Delhi District Court
State vs Beena on 1 May, 2024
IN THE COURT OF MS. DEEKSHA SETHI, MM-03, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-071867-2022 ID. No. : 14995/2022 FIR No. : 861/2021 U/s : 33 Delhi Excise Act P.S. : Bindapur State v/s Beena a) Name & address of the : HC Rajpal complainant No. 2406/DW PS Bindapur b) Name & address of : Beena w/o Suresh accused r/o Hno. B-159, Gali no. 13, Nanhe Park, Uttam Nagar, New Delhi. c) Date of Commission of : 25.09.2021 offence d) Offence complained of : 33 Delhi Excise Act e) Plea of the accused : Pleaded not guilty. f) Ld. APP for the State : Sh. Manish Kaushik g) Final Order : Acquitted. h) Date of Institution : 02.12.2022 i) Judgment Pronounced on : 01.05.2024 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 25.09.2021, at about 12:40 PM, accused Beena was found to be in possession of 213 quarter bottles of illicit liquor in front of Hno. B-159, Gali no. 13, Nanhe Park, Uttam Nagar, New Delhi. Complainant HC Rajpal reported the aforesaid incident to duty officer at PS Bindapur. An FIR bearing no. 861/2021 u/s 33 Delhi Excise Act was registered at PS State v/s Beena Page 1 of 16 Cr. Case No. 14995/2022 Bindapur. Investigation of the case was handed over to Investigating Officer ASI Raj Kumar and thereafter to ASI Jagbir Singh.
Proceedings before the Court
2. On completion of investigation, a charge-sheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Beena. After taking cognizance of the offence, the accused was summoned to face trial.
3. On her appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against her, to which she had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined the following witnesses:
(i) PW-1 ASI Rajpal has deposed that he was posted at PS Bindapur as a head constable. On 25.09.2021, he alongwith Ct. J.R.Meena were on duty at beat no. 7.
At about 12:40 PM, they reached at House no.B- 159, Gali no.13, Nanhe Park and saw that one lady namely Beena was picking a white plastic katta from vacated plot situated in front of aforementioned house and two other white plastic katta were also lying near by her. Upon checking, the white plastic katta, the same were found to be containing illicit State v/s Beena Page 2 of 16 Cr. Case No. 14995/2022 liquor. He shared the said information with duty officer of PS Bindapur. ASI Raj Kumar alongwith W/Ct Anita reached at the spot and he handed over the custody of the apprehended lady alongwith recovered plastic katta of illicit liquor to them. IO asked three to four public persons to join the investigation but none agreed. IO checked the plastic kattas and upon counting, he found it to be containing 71 glass quarter bottles of Race 7 Motto Liquor (180 ml each) for sale in Haryana only, and IO recovered total 213 glass quarter bottles of Race 7 Motto Liquor (180 ml each) for sale in Haryana only. IO took one quarter bottle as sample and put back the remaining quarter bottles in the respective plastic katta and tied the opening of plastic katta and sample with a white cloth and sealed it with the seal of RK and marked SL No.1 to 3 to plastic katta and SL No.1A to 3A to samples. IO filled M-29 form at the spot and handed over seal after its use to Ct. J.R.Meena. IO seized the samples as well as remaining case property vide seizure memo Ex.PW1/A. IO recorded his statement (ExPW1/B). IO prepared tehrir and got the FIR registered through him. IO prepared site plan of place of incident at his instance. After interrogation, IO recorded disclosure statement of accused (Ex. PW1/C). IO served notice u/s 41 A of CrPC to accused Beena. Case property alongwith form M-29 State v/s Beena Page 3 of 16 Cr. Case No. 14995/2022 and copy of seizure memo and other relevant documents was deposited at malkhana of PS Bindapur. Witness identified the accused in court. Witness also identified the case property and same was exhibited as ExP-1, ExP-2 and ExP-3. This witness was thoroughly cross examined by Ld. Defence counsel.
(ii) PW-2 HC J.R.Meena has deposed that he was posted at PS Bindapur as a head constable. On 25.09.2021, he alongwith HC Rajpal were on duty at beat no. 7. At about 12:40 PM, they reached at House no.B- 159, Gali no.13, Nanhe Park, while on patrolling duty and saw that one lady namely Beena was picking a white plastic katta from vacated plot situated in front of aforementioned house and two other white plastic katta were also lying near by her. Upon checking, the white plastic katta the same were found to be containing illicit liquor. HC Rajpal shared the said information with the duty officer of PS Bindapur. ASI Raj Kumar alongwith W/Ct Anita reached at the spot and they handed over the custody of the apprehended lady alongwith recovered plastic katta of illicit liquor to them. IO asked three to four public persons to join the investigation but none agreed. IO checked the plastic katta and upon counting, he found it to be containing 71 glass quarter bottles of Race 7 Motto Liquor (180 ml each) for sale in Haryana only, and IO recovered State v/s Beena Page 4 of 16 Cr. Case No. 14995/2022 total 213 glass quarter bottles of Race 7 Motto Liquor (180 ml each) for sale in Haryana only. IO took one quarter bottle as sample and put back remaining quarter bottles in the respective plastic katta and tied with opening of plastic katta and sample with white cloth and sealed it with the seal of RK and marked SL No.1 to 3 to plastic katta and SL No.1A to 3A to samples. IO filled M-29 form at the spot and handed over seal after its use to him. IO seized the samples as well as remaining case property vide seizure memo Ex.PW1/A. IO recorded statement of HC Rajpal and got the FIR registered through him. IO prepared site plan of place of incident. After interrogation, IO recorded disclosure statement of accused (Ex. PW1/C). IO served notice u/s 41 A of CrPC to accused Beena. They shifted the case property to the PS Bindapur and deposited alongwith form M-29 and copy of seizure memo and other relevant documents at malkhana of PS Bindapur. Witness identified the accused in court. Witness also identified the case property and same was exhibited as ExP-1, ExP-2 and ExP-3. This witness was thoroughly cross examined by Ld. Defence counsel.
(iii) PW-3 W/Ct. Anita has deposed that she was posted at PS Bindapur as a constable (DHG). On 25.09.2021, upon receipt of DD no. 73A, she alongwith IO ASI Raj Kumar reached at the spot i.e. State v/s Beena Page 5 of 16 Cr. Case No. 14995/2022 Hno. B-159, Street no. 13, Nanhe Park, Uttam Nagar and met HC Rajpal and Ct. J.R.Meena who handed over the custody of apprehended lady namely Beena alongwith three white plastic katta containing of illicit liquor to them. IO/ASI Raj Kumar asked three to four public persons to join the investigation but none agreed. IO checked the recovered plastic katta of illicit liquor recovered from the possession of apprehended lady Beena and upon counting, IO found all the aforementioned katta were containing of 71 quarter bottles each of Race 7 Metro liquor (180 ml each) for sale in Haryana only. IO took one quarter bottle from each plastic katta as sample and put back the remaining quarter bottles in the respective plastic kattas. IO tied the opening of plastic katta as well as opening of sample with piece of white cloth and sealed it with the seal of RK. IO filled M-29 form at the spot. IO marked 1A to 3A to samples and 1 to 3 to plastic katta to the remaining recovered illicit liquor. IO handed over seal after its use to HC Rajpal. IO seized the recovered illicit liquor from the possession of accused vide memo Ex PW1/A. IO recorded statement of HC Rajpal and prepared tehrir and got the FIR registered through HC Rajpal. IO prepared site plan of place of incident at the instance of HC Rajpal. After interrogation, IO recorded disclosure statement of accused Beena (Ex. PW1/C).
State v/s Beena Page 6 of 16 Cr. Case No. 14995/2022IO served notice u/s 41 A CrPC to accused. Case property alongwith form M-29 and copy of seizure memo and other relevant documents was shifted at malkhana of PS Bindapur.Witness identified the accused in court. Witness also identified the case property and same was exhibited as ExP-1, ExP-2 and ExP-3. This witness was thoroughly cross examined by Ld. Defence counsel.
(iv) PW-4 ASI Raj Kumar has deposed that on 25.09.2021, he was posted at PS Bindapur as ASI. Upon the receipt of DD No. 73-A about the illicit liquor, he alongwith W/Ct. Anita reached at the spot i.e. H. No. B-159, Gali No. 13, Nanhe Park, Uttam Nagar and met HC Rajpal and Ct. JR. Meena who handed over the custody of apprehended lady namely Beena, W/o Suresh alongwith the recovered liquor to them. He recorded statement of HC Rajpal (ExPW1/B). He asked four to five public persons to join the investigation but none agreed. He checked three plastic katta of recovered illicit liquor and found it to be containing 71 quarter bottles each of Race-7 Metro liquor (180 ml each) for sale in Haryana only. He took one quarter bottle each as a sample from each recovered plastic Katta containing illicit liquor and put back remaining quarter bottles in the respective plastic katta. He tied the opening of plastic katta and samples with a white cloth and sealed it with the seal of RK and marked SL No.1 to State v/s Beena Page 7 of 16 Cr. Case No. 14995/2022 3 to plastic katta and SL No.1A to 3A to samples vide memo ExPW1/A. He handed over the seal after its use to HC Rajpal. He filled M-29 form at the spot (ExPW4/A). He prepared tehrir (ExPW4/B) and got the FIR registered through HC Rajpal. He prepared site plan at the instance of complainant (Ex. PW4/C). After interrogation, he recorded disclosure statement of accused (Ex. PW1/C). He served notice u/s 41-A Cr.P.C to the accused (Ex. PW4/D) and released the accused from the spot vide Pabandinama Ex. PW4/E. Case property alongwith form M-29 was deposited at malkhana of PS Bindapur. Witness identified the accused in court. Witness also identified the case property and same was exhibited as ExP-1, ExP-2 and ExP-3. This witness was cross examined by Ld. Defence counsel.
(v) PW-5 ASI Jagbir Singh has deposed that he was posted at PS Bindapur as ASI. The further investigation of the present case was marked to him. He placed on record the result of excise laboratory after receiving from MHCR of PS Bindapur. After completion of investigation, he prepared charge- sheet of the present case and filed it before the court. This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
State v/s Beena Page 8 of 16 Cr. Case No. 14995/2022(vi) PW-6 ASI Jagdish has deposed that on 25.09.2021, he was posted at PS Bindapur as MHC(M) CP. On the directions of IO ASI Raj Kumar, he collected sealed case property and sealed samples with the seal of RK alongwith copy of seizure memo and form M-29 and other relevant documents. Same were deposited at Malkhana of PS Bindapur by him vide mud No. 3351/2021 (Ex P-1). On 13.11.2021, he handed over the sealed exhibits alongwith relevant documents vide RC No. 202/21/21 (ExP-2) to HC Surender for depositing the same at Excise Office ITO for result analysis. Accordingly, HC Surender went to Excise office and deposited the same. He handed over him the receipt of depositing on the same day. The witness submitted that the exhibits were not tampered with during the time they were in his possession. This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
5. Vide separate statement of the accused u/s 294 CrPC, she had admitted the genuineness of the FIR bearing no. 861/2021 without contents, DD No. 73A and DD no. 116A both dated 25.09.2021 and result analysis of Excise Control Laboratory. The above-said documents were exhibited as Ex. A-1, Ex. A-2, Ex. A-3 and Ex. A-4 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.
State v/s Beena Page 9 of 16 Cr. Case No. 14995/20226. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC read-with section 281 CrPC was recorded wherein all the incriminating evidence appearing against the accused was put to her, which she had denied to be correct and submitted that she was innocent and falsely implicated. The accused chose not to lead any evidence in her defence.
7. It is argued by Sh. Manish Kaushik, Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of 213 quarter bottles of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and she be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, she be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court
10.It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of State v/s Beena Page 10 of 16 Cr. Case No. 14995/2022 innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11.The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12.This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the examination of PW-1 ASI Rajpal (the complainant), PW-2 HC J.R.Meena, PW-3 W/Ct Anita and PW-4 ASI Raj Kumar (the IO) reveals that the IO had asked some public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
State v/s Beena Page 11 of 16 Cr. Case No. 14995/2022"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.'' (Emphasis supplied)
13.In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
14.Perusal of the record further reveals that there is a delay of about forty nine days in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
State v/s Beena Page 12 of 16 Cr. Case No. 14995/2022"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
15.In the instant case, alleged recovery was made on 25.09.2021 yet the samples were sent to the Excise Control Laboratory for examination on 13.11.2021, i.e., after about forty nine days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
16.Perusal of the tehrir Ex. PW4/B reveals that IO ASI Raj Kumar (PW4) had first prepared the seizure memo of the case property Ex. PW-1/A as well as Form M-29 Ex. PW4/A and after that rukka was prepared and sent to the police station for registration of FIR and thereafter, present FIR was registered. It is, therefore, clear that the seizure memo of the illicit liquor and Form M-29 were prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, registered after the preparation of the seizure memo of the case property Ex. PW-1/A as well as Form M-29 Ex. PW4/A, however, surprisingly, seizure memo of the case property Ex. PW- 1/A as well as Form M-29 Ex. PW4/A bear the FIR State v/s Beena Page 13 of 16 Cr. Case No. 14995/2022 number and it is thus, amazing since the number of the FIR could have come to his knowledge (PW-4) only after a copy of the FIR was brought to the spot. The number of FIR in no circumstances could have been mentioned by ASI Raj Kumar on seizure memo and Form M-29, which came into existence before registration of the FIR. However, as discussed above, seizure memo of the case property Ex. PW-1/A as well as Form M-29 Ex. PW4/A bear the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"... 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 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. 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."
(Emphasis supplied) State v/s Beena Page 14 of 16 Cr. Case No. 14995/2022
17.In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"... 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 State v. Om Prakash 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 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."
(Emphasis supplied)
18.Let this court now analyse the evidence appearing on record keeping in mind the above judgments of the Hon'ble High Court of Delhi. In the present case, PW-4 ASI Raj Kumar (the IO), who had prepared the documents in question, has categorically mentioned in the tehrir prepared by him that he had prepared the seizure memo State v/s Beena Page 15 of 16 Cr. Case No. 14995/2022 Ex. PW-1/A and Form M-29 Ex. PW-4/A before the tehrir was prepared. In such a scenario, it remains unexplained as to how the FIR No. and its details figure on the top of the documents Ex. PW-1/A and Ex. PW4/A. This creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said documents were prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.
19.Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a katta which contained illicit liquor was recovered from the possession of the accused. The accused Beena is, therefore, acquitted of the offence u/s 33 Delhi Excise Act.
20.This judgment contains 16 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
21.Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
Digitally signed by DEEKSHA DEEKSHA SETHI ANNOUNCED IN THE OPEN COURT SETHI Date:
2024.05.01 TODAY, i.e., ON 01.05.2024 16:06:30 +0530 Deeksha Sethi Metropolitan Magistrate-03 South-West District/New Delhi 01.05.2024 State v/s Beena Page 16 of 16 Cr. Case No. 14995/2022