Delhi District Court
State vs . Jitender on 30 April, 2022
1
IN THE COURT OF MS. SURBHI METROPOLITAN MAGISTRATE-12,
SOUTH WEST, DWARKA COURTS, DELHI
FIR No. 167/17
PS Jaffarpur Kalan
State Vs. Jitender
U/s 33 Delhi Excise Act
CIS No. 5279/18
JUDGMENT
(a) CIS No. 5279/18
(b) Date of offence 14.09.2017
(c) Complainant Ct. Umeer
(d) Accused Jitender S/o Hari Ram Dagar
R/o VPO Dhansa, New Delhi
(e) Offence 33 Delhi Excise Act
(f) Plea of accused Plead not guilty
(g) Date of Institution 02.06.2018
(h) Final Order CONVICTION
(i) Date when judgment was 19.04.2022
reserved
(j) Date of judgment 30.04.2022
FIR No. 167/17 State Vs. Jitender Page no.1 of 19
SURBHI
Digitally signed by SURBHI
Date: 2022.04.30 16:43:04
+05'30'
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. By this judgment, I shall dispose of the case of the prosecution based on FIR no. 167/17 PS Jaffapur Kalan against the accused namely Jitender for the offence U/s 33 Delhi Excise Act.
FACTUAL MATRIX
2. The allegations against the accused as per the story of prosecution are that on 14.09.2017 at about 04:30pm, at Firni Road, Near Rest House, Village Dhans, JP Kalan within the jurisdiction of PS JP Kalan, he was found in possession of 72 half bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only, 375 ML which he wAS possessing without any permit or licence and in contravention of notification issued by Delhi Administration and thereby he committed offence punishable u/s 33 Delhi Excise Act and within the cognizance of this court.
INVESTIGATION AND APPEARANCE OF ACCUSED
3. After completion of the investigation, charge-sheet was filed. Cognizance was taken vide order dated 02.06.2018 and the accused was supplied with copies of challan alongwith annexures in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for the offence u/s 33 Delhi Excise Act was put to accused vide order dated 07.08.2018 to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, prosecution has examined 03 witnesses and the following documentary evidences.
Ex. PW1/A Original Tehrir
FIR No. 167/17 State Vs. Jitender Page no.2 of 19
SURBHI
Digitally signed by SURBHI
Date: 2022.04.30 16:43:24
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Ex. PW1/B Site Plan
Ex. PW1/C Seizure memo of Liquor
Ex. PW1/D Disclosure Statement of accused.
Ex. PW1/E Arrest memo
Ex.PW1/F Personal Search Memo of accused
Ex. P-1 Case property
Ex.PW2/A RC no.115/21/17
5. HC Hari Kishan, the IO concerned has been examined as PW1 who deposed that on 14.09.2017 he was posted at PS JP Kalan and on that day he received an information from Ct. Umeer vide DD no.18A with regard to recovery of illicit liquor near Rest House, Firni Road, Dhansa. He further deposed that the went to the spot where Ct.Umeer told him that accused Jitender was carrying illicit liquor in a white sack and he counted the liquor and found that they were 72 half bottles Asli Santra Masaledar Desi Sharab for sale in Haryana only. He further deposed that he took out 36 samples from the said bottles and prepared Form M-29 and sealed the liquor. He deposed that he recorded the statement of Ct. Umeer as Ex.PW1/A bearing his signature at point A. He further deposed that he prepared rukka and handed over the same to Ct. Umeer Singh for registration of FIR and Ct. Umeer went to the PS and got the FIR registered. He deposed that Ct. Umeer came back at the spot handed over the copy of registered FIR. He further deposed that Ct. Umeer came back at the spot and handed over the copy of FIR and original rukka to him. He deposed that he prepared the site plan as Ex.PW1/B bearing his signature at point A. He further deposed that the illicit liquor was seized with the seal of HK vide memo as Ex.PW1/C and disclosure statement of accused was recorded as Ex.PW1/D bearing his signature at point A. He further deposed that accused Jitender was arrested vide arrest memo Ex.PW1/E bearing his signature at point A. PW1 correctly identified the accused present in the court. He further deposed that the seal was handed over to Ct. Umeer. PW1 also correctly identified the case property as FIR No. 167/17 State Vs. Jitender Page no.3 of 19 Digitally signed by SURBHI SURBHI Date: 2022.04.30 16:43:39 +05'30' Ex.P-1. He deposed that the case property was deposited Malkhana and accused was brought to the PS. 5.1 PW1 cross examined by Ld. Defence counsel. In his cross examination, he stated that on the day of incident, his duty hours were from 08:00am to 08:00pm and he received a call after 4pm. He further stated that he had not told this fact during his examination in chief. He further stated that the place of incident was a crowded area and he requested some public persons but all of them refused to give their statement stating their personal difficulties. He further stated that he had not recorded the statement of any public persons and he stayed at the spot for total three hours. He stated that out of the total 72 half bottles, 36 were kept by him as samples and were sealed in different sack. He further stated that he called the sack from the malkhana of PS. He further stated that he did not remember the exact time when he informed the PS that he required a sack to seal the case property or that he did not remember who brought the said sack at the spot. PW1 denied the suggestion that no recovery took place from the accused persons and that is why he was not able to recall who brought the sack at the spot. He further denied the suggestion that all documents were prepared at the PS itself and not at the spot or that the illicit liquor was not seized/recovered from the accused in his presence. He also denied that he was deposing falsely. After cross examination, PW1 was discharged.
6. ASI Mahavir has been examined as PW2 who deposed that on 06.11.2017 he was posted at PS JP Kalan as ASI and at the instance of the IO and the permission of the SHO he took some sample of the case property 36 half bottles of Asli Santra Masaledar label onit with seal of 'HK' on the plastic katta white color from the PS Malkhana to excise office vide RC no. 115/21/17 as Ex. PW-2/A bearing his signature at point A. He further deposited that he deposited the same at Malkhana and the case property was safe while in his custody and no tampering was done with it. He deposed that the said RC was handed over to MHC(M) CP and he informed FIR No. 167/17 State Vs. Jitender Page no.4 of 19 SURBHI Digitally signed by SURBHI Date: 2022.04.30 16:43:50 +05'30' SHO over the phone. IO recorded his statement. PW2 was discharged after Nil Cross Examination.
7. HC Manoj Kumar has also been examined as PW2(inadvertently) who deposed that on 25.11.2017 he was posted as HC at PS Jafarpur Kalan and the present case was marked to him for investigation and during investigation he collected the Ex. P/A/5 . He further deposed that after formal compliance, he prepared the chargesheet against the accused and same was filed before concerned Court.
7.1 PW2 was cross examined by Ld. Defense counsel. In his cross examination, he stated that the sample/liquor was not seized in his presence.
8. Ct. Umeer has been examined as PW4. He deposed that on 14.09.2017 he was posted at PS JP Kalan and on that day, he was on his beat patrolling duty. He further deposed that he when he reached at Phirni Road near Dhansa Village, it was about 04:30pm he saw a person who was present in the court as an accused having a plastic katta on his head and on being suspicious, he checked the said katta in which he was found liquor 72 bottles of 375 ml for sale in Haryana Only. The liquor was containing the label of Santra Masaledar Desi Sharab. He further deposed that the said fact was informed to PS JP Kalan for necessary action. HC Hari Kishan came there from the PS. HC Hari kishan recorded my statement as already Ex.PW1/A bearing his signature at point B. He further deposed that rukka was prepared on his statement and handed over him for the registration of FIR and after registration of FIR he came back at the spot and handed over the copy of FIR and original complaint. He further deposed that site plan was prepared at his instance by IO. He further deposed that the said illicit liquor was seized vide seizure memo already Ex.PW1/C bearing his signature at point B and 36 bottles were taken for sample out of said 72 liquor bottles. He deposed that the tap of the sample bottle was sealed FIR No. 167/17 State Vs. Jitender Page no.5 of 19 SURBHI Digitally signed by SURBHI Date: 2022.04.30 16:44:03 +05'30' with the seal of HK and the remaining bottles were kept in said katta and it was sealed with the seal of HK. He further deposed that the accused was arrested vide arrest memo already Ex.PW1/E bearing his signature at point B, personal search of accused was got conducted vide memo Ex.PW1/F bearing his signature at point B. He further deposed that disclosure statement of accused was recorded vide memo already Ex.PW1/D bearing his signature at point B. Case property as already Ex.P- 8.1 PW4 was cross examined by Ld. Defence Counsel. In his cross examination, he stated that his duty timings were from 08:00am to 10:00pm but he did not remember the DD no. by which he was doing his duty. He further stated that his patrolling area was Village Dhansa and Qazipur and he was on patrolling in Dhansa Village at 08:00am to 10:00pm. He further stated that he had not done anywhere on that day beside the said place. He further stated that he was alone on his private bike. He stated that the spot was not crowded area at a distance of the 200 meters. He further stated that he could not tell the house where the accused was kept and also could not tell the name of the owner where the accused was kept. He further stated that he could tell how many houses near the spot and also the neighbor/villager when the accused was kept with illicit liquor. PW4 denied the suggestion that he could not tell how many houses and name of the villagers because he was not present at the spot. He stated that IO had not recorded statement of any public witness. He further stated that he made a call at PS at about 04:30pm. He stated that the documents were prepared at the spot itself while sitting on the bike on the road. He further stated that IO had tried to join the persons in the investigation while preparing the documents in presence of respected persons of village. He further stated that he did not remember house was mentioned in the site plan. PW 4 denied the suggestion that he was deposing falsely. After cross examination, he was discharged.
9. In a separate statement on 07.08.2018 u/s 294 Cr.P.C accused admitted the FIR No. 167/17 State Vs. Jitender Page no.6 of 19 Digitally signed by SURBHI SURBHI Date: 2022.04.30 16:44:15 +05'30' genuineness of the FIR No. 167/17, Certificate u/s 65 B of Indian Evidence Act, DD No. 18 A, DD no. 28A and report of Chemical Examiner without admitting the contents of the same, which were exhibited as Ex.P/A/1 to Ex.P/A/5 respectively. Thereafter, prosecution evidence was closed on 11.04.2022.
STATEMENT OF ACCUSED
10. Prosecution Evidence was thereon closed by the Court and statement of accused was recorded u/s 313 r/w 281 Cr.P.C vide order dated 11.04.2022 in which all the incriminating evidences on record including all the depositions of PWs along with admitted documents u/s 294 of CR.P.C were put before the accused. Wherein the accused denied all the incriminating evidence against him and stated that he has been falsely implicated in this case and that nothing incriminating has been recovered from his possession. The accused does not wish to lead DE.
ARGUMENTS
11. Final arguments were heard at length. I have gone through the documents on record, evidence and submissions forwarded by counsel for the accused and Ld. APP for the State. Sh. Ritender Kumar, learned Assistant Public Prosecutor for the State addressed pertinent arguments. He submitted that the accused as well as the case property have been correctly identified by the witnesses. He stated that link evidence is also available. He urged that the case has been proved beyond doubt against the accused and prayed for conviction of the accused.
12. On the other hand, learned counsel for the accused submitted that the accused has been falsely implicated by the police and nothing was recovered from his possession. He submitted that the absence of public witnesses to the alleged recovery is fatal to the case of the prosecution. He prayed for acquittal of the accused.
FIR No. 167/17 State Vs. Jitender Page no.7 of 19 SURBHI Digitally signed by SURBHI Date: 2022.04.30 16:44:45 +05'30'
13. The record has been thoroughly and carefully perused. The respective submissions of the learned Assistant Public Prosecutor for the State and learned counsel for the accused have been considered.
14. With respect to the charge under Section 33 of the Delhi Excise Act, the case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or licence. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
15. Now coming to the offence with which the accused is charged. The accused is charged with offences ie. U/s 33 Delhi Excise Act 2009. Section 33 reads as under:
"Penalty for unlawful import, export, transport, manufacture, possession sale, etc: 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) manufacture, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purpose 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, collects, possesses or buys any intoxicant other than toddy or taari;
(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;
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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 which may extend to one lakh rupees."
16. In clause 'f' if person contravenes the provisions of this Act or any rule under this law, he will commit an offence U/s 33 of Delhi Excise Act. Delhi Excise Rules 2010 under Rule 20 prescribed the maximum limit of retail liquor an individual can possess. The maximum quantity of Indian liquor for the purpose of Delhi Excise Act which can be possessed by individual can be 9 litres.
17. The allegations against the accused are that he was caught by Ct. Umeer carrying 72 half bottles of Asli Santra Masaledaar desi Sharrab (illicit liquor) for sale in Haryana only in a white sack. Ct Umeer vide DD entry No. 18 A informed the concerned PS qua the recovery of illicit liquor. Vide the same DD no. 18 A, the investigation was marked to HC Hari Krishan and he reached at the spot. He counted the recovered bottles which were found to be 72 in numbers and 36 samples were taken out of 72 bottles. M-29 form was prepared and recovered liquor was sealed with the seal of HK. Statement of Ct. Umeer was recorded by the concerned IO HC Hari Krishan which is Ex PW1/A and the rukka was prepared. Thereafter the Rukka was handed over to Ct. Umeer for registering the F.I.R and consequently, Ct. Umeer went to the concerned PS and registered the F.I.R. Ct. Umeer returned back to the spot with the copy of the F.I.R alongwith the original Rukka after which the IO HC Hari Krishan prepared the site plan Ex PW1/B and seizure memo was prepared Ex PW1/C. A disclosure statement was also recorded by the concerned IO which is Ex PW1/D and accused Jitender was arrested vide arrest memo Ex PW1/E. The sealed samples were deposited to the Malkhana. ASI Mahavir, at the instance of the IO and with the permission of the SHO concerned took the samples of the illicit liquor and deposited the same with Excise Office vide RC no. 115/21/17 Ex PW2/A and the said RC was handed over back to the MHC(M). The Excise Result Ex P/A/5 was collected by HC Manoj Kumar which FIR No. 167/17 State Vs. Jitender Page no.9 of 19 SURBHI Digitally signed by SURBHI Date: 2022.04.30 16:45:16 +05'30' was duly admitted by the accused in his 294 Cr.P.C statement dated 07.08.2018. The report of Excise Laboratory has also been duly proved as Ex.P/A/5 and the result clearly shows that the presence of Ethyl Alcohol is positive.
18. PW1 and PW4, the recovery witnesses were thoroughly cross examined by the Defence. The only defence taken by the accused in the cross examination of PW1 was that the public witnesses were not joined during the seizure of the case property. The PW1 in his cross examination admitted the fact that the place of recovery was a crowded place and that he also asked some public persons to join the investigation however all of them refused to join the same stating their personal difficulty and therefore, there is no independent witness of the alleged recovery of the illicit liquor. PW2 was not cross examined by The Defence while PW3 was formally cross examined and nothing contradictory can be elicited from their cross examination. PW4 in his cross examination stated that the place of recovery was not a crowded area for a distance of 200 meters. PW4 also firmly denied the suggestion of the Defence that he was in fact not present at the spot of recovery. He stated that the documents were prepared at the spot of the recovery itself sitting at the bike on the road. PW4 also corroborated the fact stated by the IO HC Hari Krishan that IO tried to join the public persons into the investigation, however despite request none joined.
19. The facts given in the examination of all the PWs also get corroborated by the documentary evidences led by the Prosecution. It was stated by PW4 that he has made a call to the concerned PS after 4:30 pm for which the DD Entry No. 18 A Ex P/A/3 is already on record recording the time of the call at 4:30 PM. This DD entry was duly proved as admitted by the accused vide his statement dated 07.08.2018. This DD entry duly proved the departure of the IO HC Hari Krishan from the PS. The second DD entry placed on record in DD no. 28 A which is also FIR No. 167/17 State Vs. Jitender Page no.10 of 19 Digitally signed by SURBHI SURBHI Date: 2022.04.30 16:45:29 +05'30' admitted by the accused in his statement u/s 294 Cr.P.C dated 07/08/2018 Ex P/A/4 which duly proved the arrival of the IO to the concerned PS after arresting the accused.
20. In the present case PW1 and PW4 have categorically deposed that the accused was in possession of illicit liquor. These witnesses have apprehended the accused red handed with the illicit liquor. They are the best witnesses to describe the possession and recovery. There is no reason that why they would frame an innocent person in such a serious offence which they have alleged completely knowing its implications without any previous enmity with the accused. There is no suggestion in the cross examination of these witnesses or in the examination of accused u/s 313Cr.PC regarding any motive of false implication on behalf of complainant or any enmity with the complainant. Since the witnesses themselves have apprehended the accused, it would require very convincing submissions to discard the evidence of these witnesses when the story propounded by them seems to be most probable. It is not the case of the accused that he was not present at the spot of incident nor he plead any kind of alibi in this case. The testimony of the witnesses does not appear to be embellished or embroidered in respect of the offence committed nor could be impeached in their cross examination. In the present case, therefore the occurrence of the offence is proved by the witnesses against the accused and there is no good reason to discard their testimony which is found to be consistent and reliable and also inspires confidence. The FIR was promptly registered and there was no opportunity to the complainant to embellish or falsely implicate the accused. Testimonies of all the witnesses are corroborated in material particulars with each other. The witnesses have been duly cross examined but still there is nothing in their testimony to impeach their credit. All of them have categorically deposed the place and the manner in which the liquor was FIR No. 167/17 State Vs. Jitender Page no.11 of 19 SURBHI Digitally signed by SURBHI Date: 2022.04.30 16:45:42 +05'30' recovered and therefore I am of the view that the testimonies, of these witnesses inspires confidence and the probative force in their testimony is so strong so as to convict the accused.
21. The only question is to be decided here is whether the non-joining of the independent witness in the present matter is that fatal to the case of the prosecution that the accused, despite proving all the ingredients of the offence u/s 33 D.E Act, has to be acquitted.
22. This Court is also mindful of this fact 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, as has been held in "Appabhai and another v. State of Gujarat ", AIR 1988 SC 696. It is settled law that evidence of official witnesses is not to be disbelieved or discarded merely for reason that they are official witnesses. Presumption is that every witness is impartial and independent unless proved contrary. There is no presumption for doubting credibility of official witnesses in principle. Statements of official witnesses can be basis for conviction of accused. However, before basing conviction on evidence of official witnesses, strict scrutiny with care and caution is required particularly when independent witnesses have turned hostile. In case evidence of official witnesses is found cogent, reliable and credible, conviction can be based on evidence of official witnesses only.
23. In Yakub Abdul Razak Memon Vs. State of Maharashtra 2013 (13) SCC 1, the Apex Court has held as under:-
"11...........the evidence of the official (police) witnesses cannot FIR No. 167/17 State Vs. Jitender Page no.12 of 19 Digitally signed by SURBHI SURBHI Date: 2022.04.30 16:46:05 +05'30' be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecuting agency. But prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible a corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation and requires greater care to appreciate their testimony".
24. Hon'ble Supreme Court, in "Kulwinder Singh and another Vs. State of Punjab, (2015) 6 SCC 674 has held as under:-
"23. ...........When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence".
25. It is quality of evidence not quantity which matters for proving a case. The Hon'ble Supreme Court in case Laxmibai and another Vs. Bhagwantbuva and others reported in (2013) 4 SCC 97 has held as under:-
"39. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise."
26. The Hon'ble Supreme Court in Govinda Raju alias Govinda vs State 2012 7 SCC 722 observed as follows:
" 14. In the present case, the sole eyewitness is stated to be a police officer i.e. P.W.1. The entire case hinges upon the trustworthiness, reliability or otherwise of the testimony of this witness. The contention raised on behalf of the appellant is that the police officer, being the sole eyewitness, would be an interested witness, and in that situation, the possibility of a police officer falsely implicating innocent persons cannot be ruled out.
15. Therefore, the first question that arises for consideration is whether a police officer can be a sole witness. If so, then with particular reference to the facts of the present case, where he alone had witnessed the occurrence as per the case of the prosecution. It cannot be stated as a rule that a police officer can FIR No. 167/17 State Vs. Jitender Page no.13 of 19 SURBHI Digitally signed by SURBHI Date: 2022.04.30 16:46:19 +05'30' or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness.
16. This Court in the case of Girja Prasad (supra) while particularly referring to the evidence of a police officer, said that it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration."
27. In Tahir v. State (Delhi) [(1996) 3 SCC 338, dealing with a similar question, the Hon'ble Supreme Court held as under:
"6....In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only FIR No. 167/17 State Vs. Jitender Page no.14 of 19 SURBHI Digitally signed by SURBHI Date: 2022.04.30 16:46:32 +05'30' requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
28. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record.
29. In the case titled as Jawahar vs State 2007 (4) RCR (CRIMINAL) 336, Hon'ble Delhi High Court observed as follows:
"As far as non-association of public witnesses at the time of recovery is concerned, I consider that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjournments are specifically taken by counsels for accused persons, when witnesses are present, just to see that witnesses get harassed by FIR No. 167/17 State Vs. Jitender Page no.15 of 19 SURBHI Digitally signed by SURBHI Date: 2022.04.30 16:46:47 +05'30' calling them time and again. The excuses normally given in the courts are: the counsel having urgent personal work, left the court; death of some near relatives etc; the counsel being busy in arguing other matter in other court or cross-examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witness cannot be rejected on the ground that they are official witnesses".
30. Therefore the aforesaid judgments clearly and categorically lay down a rule that the conviction can be based on the testimonies of police witnesses provided that they are reliable and trustworthy and in the present cases already discussed there is nothing on record to discredit the testimonies of police witnesses.
31. In view of the above discussion, this court is of the view that the prosecution in the present matter has proved all the necessary ingredients of the offence u/s 33 of the Delhi excise Act beyond reasonable doubt. It was clearly established by the seizure memo that the illicit liquor as mentioned in the same was recovered from the possession of the accused person. The arrest memo also proved the fact that the accused was arrested in the present matter. The excise-result duly admitted proved the fact that the liquor recovered contained Ethyl Alcohol. The accused was duly identified by PW1 as well as PW4 in the court. The DD entries placed on record duly proved the arrival and departure of the IO to and from the concerned PS regarding this case. The PW2 in his FIR No. 167/17 State Vs. Jitender Page no.16 of 19 SURBHI Digitally signed by SURBHI Date: 2022.04.30 16:47:02 +05'30' examination in chief clearly stated that there was no tempering done with the samples while the same were in his custody. It is also pertinent to mention here that despite giving opportunity to the Defence, the PW2 was not cross examined by the accused.
32. The Hon'ble Supreme Court of India, in Muddasani Venkata Narasaiah v Muddasani Sarojana, held as follows:
"16. Moreover, there was no effective cross-examination made on the plaintiff's witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not been cross examined as to factum of execution of sale deed. The cross-examination is a matter of substance not of procedure one is required to put one's own version in cross-examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed. The effect of not cross-examining the witnesses has been considered by this Court in Bhoju Mandal & Ors. v. Debnath Bhagat & Ors. AIR 1963 SC 1906. This Court repelled a submission on the ground that same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the court would presume that the witness account has been accepted as held in M/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. & Anr. AIR 1958 Punjab 440. In Maroti Bansi Teli v. Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of opposite party. The rule of putting one's version in cross-
FIR No. 167/17 State Vs. Jitender Page no.17 of 19
Digitally signed by
SURBHI SURBHI
Date: 2022.04.30
16:47:16 +05'30'
examination is one of essential justice and not merely technical one. A Division Bench of Nagpur High Court in Kuwarlal Amritlal v. Rekhlal Koduram & Ors. AIR 1950 Nagpur 83 has laid down that when attestation is not specifically challenged and witness is not cross-examined regarding details of attestation, it is sufficient for him to say that the document was attested. If the other side wants to challenge that statement, it is their duty, quite apart from raising it in the pleadings, to cross-examine the witness along those lines. A Division Bench of Patna High Court in Karnidan Sarda & Anr. v. Sailaja Kanta Mitra AIR 1940 Patna 683 has laid down that it cannot be too strongly emphasized that the system of administration of justice allows of cross- examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be ordinarily accepted."
33. If gone by the above cited ruling, the non-cross examination of PW2 will raise an assumption that his evidence is to be ordinarily accepted by the Defence and therefore it is duly proved that no tampering whatsoever has been done with the sealed samples of illicit liquor. As per the testimony of PW1 to PW4 all the proceedings in the present matter were conducted between the time 04:30pm to 08:30pm by the concerned IO. The documents placed on record by the prosecution i.e the MLC of the accused as well as the arrest memo Ex.PW1/E also corroborated this fact. In view of the above discussion, the prosecution has beyond reasonable doubt proved that the illicit liquor (27 litres) has been recovered from the possession of accused jitender.
34. As per Section 52(1) of the Delhi Excise Act in case it is proved that the accused has been found in possession of illicit liquor beyond permissible limit, it shall be presumed until the contrary is proved that the accused persons has committed the FIR No. 167/17 State Vs. Jitender Page no.18 of 19 Digitally signed by SURBHI SURBHI Date: 2022.04.30 16:47:30 +05'30' offence u/s 33 of Delhi Excise Act. No defence evidence whatsoever was placed on record to rebutt this presumption. The accused is unable to give account satisfactorily for the possession of the illicit liquor beyond permissible limit. No reasonable explanation has come forward also in the statement of accused recorded u/s 313 r/w 281 CrPC.
35. On the basis of the aforesaid discussion, this court is of the view that prosecution has duly proved its case against the accused for the commission of offence punishable under section 33 of Delhi Excise Act and he is held guilty and convicted thereunder.
Conclusion
36. The prosecution has proved the present case beyond Reasonable Doubt and therefore, the accused is convicted u/s 33 Delhi Excise Act.
37. Copy of the judgment be given to the convict free of cost. Let the convict be heard on the quantum of sentence.
Digitally signed by Announced in the open court on 30.04.2022 SURBHI SURBHI Date: 2022.04.30 16:48:01 +05'30' (SURBHI) M.M.-12/SWD/DWARKA COURTS DELHI FIR No. 167/17 State Vs. Jitender Page no.19 of 19