Delhi District Court
State vs Chinnu on 20 November, 2024
IN THE COURT OF SH. ARIDAMAN SINGH CHEEMA,
JMFC-05, SED, SAKET COURTS, DELHI
DLSE020334082022
Cr. Case No. -: 139/2023
FIR No. -: 337/2019
Police Station -: Sarita Vihar
Section(s) -: 33 Delhi Excise Act
STATE
VS.
CHINNU
1. Name of Complainant :- ASI Ashok Kumar
No. 1232/PCR
2. Name of Accused Person :- Chinnu
S/o Lt. Sh. Het Ram
3. Offence complained of or proved :- 33/52(2) Delhi Excise
Act
4. Plea of Accused Persons :- Not guilty
5. Date of Commission of offence :- 04.09.2019
6. Date of Filing of case :- 07.09.2022
7. Date of Reserving Order :- 21.10.2024
8. Date of Pronouncement :- 20.11.2024
9. Final Order :- Acquitted Digitally
signed by
Aridaman
Aridaman singh
singh cheema
cheema Date:
2024.11.20
16:37:13
+0530
FIR No. 337/2019 State v. Chinnu Page 1 of 20
JUDGMENT
1. The case of prosecution in brief is that on 04.09.2019 at about 06:15PM, at Okhla Tank Jungal Kacha Rasta, towards Haji Colony, Sarita Vihar, New Delhi, accused being owner of vehicle bearing No.DL3CDJ 0668 (M/cycle) were in possession of the said vehicle and from the said vehicle, found illicit liquor as per seizor memo which is Mark X in violation of Rule 20 of Delhi Excise Rules 2010.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (hereinafter, "Cr.PC"). Relevant record was collected. Final report under section 173 CrPC, was prepared against the abovenamed Accused and challan was presented in the court u/s 33 Delhi Excise Act on 07.09.2022.
3. On the appearance of accused, a copy of chargesheet was supplied to accused in terms of section 207 of CrPC. On finding a prima facie case against the Accused, charge under Section 33 Delhi Excise Act was framed against the Accused on 10.01.2023 for which the Accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial for the offence u/s 33 Delhi Excise Act, Aridaman prosecution led the following documentary and oral evidence: singh cheema Digitally signed by Aridaman singh cheema Date: 2024.11.20 16:43:55 +0530 FIR No. 337/2019 State v. Chinnu Page 2 of 20
5. PW-1/ ASI Ashok Jadhav, deposed that on 04.09.2019, he was posted as ASI at PCR Zone South-East and was the incharge of PCR Van Kite-20. On that day, he was on duty and it was around 6:15 p.m., when he along with his driver/HC Ombir, was returning from Jasola Village, after attending a call and while returning when reached near the church of Jasola Village, he observed two boys wearing helmet on a motorcycle and they were carrying cartons. The said boys were going towards Okhla Tank Jungle. Upon suspicion, they chased the said boys and they escaped on the way to Haji Colony leaving aforesaid motorcycle and the cartons on kaccha rasta to Haji Colony. There were total five cartons and upon checking the same were found filled with the quarter bottles of illicit liqour. The registration number of the aforesaid motorcycle was DL3SDJ0668 and it was a black colour Hero Splendor motorcycle. He made 100 number call and informed the police. After sometime, IO/ASI Somdutt along with Const. Lokesh reached the spot. He handed over aforesaid motorcycle and five cartons of illicit liquor to the IO. He presented his written complaint to the IO which is Ex. PWI/A. IO made efforts to join independent witnesses but none came forward and left the spot. Upon checking each carton was found containing 50 quarter bottles of asli santra masaledar desi sharab for sale in Haryana only. IO randomly separated one quarter bottle from each carton as sample and thereafter, seized the samples and the case property in the manner mentioned in the seizure memo which is Ex. PW1/B. IO used his seal of SD during seizure proceeding as Digitally signed by Aridaman mentioned in the seizure Themo. IO filling form M-29 and seal after Aridaman singh singh cheema cheema Date:
2024.11.20 16:44:03 use was handed over to constable Lokesh. IO seized aforesaid +0530 FIR No. 337/2019 State v. Chinnu Page 3 of 20 motorcycle vide seizure memo which is Ex. PWI/C and prepared rukka. IO got the FIR registered through Const. Lokesh and he was discharged. He had not seen the faces of accused boys as they were wearing helmet.
MHC (M) reported that the case property i.e. the seized liqour has been destroyed vide orders of Excise Commissioner dated 08.11.2021, copy of which is tendered by the MHC (M) and is Ex.
P1. MHC (M) also produced one quarter bottle of aforesaid brand and stated that the same was preserved at the time of destruction of the case property. The aforesaid quarter bottle of brand name asli santra masaledar desi sharab is shown to the witness to which the witness correctly identified. The sample is Ex. P2.
Identity of the aforesaid motorcycle was not disputed. In his cross-examination he stated that he does not remember that the details of the call which was attended by him on the date of incident. The aforesaid boys were wearing pants and shirts. He finally left the spot around 7:30-8:00 p.m. Constable Lokesh had not returned in his presence after registration of the FIR. He denied the suggestion that he was not on duty on the date of incident or he had not chased any motorcycle. He denied the suggestion that aforesaid motorcycle is not involved in the incident or the same has been falsely implicated. He denied the suggestion that he wrote aforesaid complaint as guided by the IO. He denied the suggestion that he signed aforesaid seizure memos at the stance of the IO later on and not on the date as mentioned in the seizure memo. He denied the suggestion that he signed aforesaid documents without knowing the Aridaman singh cheema Digitally signed by Aridaman singh cheema Date: 2024.11.20 FIR No. 337/2019 State v. Chinnu Page 4 of 20 16:44:08 +0530 nature and contents. He denied the suggestion that he was deposing falsely.
6. PW-2/ ASI Omvir Singh, deposed that on 04.09.2019, he was posted as Head Constable at PCR Zone South-East and was the Driver of PCR Van Kite-20. On that day, he was on duty alongwith Incharge ASI Ashok and it was around 6:15 p.m., when they were returning from Jasola Village, after attending a call and while returning when reached near the church of Jasola Village, they observed two boys wearing helmet on a motorcycle and they were carrying cartons. The said boys were going towards Okhla Tank Jungle. Upon suspicion, they chased the said boys and they escaped on the way to Haji Colony leaving aforesaid motorcycle and the cartons on kaccha rasta to Haji Colony. There were total five cartons and upon checking the same were found filled with the quarter bottles of illicit liqour. The registration number of the aforesaid motorcycle was DL3SDJ0668 and it was a black colour Hero Splendor motorcycle. ASI Ashok Kumar made 100 number call and informed the police. After sometime, IO/ASI Somdutt along with Const. Lokesh reached the spot. ASI Ashok Kumar handed over aforesaid motorcycle and five cartons of illicit liquor to the IO. Thereafter, IO conducted further proceedings. Thereafter, IO recorded my statement.
In his cross-examination he stated that he does not remember that the details of the call which was attended by him on the date of incident. The aforesaid boys were wearing pants and shirts. He Aridaman singh finally left the spot around 7:30-8:00 p.m. He denied the suggestion cheema Digitally signed by Aridaman singh cheema FIR No. 337/2019 State v. Chinnu Page 5 of 20 Date: 2024.11.20 16:44:13 +0530 that he was not on duty on the date of incident or he had not chased any motorcycle. He denied the suggestion that aforesaid motorcycle was not involved in the incident or the same has been falsely implicated. He was relieved by the IO from the spot. He denied the suggestion that ASI Ashok Kumar wrote aforesaid complaint as guided by the IO. He denied the suggestion that he was deposing falsely.
7. PW-3/ HC Lokesh Kumar, deposed that on 04.09.2019, he was posted as Constable at PS Sarita Vihar. On that day, after receiving DD No. 65A, he alongwith IO ASI Somdutt reached the spot i.e. Okhla jungle, Sarita Vihar, New Delhi.
After reaching the spot, they met ASI Ashok Jadav and HC Ombir. Thereafter, ASI Ashok Jadav handed over one motorcycle bearing registration No. DL-3SDJ-0668 and five cartons of illicit liquor to the IO. ASI Ashok Jadav presented his written complaint to the IO. IO made efforts to join independent witnesses but none came forward and left the spot. Upon checking each carton was found containing 50 quarter bottles of asli santra masaledar desi sharab for sale in Haryana only. IO randomly separated one quarter bottle from each carton as sample and thereafter, seized the samples and the case property in the manner mentioned in the seizure memo which is already Ex.PW1/B. IO used his seal of SD during seizure proceeding as mentioned in the seizure memo. IO filled form M-29 and seal after use was handed over to him. IO seized aforesaid motorcycle vide seizure memo which is already Ex.PW1/C and prepared rukka. IO Aridaman singh cheema handed over rukka to him. Thereafter, he went to PS and got the FIR Digitally signed by Aridaman singh cheema Date: 2024.11.20 FIR No. 337/2019 State v. Chinnu Page 6 of 20 16:44:18 +0530 registered and came back to the spot alongwith second IO HC Mahendi Hasan. Thereafter, the case property and documents were handed over to HC Mahendi Hasan. Thereafter, IO recorded his statement.
In his cross-examination he stated that he reached the spot at about 6:30 p.m. He had read the rukka before taking the same to the PS. He had read the FIR after registration of the same.
At that stage, Ld. Counsel for accused has confronted the witness with the copy of FIR and had asked the following questions:-
A question was asked that is it correct that the FIR as mention of two registration numbers of motorcycle to which witness replied in affirmative.
Another question was asked that which one of the two belonged to the motorcycle which was seized by the IO, as per witness's examination-in-chief to which witness replied he could not say.
He denied the suggestion that since he was not involved in the investigation of the present matter, he was unable to depose the correct registration number of the motorcycle which was allegedly seized.
The witness was also shown his statement u/s 161 Cr.P.C., after reading the same, witness states that the registration number mentioned in his statement u/s 161 Cr.P.C. i.e. DL-3C-DJ-0668 is the correct registration number of the motorcycle which was seized on the date of incident. He denied the suggestion that he was deposing falsely at the behest of the IO. Aridaman singh cheema Digitally signed by Aridaman singh cheema Date: 2024.11.20 16:44:23 +0530 FIR No. 337/2019 State v. Chinnu Page 7 of 20
8. PW-4 retired ASI Somdutt deposed that on 04.09.2019, he was posted as ASI at PS Sarita Vihar. He received a PCR call by ASI Ashok Jadav regarding the offene of the present case. Thereafter, he alongwith Const. Lokesh reached the spot. ASI Ashok Jadav handed over aforesaid motorcycle and five cartons of illicit liquor to him. ASI Ashok Jadav presented a written complaint to him which is already Ex. PW1/A. PW-4 made efforts to make independent witnesses join but none came forward and left the spot. Upon checking each carton was found containing 50 quarter bottles of asli santra masaledar desi sharab for sale in Haryana only. He randomly separated one quarter bottle from each carton as sample and thereafter, seized the samples and the case property in the manner mentioned in the seizure memo which is already Ex. PW1/B. He used his seal of SD during seizure proceeding as mentioned in the seizure memo. He filled form M-29 Form and seal after use was handed over to constable Lokesh. He seized aforesaid motorcycle vide seizure memo which is Ex. PW1/C and prepared rukka. The rukka is Ex.PW4/1. He got the FIR registered through Const. Lokesh. Ct. Lokesh came on the spot with second IO HC Mahendi Hasan. Thereafter, second IO prepared the site plan.
The identity of the case property is already established in the testimony of PW-1 and the case property in the present case has already been destroyed vide order dated 08.11.2021, the said order is already Ex.P1, and the sample case property is already Ex.P2.
Identity of the motorcyle was not disputed by the Ld. Counsel Aridaman for accused. singh cheema Digitally signed by Aridaman singh cheema Date: 2024.11.20 16:44:27 +0530 FIR No. 337/2019 State v. Chinnu Page 8 of 20 In his cross-examination he stated that he does not remember when he finally left the spot. He admitted that he did not see the accused on the spot. He admitted that the case property was already apprehended. He denied the suggestion that he was not on duty on the date of incident. He denied the suggestion that the case property was falsely planted on the accused. He denied the suggestion that all the paper work was done while sitting at the PS. He denied the suggestion that the accused person had been falsely implicated in the present case. He denied the suggestion that he never visited the spot. He denied the suggestion that he was deposing falsely.
9. PW-5 ASI Mehndi Hassan deposed that on 04.09.2019, he was posted as HC at PS Sarita Vihar. He was present in the PS when the investigation of the present case was marked to him. Thereafter, he had gone to the spot. There he met ASI Somdutt alongwith PCR staff. He handed over the case property and the relevant documents to him. Thereafter, he recorded the statements of PCR staff. He brought the case property to the PS and deposited the same with malkhana. He sent Ct Nitish Sharma to deposit sample for laboratory test to excise laboratory 18.09.2019. He also obtained the ownership details of the said motor cycle which is EX-PW5/1. He also served notices on the owner of the vehicle. However, the owner of the vehicle did not join the investigation. Thereafter the investigation of the present case was marked to ASI Rakesh Kumar.
In his cross-examination he stated that he does not remember Aridaman when he finally left the spot. He admitted that he did not see the singh cheema accused on the spot. He also admitted that the case property was Digitally signed by Aridaman singh cheema Date: 2024.11.20 16:44:32 +0530 FIR No. 337/2019 State v. Chinnu Page 9 of 20 already apprehended. He denied the suggestion that he was not on duty on the date of incident. He denied the suggestion that the case property was falsely planted on the accused. He denied the suggestion that all the paper work was done while sitting at the PS. He denied the suggestion that the accused person had been falsely implicated in the present case. He denied the suggestion that he never visited the spot. He denied the suggestion that he was deposing falsely.
10. PW-6 ASI Rakesh Kumar deposed that on 28.02.2022 he was posted as HC at PS Sarita Vihar. He received the investigation of the present case after the IO of the present case was transferred. Thereafter, during the course of investigation he served notice U/S 41A CrPC which is EX-PW6/1. He also had interrogated the accused person vide interrogation report which is EX-PW6/4. Thereafter, he bound down the accused person vide notice which is EX- PW6/2. Rest of the case file was already completed by the IO of the case. He had also obtained the excise result which is EX-PW6/3. The accused was present in the court and correctly identified by the witness.
In his cross-examination he stated and denied the suggestion that all the paper work was done while sitting at the PS. He denied the suggestion that the accused person has been falsely implicated in the present case. He denied the suggestion that he was deposing falsely.
11 The accused had admitted the testimony and documents related Aridaman to witnesses mentioned at serial no. 4 and 6 u/s 294 Cr.PC and singh cheema Digitally signed by Aridaman singh FIR No. 337/2019 State v. Chinnu Page 10 of 20 cheema Date: 2024.11.20 16:44:37 +0530 accordingly the said witnesses were dropped from the list of witnesses.
STATEMENT OF ACCUSED
12. Thereafter, before the start of defence evidence, in order to allow the Accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of Accused was recorded without oath on 30.09.2024 under Section 313 CrPC in which he stated that he is innocent, and he has been falsely implicated in the present case. He further stated that he does not want to lead any defence evidence. Hence, DE was closed.
ARGUMENTS AND ANALYSIS
13. Learned Assistant Public Prosecutor for the State while summing up prosecution case, 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.
14. On the other hand, learned counsel for the accused argued that the accused has been falsely implicated by the police and nothing was recovered from his possession. He has stated that prosecution witnesses have admitted that IO did not serve any notice to public Aridaman persons. He has further stated that as per the testimony of PW-1, the singh cheema Digitally signed by Aridaman singh cheema FIR No. 337/2019 State v. Chinnu Page 11 of 20 Date: 2024.11.20 16:44:41 +0530 rukka was sent to the police station after the making of seizure memo then how the FIR no. is mentioned on the seizure memo. He further pointed out that the complainant in the prrsent matter did not identify the accused person in the court and PW-1 had stated that the he had seen the faces of accused boys in his testimony. He further pointed out contradictions in the testimony of prosecution witnesses to argue that the prosecution has failed to prove its case beyond reasonable shadow of doubts. He prayed for acquittal of the accused.
15. I have carefully gone through all the records at hand and testimony of the witnesses. After perusal, this court is of the opinion that the point for determination in the present case is whether on 04.09.2019 at about 06:15PM, at Okhla Tank Jungal Kacha Rasta, towards Haji Colony, Sarita Vihar, New Delhi, accused being owner of vehicle bearing No.DL3CDJ 0668 (M/cycle) were in possession of the said vehicle and from the said vehicle, found illicit liquor as per seizor memo which is Mark X in violation of Rule 20 of Delhi Excise Rules 2010.
16. As per the prosecution on the fateful day the accused was found in possession of illicit liquor without any permit or license. 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. Aridaman singh cheema Digitally signed by Aridaman singh cheema Date: 2024.11.20 16:44:45 +0530 FIR No. 337/2019 State v. Chinnu Page 12 of 20
17. Ld. APP for the state has relied upon Section 52 of the Delhi Excise Act. As per Ld. APP for the state, as soon as the accused was charged of commission of the offence punishable under Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act. The said argument does not find favour with this Court. Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of offence in certain cases - (1) In prosecution under Section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
(2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
18. The words "for the possession of which he is unable to account Aridaman satisfactorily" used in Section 52(1) of the Delhi Excise Act singh cheema Digitally signed by stipulates that as a pre-requisite for the presumption under the Aridaman singh cheema Date: 2024.11.20 16:44:49 +0530 FIR No. 337/2019 State v. Chinnu Page 13 of 20 aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case.
19. It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
20. At this stage, it is pertinent to point out that, there is not a single public witness to the recovery of the liquor in the list of witnesses. The recovery is alleged to have been effected at Okhla Tank Jungal Kacha Rasta, towards Haji Colony, Sarita Vihar, New Aridaman singh cheema Delhi. The place of recovery as per site plan, clearly located in an Digitally signed by Aridaman area where public persons would be readily available. Thus, at the singh cheema Date: 2024.11.20 16:44:53 +0530 FIR No. 337/2019 State v. Chinnu Page 14 of 20 place and time of the alleged recovery of illicit liquor, public persons would in all likelihood have been present and available or have at least passed by the spot.
21. It is pertinent to mention that accused was correctly identified by PW-6. Interestingly, no independent witness is there to substantiate the prosecution story.
22. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery. Further, PW-1, PW-3 and PW-4 have stated in their examination-in-chief, that there were public persons at that time but no one joined the investigation. Further, there is nothing on record to show that IO had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by IO to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
23. This Court is, however, conscious that the prosecution case Aridaman singh cannot be thrown out or doubted on the sole ground of non-joining of cheema Digitally signed by public witnesses as public witnesses keep themselves away from the Aridaman singh cheema Date: 2024.11.20 16:44:59 +0530 FIR No. 337/2019 State v. Chinnu Page 15 of 20 Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
24. Further, as per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed with the seal of SD. Further, the seal in the present case was not handed over to any independent witness. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
25. Moving ahead, PW-1 and PW-3 had deposed that seizure memo Ex.PW-1/B was prepared before the rukka was sent to the police station for registration of the FIR in their examination-in-chief. The FIR was, therefore, admittedly registered after the preparation of seizure memo Ex.PW-1/B. Accordingly, it follows that the number of the FIR would have come to the knowledge of the IO/ASI Somdutt only after a copy of the FIR was brought to the spot by Ct. Lokesh. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW-1/B bears the Aridaman FIR number and case details. The same indicates that FIR number singh cheema was mentioned on the said document while preparing the same. Digitally signed by Aridaman singh cheema Date: 2024.11.20 16:45:03 +0530 FIR No. 337/2019 State v. Chinnu Page 16 of 20
26. Reliance here is placed on the decision of the Hon'ble High Court of in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127 wherein it was observed in as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my Aridaman singh mind, about the genuineness of the weapon of offence alleged cheema Digitally signed to have been recovered from the accused." by Aridaman singh cheema Date: 2024.11.20 16:45:07 +0530 FIR No. 337/2019 State v. Chinnu Page 17 of 20
27. Perusal of record shows that the Excise Result, Ex.PW6/3, was obtained qua 5 sample bottles (180 ml each) only, whereby the presence of alcohol in the said sample bottles was confirmed. The presence of alcohol in the remaining allegedly recovered liquor bottles has not been thus, proved by the prosecution. Now, since the State has only found 5 bottle (900ml. of liquid), allegedly recovered from the accused containing alcohol, offence under section 33 of the Delhi Excise Act, 2009 cannot be said to have been made out as the same falls within the maximum permissible limit specified under Rule 20 of the Delhi Excise Rules, 2010. At this juncture, the ruling of the Hon'ble High Court of Karnataka, in its judgment titled as Nagesh S/O Ningaiah vs The State Of Karnataka, Criminal Revision Petition No.772 /2009, decided on 31 January, 2014, maybe adverted to, wherein, while acquitting the accused of a similar offence, following observations were made:
"It is seen from the mahazar that out of 49,440 Whisky bottles, 15 Whisky bottles of 180 ml. each were sent for Chemical Analysis, and it is opined that there was presence of Ethyl Alcohol in all the bottles that were sent for Chemical Examination, fit for consumption. Thus, the total quantity sent for Chemical Analysis is less than permitted quantity under law. We do not Aridaman know the contents of the other bottles seized singh cheema under a Panchanama. There is no evidence Digitally signed by Aridaman singh to show that all other bottles also contained cheema Date: 2024.11.20 16:45:12 +0530 alcohol. When the quantity found in the bottle sent for Chemical Examination is less than permitted limit and when there is no evidence regarding the contents of all other bottles seized under Panchanama, it cannot FIR No. 337/2019 State v. Chinnu Page 18 of 20 be said that the accused was in possession of the illicit liquor without pass or permit more than permitted quantity so as to constitute an offence. The unreported decision of this Court in W.P.No.17991/2011 (Excise), dated 28.02.2012, relied upon by the learned counsel for the petitioner is rightly applicable to the facts of this case.........In this case also the prosecution has failed to establish that the accused was in possession of liquor more than permitted quantity."
28. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo Ex.PW1/B. The same leads to inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
29. The facts that no independent witness was cited or examined, the appearance of FIR number and case particulars on the seizure memo Ex.PW1/B has not been explained, there is no DD entry regarding the departure of the police officials and the amount of Aridaman proved quantity of alcohol is 900 ml (5 samples of 180 ml) which is singh cheema not an illegal amount and contradictions in the testimony of Digitally signed by Aridaman singh cheema prosecution witnesses and there is no public witness present, when Date: 2024.11.20 16:45:16 +0530 kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
FIR No. 337/2019 State v. Chinnu Page 19 of 2030. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
31. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who are entitled to be exonerated of the charges against the accused in the present case. The accused Chinnu W/o Lt. Sh. Hetram is hereby acquitted of the offence punishable under Section 33/52(2) Delhi Excise Act.
Digitally signed byAnnounced in open court on 20.11.2024. Aridaman singh cheema Aridaman singh cheema Date: 2024.11.20 16:45:22 +0530 (Aridaman Singh Cheema) JMFC-05/SE District/Saket Court, New Delhi/20.11.2024 Note: This judgment contains 20 pages and each page bears the digital signature of the undersigned.
Digitally signed by Aridaman Aridaman singh
singh cheema
Date: 2024.11.20
cheema 16:45:27 +0530
(Aridaman Singh Cheema)
JMFC-05/SE District/Saket Court,
New Delhi/20.11.2024
FIR No. 337/2019 State v. Chinnu Page 20 of 20