Delhi District Court
State vs Amit Jha on 2 September, 2022
IN THE COURT OF SH. PUNEET PAHWA,
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No.DLST02-005222-2022
IN THE MATTER OF:
State Vs Amit Jha
FIR No.135/2021
PS Ambedkar Nagar
U/s 33/52 of the Delhi Excise Act, 2009
JUDGMENT
A) Sl. No. of the case : CR No. 1589/2022
B) The date of commission of : 15.03.2021
offence
C) The name of the complainant : Ct. Deepram, No.976/SD,
PS Ambedkar Nagar
D) The name and address of : Amit Jha, S/o Sh. Suresh Jha, R/o
accused House No.433, Block-B, Sangam
Vihar, Nwe Delhi.
E) Offence complained of : 33/52 of the Delhi Excise Act,
2009
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 02.09.2022
DATE OF INSTITUTION : 07.03.2022
DATE OF FINAL ARGUMENTS : 31.08.2022
DATE OF JUDGMENT : 02.09.2022
FIR No.135/2021 PS Ambedkar Nagar Page No.1 of 12
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The present case has originated from the charge-sheet filed by the State, against accused Amit Jha S/o Sh. Suresh Jha. As per charge-sheet, on 15.03.2021 at about 07:30 P.M. at H-1st Block, Madangir, near Gali No.19, New Delhi, within the jurisdiction of PS Ambedkar Nagar, accused were found in possession of 45 half bottles on which 'Masaledar Desi Sharab, for sale in Haryana only...' was written, without having any license or permit to possess the same and which accused were carrying in the dicky of his scooty bearing registration no.DL-3SED-5831.
2. On the basis of the charge-sheet, court took cognizance of the offence and the accused appeared on 07.03.2022, thereafter, he was supplied with copy of charge-sheet and documents in compliance of Section 207 Cr.P.C. Court framed charge against the accused for offence punishable under Section 33/52 Delhi Excise Act. Charge was read over and explained to him to which he pleaded not guilty and claimed trial.
3. During trial, accused admitted under Section 294 Cr.P.C. the registration of FIR No.135/2021, PS Ambedkar Nagar without admitting its content; Excise report dated 26.08.2021, report of transport department GNCT regarding particulars of vehicle no.DL3SED5831 and register no.19 which are exhibited as Ex.A1 to A4 respectively. Also, the State examined two witnesses viz. PW-1 CH Deep Ram and PW-2 HC Arun Kumar.
4. During examination in chief, PW-1 HC Deep Ram, deposed that FIR No.135/2021 PS Ambedkar Nagar Page No.2 of 12 on 15.03.2021, he was posted as Ct. at PS Ambedkar Nagar. On that day, he was on area patrolling duty. While patrolling at about 7:30 PM, he reached at gali no. 19, Madangir, New Delhi and he observed accused coming on a scooty. After seeing the witness, accused started to fled away. PW1 got suspicious and apprehended the accused. Thereafter, witness asked the accused to show the documents of scooty to which accused could not show. Witness got suspicious and checked the scooty. When he opened the dicky of the scooty it was found containing illicit liquor which were meant for sale in Haryana only. Upon inquiry, accused revealed his name as Amit Jha. Thereafter, PW1 informed the police station and after some time, IO/HC Arun Kumar came there. He handed over custody of accused alongwith aforesaid liquor and scooty to the IO and IO recorded the statement of PW1 which is Ex.PW1/A. IO requested 4-5 passersby to join the investigation proceedings but none agreed and left without their details. No written notice was served to those passersby due to paucity of time. Thereafter, IO checked the aforesaid scooty and it was found containing 45 half bottles of illicit liquor. IO took out one bottle as sample and sealed the same with the seal of AKS and separately sealed the remaining 44 bottles in plastic bag. IO seized the same vide seizure memo Ex. PW1/B. The seal after use was handed over to him vide memo Ex. PW1/C. IO seized the scooty vide seizure memo Ex. PW1/D. IO filled form M 29 which is Ex. PW1/E. IO prepared the site plan at the instance of witness which is Ex. PW1/F. IO prepared rukka and the same was handed over to the PW1 for registration of FIR. Thereafter, PW1 FIR No.135/2021 PS Ambedkar Nagar Page No.3 of 12 left for PS and returned and handed over copy of FIR alongwith original rukka to the IO. Thereafter, IO arrested the accused, conducted his personal search and reduced his disclosure statement into writing vide memos Ex.PW1/G, Ex.PW1/H and Ex.PW1/I respectively. IO recorded statement of PW1. Witness identified the accused before the Court. Witness also identified the aforesaid case property which is Ex. P1 and photograph is Ex. P2. The order of the office of Commissioner of Excise is Ex. PW1/J. PW-1 was duly cross-examined by Ld. Counsel for the Defence.
5. PW-2 HC Arun Kumar deposed that on 15.03.2021, he was posted at PS Ambedkar Nagar. On that day, the investigation of the present case was assigned to him. At about 8:00 PM, he left the PS Ambedkar Nagar and went to the spot i.e. near H-I, Gali no. 19, Madangir. There, he met Ct. Deep Ram and the accused. Ct. Deep Ram handed over the custody of accused to him and also produced the scooty which was carried illicit liquor and told him that the same has been recovered from the possession of accused. Accused revealed his name as Amit Jha. He checked the scooty and same found containing 45 half bottles of illicit liquor. He recorded the statement of Ct. Deep Ram which is Ex.PW1/A. He took out one bottle as sample and sealed the same as sample with a seal of AKS and separately sealed the remaining bottles with the seal of AKS. Seal after use was handed over to Ct. Deep Ram vide memo Ex. PW1/C. He filled form M-29 which is already Ex.PW1/E. He prepared the rukka Ex. PW2/A and handed over the same to Ct. Deep Ram for registration of FIR. Ct. Deep Ram went to the PS, FIR No.135/2021 PS Ambedkar Nagar Page No.4 of 12 got the FIR registered, came back at the spot and handed over the copy of FIR and original rukka to him. He prepared the site plan at the instance of Ct. Deep Ram which is Ex.PW1/F. The illicit liquor was seized vide seizure memo already Ex.PW1/B. The scooty was also seized vide seizure memo Ex. PW1/D. Accused was interrogated. Disclosure statement of accused is Ex. PW1/I. Arrest and personal search memo of accused are already Ex.PW1/G and Ex. PW1/H. Accused got medically examined. The case property was deposited with MHC(M). Accused was produced before the Ld. MM from where he was sent to JC. During investigation, witness sent the sample bottle to Excise lab. Witness recorded the statements of PWs u/s 161 CrPC. Witness correctly identified the accused before the Court. He deposed that he can identify the case properties, if shown to him. The identity of the case property is not disputed by the accused and the same is Ex. P1 and Ex.P2. PW-2 was duly cross-examined by Ld. Counsel for the Defence.
6. 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 him, to which he pleaded innocence and claimed to have been falsely implicated. Accused chose not to lead any defence evidence. Final arguments of both the parties were heard at length.
COURT OBSERVATION:
7. At the outset, it is pertinent to note that Section 33 of Delhi Excise Act read as:
FIR No.135/2021 PS Ambedkar Nagar Page No.5 of 12 "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 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. At the outset, it is pertinent to note that Section 52 of Delhi Excise Act read as:
"52. Declaration of dry days and conditions applicable thereto.
(1) No licensee shall sell liquor on the days, which are notified as dry days by the Excise Commissioner, with FIR No.135/2021 PS Ambedkar Nagar Page No.6 of 12 the previous approval of the Government from time-to-
time:
Provided that this restriction shall not apply to the service of liquor by the holder of a licence in Form L-15 to a resident in his room:
Provided further that this restriction shall not apply to the service / sale of liquor by the holders of licence in the Forms L-16, L-17, L-19, L-20, L-21, L- 22, L-28, L-29, P-10 and P-13 on all dry days except Republic Day, Independence Day and Mahatma Gandhi's Birthday:
Provided also that the Excise Commissioner, with the prior approval of the Government, may-
(i) delete any day from or add any day to the list of dry days notified under this rule;
(ii) permit consumption of liquor on any licensed premises on any dry day.
(2) No licensee shall be entitled to any compensation on account of any addition to the list of dry days in accordance with clause (a) of proviso three to sub-rule (1).
(3) The business premises of a licensee shall be kept closed on all dry days:
Provided that the Assistant Commissioner may, by order in writing permit a licensee to deposit liquor in his premises, or to open the premises for any work other than slae, on a dry day on prescribed fee.
9. It is the case of prosecution that on 15.03.2021 at about 07:30 P.M. at H-1st Block, Madangir, near Gali No.19, New Delhi, within the jurisdiction of PS Ambedkar Nagar, accused was found in possession of 45 half bottles on which 'Masaledar Desi Sharab, for sale in Haryana only...' was FIR No.135/2021 PS Ambedkar Nagar Page No.7 of 12 written, without having any license or permit to possess the same and which accused were carrying in the dicky of his scooty bearing registration no.DL- 3SED-5831, and thereby committed offence punishable under Section 33/52 of the Delhi Excise Act. Per contra, it is the Defence of accused that no public witness joined the proceedings. Also, there is discrepancy in time of deposition of case property.
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. FIR No.135/2021 PS Ambedkar Nagar Page No.8 of 12 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 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 FIR No.135/2021 PS Ambedkar Nagar Page No.9 of 12 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 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".
FIR No.135/2021 PS Ambedkar Nagar Page No.10 of 12
13. Prosecution has failed to prove when a number of people from the locality were available, why the testimony of said witnesses were not recorded. Moreover, there is contradiction in the testimonies of both the witnesses as to how the accused as well as the case property was taken to the police station. PW-1 had stated that the case property was taken to the police station in the scooty of the accused whereas PW-2 had stated that he took the case property on his motorcycle. These are material contradictions.
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 his favour. Accused Amit Jha S/o Sh. Suresh Jha Pal is accordingly acquitted for the offence under section 33/52 Delhi Excise Act. His 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.
FIR No.135/2021 PS Ambedkar Nagar Page No.11 of 12
16. Case property, if any, be confiscated to the State after the expiry of the period of the appeal. Accused is directed to furnish necessary personal bond under Section 437A CrPC.
17. 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 02nd September, 2022 FIR No.135/2021 PS Ambedkar Nagar Page No.12 of 12