Delhi District Court
State vs . Shail Kumari And Mishri Lal. on 4 April, 2022
CNR no. DL CT-020170622019
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE-07, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR no. DLCT0170622019
CIS No. 11097/19
State Vs. Shail Kumari and Mishri Lal.
FIR No.19/2019
PS. Subzi Mandi
U/s. 33 Delhi Excise Act
JUDGMENT
1) The date of commission of offence : 24.01.2019
2) The name of the complainant : HC Sachin
3) The name & parentage of accused : 1) Shail Kumari D/o Jai Kishan
2) Mishri Lal S/o Ram Dass
4) Offence complained of : u/s. 33 Delhi Excise Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 04.04.2022 Date of Institution : 08.07.2019 Judgment reserved on : 04.04.2022 Judgment announced on : 04.04.2022 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.04 16:35:32 +0530 State Vs Shail Kumari and Mishri Lal; CIS No.11097/19; FIR NO. 19/2019; PS.Subzi Mandi, U/s. 33 Delhi Excise Act, 1/10 CNR no. DL CT-020170622019 THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution against the accused Mishri Lal is that on 24.01.2019 at about 6:55 PM at Tikona Park near court road he was found in the possession of illicit liquor which he was carrying in TSR bearing no. DL 1RL 2259 and seized vide seizure memo Ex.PW1/B being in contravention of the provisions of Delhi Excise Act. On the other hand the case of the prosecution against the accused Shail Kumari is that she let the vehicle to the co-accused Mishri Lal and that vehicle was used for the transportation of illicit liquor.
2) After investigation, charge-sheet was filed against the accused persons. The copy of charge-sheet was supplied to the accused persons in compliance of Section 207 Cr. P.C. Thereafter, charge was framed against the accused Mishri Lal for the offence under Section 33 Delhi Excise Act to which he pleaded not guilty and claimed trial. On the same day charge for the offence U/s 52 of Delhi Excise Act was framed upon the accused Shail Kumari to which she pleaded not guilty and claim trial.
3) In support of its version, prosecution examined three witnesses. Accused persons not disputed the factum as to the registration of the present FIR and the excise lab report as to the chemical examination of the exhibits of the present case. After conclusion of prosecution evidence, statement of accused persons were recorded separately wherein accused persons claimed to be innocent and denied the allegations against them. Accused persons opted not to lead any defence evidence. Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.04 16:35:41 +0530 State Vs Shail Kumari and Mishri Lal; CIS No.11097/19; FIR NO. 19/2019; PS.Subzi Mandi, U/s. 33 Delhi Excise Act, 2/10 CNR no. DL CT-020170622019
4) I have heard Ld. APP for State and Ld. Counsel for accused persons. I have perused the record.
5) The testimonies of prosecution witnesses are being touched upon, in brief, as follows:-
5.1) PW1 HC Sachin and PW3 Ct Vikram deposed on the same lines that on 24.01.2019 they were patrolling in the area of court road, Tikona Park and there they saw one TSR bearing no. DL 1RL 2259 who took U-turn after sensing their presence. The TSR was got stopped on suspicion and found containing 16 boxes of liquor namely 'Santra Masaledaar' and each box was found containing 50 quarter bottles. The accused Mishri Lal was correctly identified. It was deposed that one quarter bottle from each box was separated as sample and remaining were kept in the boxes. The case property was sealed with the seal of SK. They deposed that the samples bottles were given no. A1 to A16 while the eight kattas (containing two boxes each) were given no. B1 to B8. It was deposed that Form M 29 was filled and the seizure memo Ex.PW1/B was prepared as to the recovery of illicit liquor and other seizure memo for the TSR Ex.PW1/C was prepared. They deposed that thereafter rukka was prepared and FIR was registered. They deposed that ASI Har Swaroop came at the spot who conducted the further investigation. They correctly identified the accused and the case property. 5.2) PW2 ASI Har Swaroop deposed that on 24.01.2019 the investigation of the present case was marked to him for which he went to spot i.e Tikona Park, Rajender Market, Tis Hazari Courts where he met Ct Yogesh and HC Sachin. He deposed that the custody State Vs Shail Kumari and Mishri Lal; CIS No.11097/19; FIR NO. 19/2019; PS.Subzi Mandi, U/s. 33 Delhi Excise Act, 3/10 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.04 16:35:47 +0530 CNR no. DL CT-020170622019 of the accused Mishri Lal and illicit liquor was handed over to him.
He deposed that he prepared the site plan Ex.PW1/E. He deposed that the accused Mishri Lal was arrested and personally searched. He deposed that the registered owner of the TSR used for transportation of illicit liquor was traced and the accused Shail Kumari was charge- sheeted as she is the registered owner of the TSR and she let the TSR to the accused Mishri Lal who used the same for the transportation of illicit liquor.
6) It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
7) The manner in which the case property was allegedly seized in the present case is under cloud of doubt. The first thing which came up after perusing the testimony of all the prosecution witnesses that the seizure memo of the case property Ex.PW1/B and the form M-29 Ex.PW1/A were prepared prior to the preparation of rukka. This fact is also clear from the FIR Ex.A1 itself in which there is mentioning of seizure memo and the Form M-29. This reveals that till the rukka was prepared the seizure memo Ex.PW1/B and Form M-29 were already prepared. In these circumstances, there was no occasion that the FIR number be mentioned on Ex.PW1/B and Form M-29. However both these documents bear FIR number. This reveals that either these documents were prepared after the registration of the FIR and consequently the contents of rukka are incorrect or the FIR State Vs Shail Kumari and Mishri Lal; CIS No.11097/19; FIR NO. 19/2019; PS.Subzi Mandi, U/s. 33 Delhi Excise Act, 4/10 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.04.04 16:35:55 +0530 CNR no. DL CT-020170622019 number were inserted in these documents later on. In either of the cases a good amount of doubt has been created upon the authenticity of the documents prepared during the investigation and recovery proceedings and for that reason the accused is entitled to have benefit of the same. The core documents of the present case i.e seizure memo comes under cloud of doubt.
8) It is mentioned in the rukka and the FIR that the seal after use was handed over to Constable Vikram Singh only. It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh vs. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property." The police official having the possession of the seal was posted in the same police station in the malkhana of which the case property was lying. There was ample opportunity for State Vs Shail Kumari and Mishri Lal; CIS No.11097/19; FIR NO. 19/2019; PS.Subzi Mandi, U/s. 33 Delhi Excise Act, 5/10 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.04 16:36:01 +0530 CNR no. DL CT-020170622019 tempering with case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
9) The case property was sent to the FSL on 19.02.2019 while the case property was recovered on 24.01.2019. There is no explanation as to why the case property kept in the malkhana for around 3 weeks when all the paper formalities were already completed on 24.01.2019 only. The seal was with the raiding party members and the case property was lying in the malkhana for the long time. There is no explanation as to why the prompt efforts were not made for sending the exhibits to the FSL without delay. The lapse on the part of the investigating officer by keeping the case property in the malkhana for long without any reason and not sending the exhibits to the FSL certainly leads to cloud of doubt in the entire proceedings.
10) Ld Counsel for the accused person further vehemently argued that the present case is a false one and is the example of high handedness of the police. He argued that the accused persons have been illegally framed in the present case and it is evident from the fact that the accused Mishri Lal allegedly apprehended from the public place and but there is no public witness to the proceedings. He argued that police officials posted at police station Subzi Mandi conducted the entire proceedings and same is not trustworthy. Ld APP for the State argued that the public persons did not join the proceedings despite requests.
11) The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly State Vs Shail Kumari and Mishri Lal; CIS No.11097/19; FIR NO. 19/2019; PS.Subzi Mandi, U/s. 33 Delhi Excise Act, 6/10 KAPIL Digitally signed by KAPIL KUMAR KUMAR Date: 2022.04.04 16:36:07 +0530 CNR no. DL CT-020170622019 doubtful. It is evident from the testimony of PW1 and PW3 that accused was apprehended along with the alleged illicit liquor at public place but there is no public witness in the present case. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is State Vs Shail Kumari and Mishri Lal; CIS No.11097/19; FIR NO. 19/2019; PS.Subzi Mandi, U/s. 33 Delhi Excise Act, 7/10 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.04.04 16:36:13 +0530 CNR no. DL CT-020170622019 an offence under the IPC".
12) The names of the persons to whom the request was made to join the investigation has nowhere mentioned. No written notice has been placed on record which must be given to the public persons. Merely deposing that public person refused to join the investigation is of no avail. Considering the aforesaid observations made by the Higher Courts, the omissions/failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
13) Being guided by above-said case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
14) The case of the prosecution against the accused Shail Kumari is bound to fail. Only PW2 deposed against her by stating that she is registered owner of the TSR and she let out the TSR to the accused Mishri Lal. There is nothing in the testimony of PW2 revealing the conscious possession of the accused Shail Kumari. The rationale State Vs Shail Kumari and Mishri Lal; CIS No.11097/19; FIR NO. 19/2019; PS.Subzi Mandi, U/s. 33 Delhi Excise Act, 8/10 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.04.04 16:36:19 +0530 CNR no. DL CT-020170622019 behind section 52 implies the conscious possession. Accordingly the conscious possession of the accused Shail Kumari not proved and even the recovery of illicit liquor from the possession of accused Mishri Lal is doubtful.
15) In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution ..........................."Digitally signed
KAPIL by KAPIL
KUMAR
KUMAR Date: 2022.04.04
16:36:24 +0530
State Vs Shail Kumari and Mishri Lal; CIS No.11097/19; FIR NO. 19/2019; PS.Subzi Mandi, U/s. 33 Delhi Excise Act, 9/10
CNR no. DL CT-020170622019
16) The onus and duty to prove the case against the accused is
upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
17) In view of the aforesaid discussion, in my opinion accused persons have been able to raise a probable defence creating doubt about the existence or veracity of the prosecution version which renders the same untrustworthy. Accordingly, accused persons are acquitted of the charge leveled against them. Case property be confiscated to the State. Same be destroyed. Bail bonds U/s 437 A Cr.PC furnished. File be consigned to Record Room after due compliance.
Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2022.04.04
16:36:30
+0530
Announced in the open court (KAPIL KUMAR)
on 04.04.2022 Metropolitan Magistrate-07
Central District, Tis Hazari Courts/Delhi State Vs Shail Kumari and Mishri Lal; CIS No.11097/19; FIR NO. 19/2019; PS.Subzi Mandi, U/s. 33 Delhi Excise Act, 10/10