Delhi District Court
State vs Saroj on 11 October, 2023
IN THE COURT OF MS. SANYA DALAL
METROPOLITAN MAGISTRATE-I (N/W)
ROHINI COURTS, DELHI
New Case No. : R-2296/16
Title of the case: : State vs. SAROJ
FIR No. : 131/19 PS Sultanpuri
Date of institution : 24.04.2019
Date of reserving Judgment : 11.10.2023
Date of pronouncement : 11.10.2023
JUDGMENT :
(a) The date of commission 29.01.2019
(b)The name of complainant Ct. Dinesh
(c) The name of accused SAROJ
D/o late Sh. Dharmu
R/o C-8/26, Sultanpuri, Delhi.
(d) The offence complained of 33/38 Delhi Excise Act
(e)The plea of the accused Pleaded not guilty
(f)The final order Acquittal
(g)The date of such order 11.10.2023
JUDGMENT
1. In the present case, facts in brief can be stated as that on 29.01.2019 at about 6.00 PM, in front of H. No. C-8/26, Sultanpuri, Delhi, accused was found in possession of one white plastic katta containing 90 plastic quarter bottles of Asli Santara Masaldedar Desi Sharab without any valid permit or license and in contravention of provisions of Delhi Excise Act without any permit or license, hence, she was prosecuted for the said allegations qua the offence u/s 33/38 of The Delhi Excise Act, 2009.
FIR No. 131/19 State vs. Saroj 1 / 10
2. Upon completion of investigation, chargesheet was filed u/s 33/38 of The Delhi Excise Act, 2009, against the accused person.
3. The cognizance of the offence u/s 33/38 of Delhi Excise Act was taken on 24.04.2019 and the accused was summoned. Upon appearance of the accused, the compliance of Section 207 CrPC was carried out.
4. The material on record prima facie disclosed the commission of offences u/s 33/38 of The Delhi Excise Act, 2009. The charge was accordingly framed against the accused on 10.10.2019 to which he pleaded not guilty and claimed trial. Hence, this Court conducted trial.
5. For proving its case, prosecution examined 04 witnesses.
6. PW1 Ct. Dinesh Singh deposed that on 29.01.2019 he was on beat duty in the area of C-Block, Sultanpuri Delhi and when he reached at BC-Block, C-8 Block where he saw the accused having one white plastic katta and on checking the same, illicit liquor was found. He deposed that he informed about the same in the PS and after some time IO/HC Amit came at the spot and took the custody of accused, opened the katta and found total 90 quarter bottles of Asli Santara Masaledar Deshi Sharab. He further deposed that IO recorded his statement which is Ex. PW-1/A and prepared the rukka and got the FIR registered. He deposed that before that IO prepared the pullanda of the liquor, sealed with the seal of "AD". He deposed that IO prepared the seizure memo Ex. PW-1/B and prepared the site plan Ex. PW-1/F. He deposed that IO arrested the accused and conducted his personal search vide memos Ex. PW-1/C and Ex. PW-1/D and recorded disclosure statement of accused which was Ex. PW-1/E. He correctly identified the case property which was Ex. P-
1. During cross-examination, he deposed that he did not remember about the departure entry from PS to the spot. He went to PS for registration of FIR at about 7.45 PM and at about 8.00 PM, he came back to the spot. In about 10 minutes from the registration of FIR, FIR No. 131/19 State vs. Saroj 2 / 10 IO prepared the seizure memo and filled Form M-29. He deposed that IO prepared the memo of seal.
7. PW2 HC Amit and PW-3 W/HC Krishna deposed that on 29.01.2019 after receiving DD no. 38A they went to the spot where they met with Ct. Dinesh who handed the custody of accused along with recovered illicit liquor to them. Their testimony is exactly same as that of PW1. PW-2 further deposed that he prepared the tehrir Ex. PW-2/A and on 30.01.2019 he directed Ct. Ravinder to deposit the sample of the case property in Excise Lab. During the testimony of PW-2, the accused along with case property Ex. P-1 were correctly identified During cross-examination of PW2 he deposed that he received DD no. 38A at about 6.15 PM. He admitted that the spot was a thickly populated place and many persons were available there. He deposed that he asked some persons of the locality to join the investigation but none of them were ready. He prepared tehrir at the spot and set to PS for registration of FIR. He denied the suggestion that no recovery took place in the possession of the accused.
During cross-examination of PW3 she deposed that IO received DD no. 38A at about 6.15 PM. She admitted that the spot was a thickly populated place and many persons were available there. She deposed that IO asked some persons of the locality to join the investigation but none of them were ready. IO prepared tehrir at the spot and set to PS for registration of FIR. She denied the suggestion that no recovery took place from the possession of the accused.
8. PW4 HC Rakesh deposed that on 29.01.2019 he was posted as MHCM and IO deposited case property and he made the entry of the same in register no. 19 vide entry no. 4969/2019 and the photocopy of the same was Ex. PW-4/A (OSR). He further deposed that on 31.01.2019 he handed over the sample to Ct. Ravinder vide RC no. 58/21/19 and the copy of the same is Ex. PW-4/B (OSR). On 03.04.2019, he received the result of sample and entered the same in register no. 19) while on 01.03.2019, the case property of the present case was destroyed and the copy of the order was marked as A. FIR No. 131/19 State vs. Saroj 3 / 10 During cross-examination, he admitted that in register no. 19, there was no entry regarding handing over the case property for destruction. He voluntarily deposed that the entry of the same was made in the Roznamcha. He admitted that there was no receiving in column no. 7 of Register No. 19. He admitted that no illicit liquor was confiscated in his presence.
9. Vide separate statement of the accused u/s 294 Cr.PC r/w 313 Cr.PC she admitted the genuineness of DD No. 38A, DD No. 44B dated 29.01.2019 and chemical examiner report Ex. PX5.
10. Upon completion of prosecution evidence, the accused was examined in accordance with Section 313 Cr.P.C. The entire incriminating evidence was put to her and she denied the same and stated to be have been falsely implicated. The accused person opted not to lead DE.
11. Final arguments were heard.
12. Sh.Pankaj Yadav, Ld. APP for the State argued that on the basis of the entire evidence brought on record, the guilt of the accused has been established beyond reasonable doubt accordingly, the accused shall be convicted. He further argued that from the entire evidence led by the prosecution, it is clearly established that illicit liquor without any permit/license was recovered from the possession of the accused person.
13. On the other hand, Sh. Mahesh Ld. Counsel for the accused argued that despite public witness being present at the spot at the relevant point of time, they were not cited as PWs. He further argued that there are material contradictions in the testimony of complainant and the IO which reveals that this is a false case lodged against the accused and argued that the accused is innocent who has been falsely implicated by the prosecution.
FIR No. 131/19 State vs. Saroj 4 / 10 Applicable Law and its application to present facts
14. Section 33 of The Delhi Excise Act, 2009 provides penalty for unlawful import, export, transport, manufacture, possession, sale etc. of any intoxicant or liquor. Section 38 of the Delhi Excise Act, 2009 provides penalty for possession of unlawfully imported liquor without paying the prescribed duty for the same.
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act (a) manufactures, imports, exports, transports or removes any intoxicant; (b) constructs or works any manufactory or warehouse; (c) bottles any liquor for purposes of sale; (d) uses, keeps or has in his possession any material, still, untensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari; (e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor; (f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees."
15. Before a person can be held liable for commission of any offence, the prosecution has to establish his guilt beyond reasonable doubt.
16. In the present case, the essential ingredients to establish the liability of the accused person under Section 33/38 of The Delhi Excise Act, 2009 is that the illicit liquor was recovered from the possession of the accused.
17. I shall now delve into the appraisal of material available on record.
18. Possibility of tampering: The testimony of PW1 reflect that the case property i.e. one quarter bottle and the remaining case property was sealed with the seal of AD however, there is no handing over memo of the seal to suggest that the seal used for the FIR No. 131/19 State vs. Saroj 5 / 10 seizure of the case property remained in possession of any independent person. PW1 correctly identified the case property and same was Ex. P-1 and at the time of production of case property, the same was bearing the seal of RK. There is no document on record which could suggest that seal of RK belongs to whom and the same was appended at what point of time. Also, only one sample was drawn out of the case property, the same clearly reflects that in case only one sample was drawn out of the alleged recovered illicit liquor then what was sent for the examination to the chemical examiner.
19. Proof regarding the complainant being on beat duty:
It would be pertinent to note that there is no proof/material on record to prove that PW1 was on beat duty on the relevant point of time i.e. on 29.01.2019. Further, there is no departure entry to the said effect.
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.
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 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 by Hon'ble High Court of Delhi in Rattan Lal Vs. State 1987 (2) Crimes 29, 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."
FIR No. 131/19 State vs. Saroj 6 / 10 In the instant case this provision has not been complied by the concerned Police Witness/PW2 The relevant entries regarding the arrival and departure of the police officials have not been proved.
20. Non Joining of any independent public witnesses: As per the version of PW1, PW2 and PW3 the public persons were asked to join the investigation but none of them agreed and went away without disclosing their names and addresses. Further the IO has not produced any notice u/s 160 of the Cr.PC which ought to have been served upon those available independent witnesses who allegedly refused to join the investigation.
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 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 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."
While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
FIR No. 131/19 State vs. Saroj 7 / 10 "In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinize their testimonies more closely and should preferably be corroborated.
21. No handing over memo of the seal was prepared.
In the instant case no handing over memo of the seal was prepared which can suggest that case property remained intact and there is no tampering with the same.
FIR No. 131/19 State vs. Saroj 8 / 10 As per evidence available on record, the seal after use was not given to any independent public person. Moreover, there is no seal handing over memo on record. Further, there is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station or not. In such case, tampering with case property can also not be ruled out. As a result, the benefit of doubt has to be given to the accused. Reliance is placed upon the decision in Safiullah v. State, (1993) 49 DLT 193, where the Hon'ble High Court of Delhi observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering 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 tempered with. ...... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
22. No photography of case property was carried out by the investigating agency.
Also, the testimony of all the prosecution witnesses is completely silent upon the aspect of the photography of the case property. Accordingly, no photographs of the case property were taken at the time of recovery. In Manjeet Singh v State (2014) 214 DLT 646 Hon'ble High Court of Delhi has observed that detailed punchnama containing the inventory should be prepared and photographs of the entire lot should be taken. It was further observed in Para 75 that the sample alongwith the photographs and punchnama would be sufficient evidence during trial. In the present case, no punchnama was produced. No photographs of the entire lot were produce. In this regard though Section 60 of the Excise Act provides that non production of the case property does not effect the conviction, however, at the same time the provisions also laid down those samples and the photographs of the confiscated property are to be preserved to meet evidentiary requirements. Without production of any photographs and sample bottle of the case property, the standard cannot be said to be met beyond reasonable doubt.
23. In view of the above, it can be safely concluded that prosecution has miserably failed to establish beyond reasonable doubt the case against the accused. Hence, FIR No. 131/19 State vs. Saroj 9 / 10 the benefit of doubt be given to the accused. Since the recovery of illicit liquor from the possession of accused could not be established, accused namely Saroj stands acquitted of the offences under Section 33/38 The Delhi Excise Act, 2009.
24. Bail bonds filed by the accused in compliance of section 437A Cr.PC shall remain in force for the period of six months from today.
File be consigned to record room after due compliance.
Announced, dictated and signed in the open Court on 11th day of October, 2023.
(SANYA DALAL) METROPOLITAN MAGISTRATE-1 North West ROHINI / DELHI 11.10.2023.
FIR No. 131/19 State vs. Saroj 10 / 10