Delhi District Court
State vs Sarvesh on 7 October, 2024
IN THE COURT OF SH. AJAY NARWAL, JMFC-02, NORTH DISTRICT,
ROHINI COURTS, DELHI
DLNT02-000744-2012
State Vs. Sarvesh
Case No 5284344/2016
FIR No. 136/2010
PS: S.P. Badli
U/s : 33 Delhi Excise Act
JUDGMENT
ID number of the case : DLNT02-000744-2012
Date of commission of offence : 23.05.2010
Date of institution of the case : 09.02.2012
Name of the complainant : Constable Rajesh Kumar
Name of accused and address : Sarvesh S/o Chander Shekhar, r/o Jhuggi No.
43/432, JJ Colony, Raja Vihar, Delhi.
Offence complained of or proved : U/s 61 of Punjab Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of judgment : 07.10.2024
State V. Sarvesh FIR No. 136/2010 Page No. 1 of 10
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Briefly stated, case of the prosecution is that on 23.05.2010 at about 11:20 a.m, near AG-2, SGT Nagar, Delhi within the jurisdiction of PS, SP Badli, Delhi, accused was found in possession of illicit liquor as per the seizure memo Mark-X without any permit or license. Accordingly, he stands charged for offence U/s 33 Delhi Excise Act.
2. Upon completion of investigation charge sheet u/s 173 Cr.P.C. was filed and the accused was consequently summoned. Charge u/s 33 Delhi Excise Act was framed against the accused to which he pleaded not guilty and claimed trial. 3 In order to substantiate the allegations, prosecution examined 04 witnesses. HC Azad Prakash was examined as PW-1. He got the FIR registered in the present case. ASI Parmod Kumar was examined as PW-2. He was posted as MHC(M) and HC Raj Kumar gave him six kattas of illicit liquor, M-29 Form, 06 quarter of sample sealed bottles. SI Randhir Singh was examined as PW-3. He reached the spot and joined the investigation. He also witnessed the seizure of the case property. He also identified the accused in Court and his statement was recorded by the IO. SI Raj Kumar was examined as PW-4. He reached the spot after receiving the information about the recovery. He got the FIR registered and carried out entire proceedings (i.e. recording of statement of State V. Sarvesh FIR No. 136/2010 Page No. 2 of 10 prosecution witnesses, preparing seizure memo, site plan, sealing the case property, recording the disclosure statement of the accused and also arrested the accused.
4. Prosecution evidence was closed vide order dated 07.10.2024. Statement of accused was recorded u/s 313 r/w 281 Cr.PC on 07.10.2024, wherein all the incriminating evidence was put to the accused, to which he refused the allegations and stated that he has been falsely implicated in this case and recovery of case property has been falsely implanted upon him. Further, the accused did not wish to lead defence evidence.
5. Final Arguments heard. Case file perused.
6. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of illicit alcohol without permit and submitted that accused be convicted of the offence charged.
7. Per contra, it is argued by the Ld. Counsel for the accused that accused is completely innocent and recovery of case property has been falsely planted upon him. It is further submitted by Ld. Counsel that non joinder of public State V. Sarvesh FIR No. 136/2010 Page No. 3 of 10 witness despite availability casts shadow of doubt on prosecution story. It is further argued by Ld. Counsel for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
8. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution.
9. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
10. 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.
11. 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) State V. Sarvesh FIR No. 136/2010 Page No. 4 of 10 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.
12. From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
13. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that State V. Sarvesh FIR No. 136/2010 Page No. 5 of 10 sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincereefforts have been made, particularly when we find that shops were open and one or two shop keepers 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 an offence under the IPC."
14. In the instant case, the recovery was effected from the accused at the busy spot. Hence, it could not be said that the public witnesses were not present at the spot at the time of recovery. In fact, as per the testimonies of prosecution witnesses, public persons were present at the spot at the time of recovery. However, surprisingly, the Prosecution Witnesses did not explain the reason as to why public witnesses were not examined during the course of investigation. They only stated that the public persons refused to join the investigation. This reason given by the PWs is neither sufficient nor plausible. Neither the details of those public persons were brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. If the public persons were really present at the spot, then the police officials should State V. Sarvesh FIR No. 136/2010 Page No. 6 of 10 have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them. Therefore, it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution and all these facts makes the alleged recovery very doubtful.
15. Further, the prosecution did not even bring on record necessary DD entries to prove departure/arrival of the police officials from/at the police station. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 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.
16. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the State V. Sarvesh FIR No. 136/2010 Page No. 7 of 10 concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
17. In present case, the seal was neither handed over to an independent witness. No explanation has come on record as to why seal handing over memo was not made or seal was not handed over to an independent witness. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility State V. Sarvesh FIR No. 136/2010 Page No. 8 of 10 of seal, contraband and the samples being tampered with cannot be ruled out".
18. Therefore, in view of the above, this creates further doubts in the case of prosecution as to whether the case property allegedly recovered from the accused has not been tampered with.
19. Perusal of record shows that prosecution witnesses have deposed that FIR was registered after preparation of seizure memo, accordingly, FIR number could not have surfaced on that seizure memo, however, the seizure memo bears the FIR number. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document 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 the recovery of the case property in the manner alleged. That being so, benefit arising out of such a situation must necessarily go to the accused. Reference be made to the judgment of Hon'ble Delhi High Court in the case of Giri Raj v. State, 83 (2000) DLT 201.
20. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution's case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the State V. Sarvesh FIR No. 136/2010 Page No. 9 of 10 links, the benefit of doubt has to be given to the accused. As such the accused deserves acquittal in the present case.
21. Therefore, in view of the above discussions and findings, I find that the prosecution has failed to prove the guilt of the accused in the present case beyond reasonable doubt.
22. Hence, accused Sarvesh is acquitted for the offence u/s 61 of Punjab Excise Act.
AJAY Digitally signed by
AJAY NARWAL
NARWAL Date: 2024.10.07
17:26:33 +0530
Dictated directly into the computer (AJAY NARWAL)
and announced in the open Court, JMFC-02/North/Rohini
On 07th October, 2024. Delhi/07.10.2024
This judgment consists of 10 pages and all bear my signature. Digitally signed
AJAY by AJAY NARWAL NARWAL Date: 2024.10.07 17:26:29 +0530 (AJAY NARWAL) JMFC-02/North/Rohini Delhi/07.10.2024 State V. Sarvesh FIR No. 136/2010 Page No. 10 of 10