 10 CNR No. DL CT0202499818 about 11.00 PM, when they were coming after attending PCR call, they saw one person carrying a bag in his right hand at Gali no. 7, Multani Dhanda. On seeing them said person took sudden turn, who was stopped and his bag was checked. On checking the said bag was found containing 14 quarter bottles of illict liquor having label of MC Dowells No.1 Original, for sale in Haryan only. One quarter bottle was took out as sample and remaining quarter bottles were again put in the said bag. Sample was sealed with the seal of BL and bag containing remaining quarter bottles were also sealed with the seal of BL. The case property i.e. illicit liquor were seized vide seizure memo Ex. PW1/A. Form M29 Ex. PW2/B was filled, tehrir Ex. PW2/A was prepared and FIR got registered. Thereafter, further investigation was marked to HC Upender Singh, who prepared the site plan Ex. PW2/C at the instance of ASI Brij Lal. The case property Ex.P1 and accused were correctly identified by the witnesses.
6.2) PW3 Ct. Mohd. Aarif deposed regarding the depositing of sample of illicit liquor to Delhi Excise Department.
6.3) PW4 ASI Wahid Ahmed deposed that on 20.04.17, he was posted as MHC(M) and the case property was deposited by IO ASI Brij Lal in the Maalkhana. He proved the relevant entry of register no. 19 in this regard as Ex. PW4/A. He further deposed that on 23.05.17, he handed over the samples to Ct. Aarif for depositing the same to Excise Department, ITO vide RC No. 60/21/17 and proved the said RC number as Ex. PW4/B. CIS No. 10982/18, State Vs. Happy Grover, FIR No. 103/17, PS. Nabi Karim, U/s. 33/38 Delhi Excise Act 3 / 10 CNR No. DL CT0202499818 6.4) PW5 HC Gajender deposed that on 20.04.17, he joined the investigation with IO HC Upender and took the accused from lock up of PS Nabi Karim and got prepared dossier at Dossier Cell, Kamla Market. Thereafter, accused was produced before the court and was granted bail. 6.5) PW6 HC Upender Singh, deposed that on 19.04.17, further investigation of this case was marked to him, whereby DO handed him over the original rukka and copy and FIR and he alongwith HC Ravi Kant reached at the spot, where he met with ASI Brij Lal. The custody of the accused, relevant documents and the case property were handed over to him by ASI Baij Lal. Site plan Ex. PW2/C was prepared. Accused was arrested and personally searched. The accused was got medically examined. He correctly identified the case property i.e. illicit liquor Ex. P1 and accused. The samples were deposited in Excise Lab.
7. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. It is evident from the testimony of PW1 and PW2 that accused was apprehended along with the alleged illicit liquor from a place where there was availability of public witnesses. PW1 and PW2 admitted that CIS No. 10982/18, State Vs. Happy Grover, FIR No. 103/17, PS. Nabi Karim, U/s. 33/38 Delhi Excise Act 4 / 10 CNR No. DL CT0202499818 public persons were available at the spot. They deposed that they requested public persons to join the proceedings but none agreed.
Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws: In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), 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 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".
CIS No. 10982/18, State Vs. Happy Grover, FIR No. 103/17, PS. Nabi Karim, U/s. 33/38 Delhi Excise Act 5 / 10 CNR No. DL CT0202499818 In judgment titled as 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".
9) 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 are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
10) Merely mentioning that the public persons were asked to join the proceedings is not believable. The IO could have mentioned the names CIS No. 10982/18, State Vs. Happy Grover, FIR No. 103/17, PS. Nabi Karim, U/s. 33/38 Delhi Excise Act 6 / 10 CNR No. DL CT0202499818 of those persons who were asked to join the proceedings. Nothing in this regard was deposed by any of the witness and this creates a gaping hole in the case of the prosecution.
11) PW1 deposed that seal after use was handed over to him. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh vs. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
No seal handing over memo is on record. The case property is lying in the same police station where the police officials having the possession of seal were posted. There was ample opportunity for tampering with the case property. Hence, considering the legal position, the benefit of doubt CIS No. 10982/18, State Vs. Happy Grover, FIR No. 103/17, PS. Nabi Karim, U/s. 33/38 Delhi Excise Act 7 / 10 CNR No. DL CT0202499818 should be given to the accused.
12) Furthermore, the testimony of PW1 and PW2 reveals that the FSL form and seizure memo Ex. PW1/A were prepared prior to the dispatch of the rukka and registration of the FIR. However, perusal of the said documents clearly shows that the FIR number and other particulars of the present case are mentioned on the said document. No explanation has come from the prosecution to justify as to how the FIR number surfaced on form M29 Ex. PW2/A, which were prepared prior to the registration of the present case. Either this document was prepared after the registration of FIR and the police officials deposed falsely on this aspect or the FIR number inserted in this document later on. The entire case of prosecution came under the cloud of doubt and the defence of accused that the entire case is a planted one seems to have merits.
13) The case property was sent to the FSL on 23.05.17 while the case property was recovered on 19.04.17. There is no explanation as to why the case property kept in the maalkhana for around one month. The seal was with the raiding party members and the case property was lying in the maalkhana for the long time. There is no explanation as to this delay. The seizure memo and the FSL form was already prepared. The case property was required to be sent to FSL immediately for giving strength to the case of the prosecution. This creates a reasonable doubt in the case of prosecution.
14) Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was CIS No. 10982/18, State Vs. Happy Grover, FIR No. 103/17, PS. Nabi Karim, U/s. 33/38 Delhi Excise Act 8 / 10 CNR No. DL CT0202499818 in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
15) In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held: "...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the CIS No. 10982/18, State Vs. Happy Grover, FIR No. 103/17, PS. Nabi Karim, U/s. 33/38 Delhi Excise Act 9 / 10 CNR No. DL CT0202499818 ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution ..........................."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
16) In view of the aforesaid discussion, in my opinion accused has been able to raise a probable defence creating doubt about the existence or veracity of the prosecution version which renders the same untrustworthy. Accordingly, accused Happy Grover is acquitted of the charge leveled against him. Case property be confiscated to the State. Same be destroyed. File be consigned to Record Room after due compliance. Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2020.01.14 16:15:35 +0530 Announced in open court (Kapil Kumar) on 14.01.2020 MM5/Central District Tis Hazari Courts/Delhi, CIS No. 10982/18, State Vs. Happy Grover, FIR No. 103/17, PS. Nabi Karim, U/s. 33/38 Delhi Excise Act 10 / 10