Delhi District Court
Cr. Case/423245/2016 on 4 April, 2019
IN THE COURT OF SH. SUMEDH KUMAR SETHI,
CHIEF METROPOLITAN MAGISTRATE,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
'
State v. Shibu
Unique Case ID No. 423245/2016
FIR No. 369/2013
Police Station : Najafgarh
Under Section: 33 Delhi Excise Act
Date of institution : 29.01.2016
Date of reserving : 02.04.2019
Date of pronouncement : 04.04.2019
JUDGMENT
a) Serial number of the case : 24/3/2016
b) Date of commission of : 06.10.2013 offence
c) Name of the complainant : Ct. Rajesh, NO. 1077/SW
d) Name, parentage and : Shibu S/o Sh. Sher Singh, address of the accused R/o E37, Jai Vihar, Phase1, Najafgarh, New Delhi.
e) Offence complained of : Section 33 of the Delhi Excise Act
f) Plea of the accused : Charge for the offence punishable U/s 33 of the Delhi Excise Act was served upon accused Shibu to which he pleaded not guilty and claimed trial.
State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 1 of 16
g) Final order : Accused Shibu is being acquitted of the offence punishable U/s 33 of the Delhi Excise Act (hereinafter referred to as 'The Act'.
h) Date of final order : 04.04.2019 CASE OF PROSECUTION
1. Briefly stated, the case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 06.10.2013, Constable Rajesh and Constable Dheeraj were on patrolling duty at Bunny Camp, Najafgarh where they received a secret information regarding sale of illicit liquor in front of House no. E-37, Jai Vihar, Phase-1, New Delhi. On receipt of the information, they alongwith the secret informer went to the spot where they found accused Shibu sitting on a cot in front of House no. E-37, Jai Vihar, Phase-I, New Delhi, indulged in selling illicit liquor. Accused apprehended by them and one plastic katta was found under the cot on which the accused was sitting. The katta was found containing 103 quarter bottles of ''Asli Santra Masaledar Desi Sharab''. Information in this regard was given to the police station and on receipt of the said information, HC Rambir reached at the spot where the accused and the katta containing illicit liquor was handed over to him by Ct. Rajesh and Ct. Dheeraj. HC Rambir took out four quarter bottles as sample and sealed sealed the same with the seal of RS. The remaining bottles were sealed in the same katta with the seal of RS. The IO seized the State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 2 of 16 case property i.e. illicit liquor and the sample bottles, prepared rukka, got the case registered, prepared site plan and thereafter arrested the accused in the present case. During the course of further investigation, the samples of the illicit liquor were sent to the Excise Laboratory for expert analysis.
COURT PROCEEDINGS
2. Upon completion of investigation, police report under Section 173 of the Cr.P.C. was filed.
3. The copies of the police report and annexed documents were supplied to the accused in due compliance of Section 207 Cr.P.C.
CHARGE
4. Vide order dated 02.08.2017, passed by the Ld. Predecessor of this Court, charge for the offence punishable under Section 33 of the Act was framed against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
5. To prove its case, the prosecution in all examined five witnesses.
6. PW-1 Ct. Dheeraj and PW-3 HC Rajesh (complainant) are the recovery witnesses. PW-2 Ct. Somdutt is a witness of the Panchnama of the case property. PW-4 ASI Rambir is the part IO of the case. PW-5 HC Radhey Shyam is the part/last IO of the case and he had filed the charge-sheet after collecting the Excise Lab State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 3 of 16 Report.
STATEMENT / DEFENCE OF THE ACCUSED
7. In his examination recorded under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he is innocent and has been falsely implicated in the present case. The accused did not lead any evidence in his defence.
ANALYSIS AND FINDINGS
8. The record has been thoroughly and carefully perused. The respective submissions of learned Assistant Public Prosecutor for the State and Ld. Counsel for the accused, have been considered.
9. 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.
10. Relying upon Section 52 of the Act, learned Assistant Public Prosecutor for the state had argued that where the accused is charged of commission of the offence punishable Section 33 of the Act, a presumption in favour of the prosecution is raised under Section 52 of the Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary. The said argument does not find favour with this Court. Section 52 of the Act reads as under:
"Presumption as to commission of offence in State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 4 of 16 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".
11. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Act clearly reveal that as a pre-requisite for the presumption under the 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 Act can be raised against the accused in the present case.
Non production of case property in the Court
12. At the outset, it is relevant to note here that vide order dated State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 5 of 16 29.01.2016 passed by the Ld. Predecessor of this Court, the case property was ordered to be disposed off subject to preparation of a proper panchnama and taking photographs in the presence of the accused. The panchnama and the four photographs of the case property have been produced in the court and are Ex.PW2/A and Ex.P1 (Collectively). Thus, the case property has never been produced in the court. Although, in view of the aforesaid order of the Ld. Predecessor of this court, physical production of the case property is not at all necessary. However, Ld. Counsel for the accused has pointed out certain lacunae even in the Panchnama and the photographs of the case property produced in the court. It has been contended that no case particulars of the present case are visible on the katta of the illicit liquor shown in the photographs Ex.P1. He has further contended that the photographs of the illicit liquor were not got counter signed from the accused despite directions of the Ld. Predecessor of this Court. The court finds itself in consonance with the submissions of Ld. Counsel for the accused and has observed that no particulars of the present case are visible in the katta of the case property. The court can take a judicial notice of the fact that numerous cases of Excise Act are being registered at various police stations on day to day basis and in almost all the cases the make of the illicit liquor is ''Asli Santra Masaledar Desi Sharab''. Further, the seal of RS is also very common and in fact the IO ASI Rambir Singh himself would have used this seal in various cases of illicit liquor. In view thereof, it was important that the particulars of the present case must have been mentioned or visible on the katta of illicit liquor, in order to differentiate it from others. This State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 6 of 16 is more particularly in view of the fact that merely by perusing the photographs, the court cannot ascertain as to how many quarter bottles of illicit liquor were taken out from the katta, as in the photograph Ex.P1, there is a heap of quarter bottles of illicit liquor and in the said heap, the number of quarter bottles cannot be counted.
Non-joining of public witnesses in the investigation.
13. Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from near House No. E-37, Jai Vihar, Najafgarh, New Delhi i.e. a residential colony at about 06.20 pm. Therefore, public witnesses must have been easily available at the spot. Further, in the rukka itself, it has been mentioned by the Ct. Rajesh that he had requested 4/5 passersby to join investigation but none agreed and left the spot disclosing their inability to join investigation. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 7 of 16 Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
14. This Court is, however, conscious 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. 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 State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 8 of 16 prosecution version.
Presence of Ct. Rajesh and Ct. Dheeraj at the spot.
15. The present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by Ct. Rajesh and Ct. Dheeraj who were allegedly present at the spot while being on patrolling duty vide DD no. 64 B (as stated in the rukka). Needless to say that all the police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II
- The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
Since public persons were not joined in the investigation, the aforesaid departure entry of the aforesaid police officials, becomes a vital piece of evidence. However, neither any such departure entry has been placed on record nor any witness has been cited by the IO State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 9 of 16 to prove the said departure entry. Both recovery witnesses have stated in their cross-examination that DD no. 64 B recorded their departure. However, no such DD entry was found on record. In the absence of the departure entry of aforesaid two police officials viz. Ct. Rajesh and Ct. Dheeraj, their presence at the spot becomes doubtful.
Possibility of misuse of seal of the investigating officer
16. As per the testimonies of the prosecution witnesses, the samples of illicit liquor and case property were sealed by the investigating officer with the seal of RS i.e. Head Constable Rambir Singh. As per the seizure memo of the illicit liquor Ex.PW1/A, the seal after use was handed over to Ct. Rajesh Kumar i.e. a recovery witness and the complainant in the present case. However, no handing over memo was prepared at the time of handing over the seal to Ct. Rajesh Kumar. Further, the seal in the present case was not handed over to any independent witness nor it was deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
17. The aforesaid observations are more particularly in view of the fact that despite the fact that the present case rests solely on the recovery of illicit liquor from the accused persons, the RC vide which, the case property was allegedly sent to the Excise Lab for expert analysis has not been placed on record. In fact, the charge-sheet is silent as to when, through whom and vide which RC, the samples State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 10 of 16 were sent to the Excise Laboratory. As per the IO PW-4 ASI Rambir, the samples were sent to the Excise Laboratory on 14.01.2014 through Ct. Sudershan, however, neither this witness has been cited as a witness by the prosecution nor examined.
Other infirmities in the prosecution case
18. PW-4 ASI Ranbir has deposed that first of all he prepared the seizure memo of the illicit liquor Ex. PW-1/A, and thereafter, filled in Form M-29 before preparing the tehrir Ex. PW-4/A before preparing the rukka for registration of the case. It is, therefore, clear that the seizure memo of the liquor and Form M-29 were prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo Ex. PW-1/A and Form M-29. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Constable Dheeraj. Thus, ordinarily, the FIR number should not find mention in the seizure memo and the Form M-29, which came into existence before registration of the FIR. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 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 State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 11 of 16 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 mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
19. In paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 12 of 16 documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
20. 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. PW-1/A and the Form M-29 in the same handwriting, ink and flow in which these documents were prepared. The same leads one to only one 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.
21. It is also relevant to mention here that as per the rukka, it was sent from the spot at about 08.50 pm and the information at the PS was received at 09.25 pm i.e. after thirty five minutes. This is surprising in view of the fact that as the FIR itself, the distance between the spot and the police station is only two kilometers and since as per Ct. Dheeraj and Ct. Rajesh, Ct. Dheeraj had gone to the State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 13 of 16 police station to get the FIR registered on a motorcycle and that being the case, it would have hardly taken him 5-10 minutes to reach the police station. This is more particularly in view of the fact that as per the IO PW-4 HC Rambir, Ct. Dheeraj had returned back to the spot with the FIR at about 09.45 pm i.e. within twenty minutes of his reaching the police station, which suggest that not only the FIR was registered within this period but Ct. Dheeraj also managed to reach at the spot within these twenty.
22. Another lacuna in the prosecution case which is fatal to it is that the complainant himself acted as the investigating officer to a great extent. It was on the complaint of Constable Rajesh that the FIR was lodged in the present case and he, therefore, became the complainant. It is the prosecution's case that on receipt of the secret information, Ct. Rajesh and Ct. Dheeraj, rather than informing the police station and waiting for some senior police official to come at the spot to work upon the secret information or discussing the secret information some senior police officials, they themselves started working upon the same by constituting a raiding party and even requesting public persons to join investigation, completely ignoring the fact that they being the lowest rank police officials, should have discussed the information with some senior officials and seek directions from them. The same leaves room for doubting the fairness of the investigation conducted by Ct. Rajesh.
State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 14 of 16 Contradictions in the testimony of prosecution witnesses
23. Besides the aforesaid, there are also some contradictions in the testimony of prosecution witnesses.
24. While as per the Ct. Dheeraj, they left the spot after completion of the investigation at 10.00 pm, as per Ct. Rajesh, they left the spot after completion of the investigation at 10.40 pm. Contrary to both of them, as per PW-4 ASI Rambir, they had left the spot after completion of the investigation at about 11.00 pm.
25. While as per PW-4 ASI Rambir, Ct. Dheeraj went to the PS alongwith rukka on Govt. Motorcycle, as per PW-3 HC Rajesh, Ct. Dheeraj went to the PS alongwith the rukka on E-Rickshaw.
26. As per PW-3 HC Rajesh, he went to the PS on Govt. Motorcycle with Ct. Dheeraj and the IO went to the PS on his personal private bike, however, contrary to this as per PW-4 ASI Rambir, Govt. Gypsy was called from the PS by him and they all went to the PS in the said Gypsy alongwith the case property.
27. While as per PW-3 HC Rajesh, Ct. Dheeraj went to the PS alongwith rukka and case property, as per PW-4 ASI Rambir they had taken the case property along in the gypsy when they finally left the spot.
CONCLUSION
28. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 15 of 16 the accused, who is entitled to be exonerated of the charges against her in the present case. Accused Shibu is hereby acquitted of the offence punishable under Section 33 of the Act. Case property, if any, be confiscated to State as per rules.
29. Provisions of Section 437 A have been complied with.
Digitally signed by30. File be consigned to record room. SUMEDH SUMEDH KUMAR KUMAR SETHI Date: 2019.04.04 SETHI 17:22:15 +0530 ANNOUNCED IN THE OPEN COURT (Dr. SUMEDH KUMAR SETHI) DATED: 04.04.2019 CHIEF METROPOLITAN MAGISTRATE SOUTH WEST DISTRICT, DWARKA COURTS New Delhi State v. Shibu FIR No. 369/2013 P.S.: Najafgarh Page 16 of 16