Delhi District Court
State vs Ajay@Deepu on 18 January, 2024
IN THE COURT OF SH. AYUSH SHARMA, MM-02, NORTH WEST
DISTRICT, ROHINI COURTS, DELHI
STATE VS. AJAY @ DEEPU
FIR NO. 77/2008
PS: KANJHAWALA
U/s 78/61 Punjab Excise Act, 1914
Date of institution of the case : 01.07.2008
Date of judgment reserved : 16.01.2024
Date of commission of offence : 12.05.2008
Name of the complainant : Ct. Balwan Singh No. 1060/OD,
PS Kanjhawala.
Name of accused and address : Ajay @ Deepu S/o Kartik R/o H. No.
B-61, 85, Jwala Puri No. 4, opposite
Nangloi Depot, Delhi.
Offence complained of : 78/61 Punjab Excise Act, 1914
Plea of the accused : Pleaded not guilty
Date of Judgment : 18.01.2024
Final order : Held not guilty/Acquitted.
JUDGMENT
1. Briefly stated that the case of the prosecution against the accused is that on 12.05.2008 at about 10.10 pm at Tikri Nizampur Road, Near Ply Factory, Delhi, within the jurisdiction of Police Station Kanjhawala, accused was found in possession of 150 quarters of illicit liquor bearing label Masaledar Desi Sharab for sale in Haryana only, in scooter bearing no. DL 4 SAD 5661, without having any permit or license for possession or transportation of the same. On that basis, the present FIR was registered against the accused. Upon completion of investigation, charge sheet u/s 78/61 of Punjab Excise Act, 1914 was filed and the accused was sent for trial.
2. The Ld. Predecessor of this court took cognizance of the offence and issued process against the accused. Pursuant to the appearance of the accused, he was State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 1 / 11 supplied with the copy of chargesheet in compliance of Section 207 CrPC. Upon hearing the arguments, vide order dated 27.07.2009, charge under Section 78/61 Punjab Excise Act was ordered to be framed against the accused. The accused pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
3. In order to establish its case against the accused, prosecution has examined five witnesses namely SI Jasbir ('PW1'), ASI Balwan ('PW2'), SI Dharampal ('PW3'), Retd. ASI Naresh Kumar ('PW4') and ASI Devanand ('PW5').
4. PW1 SI Jasbir Singh deposed that on 12.05.2008, he was posted at Excise Department and at about 9.45 pm, one person told him that one person will come from Bahadurgarh and will go to Delhi who is having illicit liqour in his possession. He further stated that he reached the ply factory, Nizampur Road where Ct. Balwan/PW2 was already present. He further stated that the police officials were checking the traffic which was coming from the side of Bahadurgarh from Nizampur and thereafter, he conveyed this information to ASI Balwan/PW2. He further stated that both of them started checking their vehicles jointly and at about 10.10 pm, one scooter bearing no. DL4SAD-5661 was stopped. On apprehension and on checking the same, one red and one white colour bag was found containing illicit liquor. He further stated that the name of the accused was revealed as Ajay and Ct. Balwan/PW2 conveyed this information to the PS. He further stated that thereafter, HC Dharampal/PW3 came to the spot and the custody of accused as well as illicit liquor was handed over to him. He further stated that IO/PW3, requested 3-4 public persons to join the investigation but, they did not stop and left the place without telling their names and address. He further stated that on checking, the illicit liquor in the bag and diggy, 50 quarter bottles of Asli Santra Desi Masaledar Sharab were found. He further stated that one quarter bottle was taken out as sample and thereafter, IO prepared the seizure memo Ex. PW1/A and sealed the case property with the seal of DPS and handed over the seal after use to Ct. Balwan/PW2. He further State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 2 / 11 disclosed that FIR was got registered through Ct. Balwan and thereafter, he was freed from the investigation and case property was taken into PS. He has correctly identified the accused in the court and the case property Ex. P2. He has further identified the photograph of the scooter Ex. P1. This witness was also cross examined by Ld. APP after taking permission from the Court. In his cross examination by Ld. APP, PW1 stated that 100 quarter bottles were found in the bag and 50 quarter bottles were found in diggy. He further admitted that the seizure memo of the scooter Ex. PW1/B was prepared in his presence.
5. In his cross examination by Ld. Counsel for accused, PW1 stated that he reached at the spot at about 10 pm when Ct. Balwan was checking the vehicle by keeping one barricade on the road. He further stated that he does not remember whether Ct. Balwan was having any vehicle with him at the spot. He further disclosed that the secret informer met him at a distance of 100-200 mtrs from the spot where he met with Ct. Balwan. He further stated that on that day, he was not having mobile with him and that is why the secret information was not shared with the concerned PS. He stated that he did not sign the site plan. He further disclosed that the documents were prepared by the IO by putting them in the seat of the motorcycle. He further stated that Ct. Balwan came to the spot after registration of FIR at about 1 to 1.15 pm and he finally left the spot at about 2.30 am. He further stated that he cannot tell as to how and by whom, the case property was taken to PS. He further stated that the arrest memo and personal search memo were prepared in his presence and he has put his signatures on both the documents at the spot and on being confronted, PW1 states that his signatures are not there. He denied that no case property was recovered and the accused has been falsely implicated in the present case.
6. PW2 ASI Balwan also deposed on the same lines as that of PW1.
7. In his cross examination by Ld. Defense Counsel, PW2 stated that he does not State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 3 / 11 remember the DD No. of his departure for patrolling in the area on 12.05.2008. He further stated that he stopped the accused by putting two barricades on the road and he was on a government motorcycle during that time. He further disclosed that IO reached at the spot at about 12.00 am on his scooter. He further stated that he does not remember as to what paper was first prepared by IO. He further stated that HC Jasbeer met him at about 10.15 pm and he does not remember at what time, he reached the spot after the registration of FIR. He further stated that he had put his signatures on the site plan and on being shown the same, PW2 stated that his signatures are not there. He further stated that he finally left the spot with IO at about 2.30 am. He further stated that the case property was taken on the same scooter and they reached the PS at about 3.00 am. He denied that no illicit liquor was recovered from the accused and the case property was planted upon him.
8. PW3 SI Dharampal deposed that on 12.05.2008, at about 10.10 pm, on receipt of information from Ct. Balwan/PW2, he reached at the spot and took over the custody of accused as well as the illicit liquor. He further stated that he requested 3-4 public persons to join the investigation but, none of them agreed and left the place without disclosing their names and addresses. He further deposed that he checked the illicit liqour in the bag as well as in diggy and upon checking, 50 quarter bottles each of label Asli Santra Desi Masaledar Sharab were found. He further disclosed that he took out one quarter bottle as sample and prepared the seizure memo Ex. PW1/A and handed over the same to Ct. Balwan/PW2. He further deposed that case property was sealed with the seal of DPS and the seal was handed over to him after use. He further stated that he prepared the tehrir Ex. PW3/A, and got the FIR registered through Ct. Balwan/PW2. He further disclosed that at about 12.30 am, Ct. Balwan returned to the spot with the copy of FIR and original rukka and thereafter, Ct. Balwan was freed from the investigation and the case property was taken into PS. He further stated that he prepared the site plan Ex. PW3/B, arrested the accused vide memo Ex. PW1/B State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 4 / 11 and personally searched him vide memo Ex. PW1/C. He has correctly identified the accused in the court and the case property Ex. P2. He has further identified the photograph of the scooter Ex. P1.
9. In his cross examination by Ld. Defense Counsel, PW3 stated that he reached at the spot at about 10.30-11.00 pm on his own scooter. He further stated that he firstly prepared the seizure memo and he does not know at what time, HC Jasbeer left the spot but he left the spot along with him finally. He further stated that he does not remember by which conveyance, the case property was taken to PS and by whom. He admitted that public persons were passing through the spot and he did not obtain the signatures of anyone on the site plan. He denied that no illicit liquor was recovered from the accused and the case property was planted upon him.
10. PW4 Retd. ASI Naresh Kumar deposed that in register no. 19, at serial no. 1548, Ex. PW4/A the deposition of sealed case property by IO/PW3 on 12.05.2008 is mentioned. He further deposed that on 22.05.2008, the sealed samples of the case property were sent to excise lab through Ct. Devanand vide RC No. 41/21/08 Ex. PW4/B.
11. In his cross examination by Ld. Counsel for accused, PW4 admitted that he did not obtain the signatures of ASI Devanand at the time of handing over the samples to him in register no. 19.
12. PW5 ASI Devanand deposed that on 22.05.2008, he took sealed samples from MHC(M) HC Naresh and thereafter, he went to Excise Labortory and deposited the same vide RC No. 41/21/08.
13. In his cross examination by Ld. Counsel for accused, PW5 stated that he does not remember whether he signed register no. 19 at the time of receiving samples State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 5 / 11 from MHC(M). He denied that he is deposing falsely.
14. Vide separate statement u/s 294 CrPC, accused admitted the original FIR No. 77/2008 Ex. Y1 and Excise Result Ex. Y2. Accordingly, vide order dated 11.10.2023, PE was closed. In the statement recorded u/s. 313 CrPC, accused denied the case of the prosecution and pleaded innocence. He stated that he has been falsely implicated by the police officials and the case property was planted upon him. He did not opt to lead defence evidence.
15. Ld. APP has submitted that the case is proved beyond reasonable doubt as the witnesses have identified the case property and the accused during their deposition. He has submitted that due to non-cooperation by public witnesses it gets difficult to ensure their presence at the time of seizure of case property. It is also submitted that such offences cause great revenue loss to the state and the accused be convicted of the offence charged u/s 33 Delhi Excise Act.
16. Per Contra, Sh. Bisla, Ld. Counsel for defence has submitted that that accused is completely innocent and has been falsely implicated in the present case and the alleged recovery of illicit liquor has also been falsely planted upon her. It is further submitted that not joining the public witnesses despite availability and not serving any notice to them by the police officials cast shadow of doubt on the story of prosecution. He has also argued that the seal was not handed to an independent witness and therefore, tampering with the contents of the sealed parcel can also not be ruled out. At the end, he has submitted that the prosecution has completely failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
17. I have heard the submissions of Ld. APP for State and the Ld. Counsel for accused and carefully perused the judicial record. The scrutiny of the testimony of PW1, PW2 and PW3 reveal that the accused was found in possession of 150 quarters of illicit liquor bearing label Masaledar Desi Sharab for sale in Haryana State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 6 / 11 only, in scooter bearing no. DL 4 SAD 5661. The recovery is alleged to have been effected 12.05.2008 at about 10.10 pm at Tikri Nizampur Road, Near Ply Factory, Delhi. The place of recovery and timing of arrest is such that the presence of independent witnesses cannot be ruled out as the place of recovery is clearly located in an area where public persons would be readily available. Pertinent is that it is not the case of the prosecution that no public witnesses were available at that time, rather PW1 and PW2 in their evidence have specifically stated that public persons were asked to join the investigation but none of them agreed and left the place without disclosing their names and addresses. Whether association of such persons as public witnesses was possible in the facts and circumstances of this case is a fact and the burden to prove the same lies on prosecution. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion.
18. The aforesaid flaw in the investigation makes the story of the prosecution unworthy of credit, specifically in the light of judgment in the case titled Anoop Joshi vs. State 1992 (2) C. C. Cases 314 (HC) wherein Hon'ble High Court of Delhi observed:
"18. It is repeatedly laid down by this court that in such case, it should be shown by the police that sincere efforts had been made to join independent witnesses. In the present case, it is evident to note that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case, any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of laws while declining to perform their legal duty to assist the police in State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 7 / 11 investigation as a citizen, which is an offence under the IPC."
19. There is nothing in the testimony of PW1, PW2 or PW3 whether any sincere efforts were made by them to join independent witnesses in the proceedings / investigation. The only explanation accorded by the witnesses is that they asked the public persons to join the investigation but none agreed. Such an ordinary reply/ explanation of the witnesses does not support the case of prosecution. Pertinent is the Section 100 (4) CrPC also mandates the police official conducting search to join two respectable persons of the society. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the local police in the present case cannot be ruled out. The aforesaid view of this court is further fortified by the observations made by Hon'ble Delhi High Court in Pawan Singh v. The Delhi Administration 1989 Cri.L.J 127, wherein a similar view has been taken.
20. This court is conscious that the case of the prosecution cannot be thrown out or doubted on the sole ground of non-joining public witnesses. However, the aforesaid lapse on the part of the police officials assumes significance on account of another grave contradiction apparent in documents Ex.PW1/A and Ex. PW1/B. PW1 has deposed that after seizure of the case property vide memo Ex. PW1/A and Ex. PW1/B, PW2 was sent with original tehrir for getting the FIR registered. The FIR was therefore, admittedly registered after the preparation of seizure memos Ex. PW1/A and Ex. PW1/B. Accordingly, it follows that the number of FIR would come to the knowledge of IO only after a copy of FIR is brought to the spot by PW2. Thus, ordinarily, the FIR number should not find mention in the seizure memos Ex. PW1/A and Ex. PW1/B, which came into existence before the registration of FIR. This court notices that surprisingly, the seizure memos Ex. PW1/A and Ex. PW1/B bears the FIR number and the case details in the same ink and the same handwriting in which the documents were prepared. It also raises a doubt that the entire paper work was done by the police State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 8 / 11 officials at the police station itself. This also raises doubt about the recovery of the said case property from the present accused and strengthens the possibility of planting of the case property upon the accused. In this regard, reference can be made to the judgment of Hon'ble High Court of Delhi in case titled as Mohd Hasim V/s State 1999 VI AD (Delhi) 569 wherein it was observed:
"4. 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 memos (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 top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstances 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."
21. It is further notable that PW1 in his examination-in-chief has deposed that the seal after use was handed over to PW2. Significantly, there is no handing over memo/or any other document regarding the same on record. There is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station. In these circumstances, the possibility of tampering with case property cannot be ruled out. Even otherwise, the failure to prepare any such document for this purpose also leads to a missing link in the entire series of investigation raising doubt over the reasonable and rational manner of investigation as claimed by prosecution.
State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 9 / 1122. The prosecution has also failed to prove the DD entry showing the departure of PW2 from the police station. Such a deficiency which basically is nothing but the violation of Rule 22.49 Punjab Police Rules which is adverse to the prosecution version. Since public persons were not joined in the investigation, the departure entry of PW2, who was allegedly performing general duty at the spot at the relevant time and had apprehended the accused with the case property, becomes a vital piece of evidence. This also raises a serious doubt as to the recovery of illicit liquor from the possession of accused and creates a dent in the case of the prosecution.
23. To point out further infirmities, PW2 in his cross states that PW3 reached the spot at about 12 am (night) on his scooter whereas PW3 says that he reached the spot at around 10.30 to 11.00 pm. It is further pertinent to point that PW1 in his deposition says that he left the spot alone but PW3 says that, PW1 left the spot finally with him. These contradictions and infirmities in the case of the prosecution also raises a doubt as to the recovery of the illicit liquor from accused.
24. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., 1990(3) S.C.C. 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 10 / 11 reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
25. The fact that no independent witnesses were cited or examined, possibility of misuse of seal has not been ruled out, appearance of FIR number and case particulars on the seizure memos has not being explained and the other infirmities as pointed out above, when kept in juxtaposition to each other, cast a serious doubt over the case of the prosecution. In view of what has been taken note by me, the possibility of false implication of the accused cannot be ruled out. Thus, in view of the foregoing analysis, this court is of the considered opinion that the aforesaid contradiction in the case of the prosecution are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend the benefit of doubt to him. Hence, accused Ajay @ Deepu S/o Kartik is held not guilty and stands acquitted of the offence punishable under Section 78/61 Punjab Excise Act, 1914. File be consigned to record room as per rules.
Announced in Open court (Ayush Sharma)
On 18th January, 2024 MM-02, North-West District
Rohini Courts/18.01.2024
This judgment consists of 11 pages and each and every page of this judgment is signed by me.
(Ayush Sharma) MM-02, North-West District Rohini Courts/18.01.2024 State vs. Ajay @ Deepu FIR No. 77/2008 PS Kanjhawala Page No. 11 / 11