Delhi District Court
Cr. Case/7887/2017 on 24 February, 2021
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IN THE COURT OF ANURAG THAKUR
MM-02: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
FIR No. 93/17
PS: Timarpur
U/s 33 Delhi Excise Act, 2009
State v. Umesh Kumar
Date of Institution of case: 18.07.2017
Date when Judgment reserved: 29.01.2021
Date on which Judgment pronounced: 24.02.2021
JUDGMENT
Unique ID no. of the case : 7887/17
Date of commission of offence : 27.02.2017
Name of complainant : HC Pradeep Kumar,
PIS No. 28981256
PS Timarpur, Delhi.
Name and address of accused : Umesh Kumar,
s/o Mumma Lal
r/o H.No. N-16/8, Sanjay
Basti, Timarpur, Delhi.
Offence complained of : 33 Delhi Excise Act
Plea of accused : Pleaded not guilty
Date of order : 24.02.2021
Final order : Acquitted
BRIEF REASONS FOR DECISION
1. Accused Umesh Kumar had been sent to face trial u/s 33 of Delhi Excise Act, 2009 on the allegations that on 27.02.2017 at about 05:40 p.m near Sanjay Basti Bus Stand, main road, Timarpur, Delhi within the jurisdiction of PS Timarpur, he was found in possession of two multi coloured bags, one containing 96 quarter bottles of Impact Grain Whiskey for sale in Haryana only and other containing 82 quarter bottles of Asli Santra Masaledar country made liquor without any licence or permit to possess the same, punishable u/s 33 of Delhi Excise Act. On the basis of the above allegations, the present FIR No. 93/17 was registered at PS Timarpur.
Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.02.24 19:07:19 +05'30' FIR no. 93/17 State v. Umesh Kumar PS Timarpur 2 of 12
2. After investigation, charge sheet was filed against the accused. Cogizance of offence u/s 33 Delhi Excise Act, 2009 was taken and accused was summoned. Upon appearance, copy of charge sheet was supplied to accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.). Charge u/s 33 Delhi Excise Act, 2009 was framed against the accused on 20.12.2018 to which he pleaded not guilty and claimed trial.
3. The prosecution was given opportunity to prove the accusation against the accused. The prosecution examined four witnesses. PW-1 HC Pradeep Kumar had deposed that on 27.02.2017 he was posted at PS Timar Pur as Head Constable and on that day he alongwith Ct. Vinod were performing emergency duty and his duty hours were from 08:00 AM to 08:00 PM and on that day after attending call of DD No. 41A PCR he alongwith Ct. Vinod were returning to PS and on the way when he reached near Sanjay Basti Timar Pur Bus Stand at about 05:40 PM, he saw one person carrying two bags in his both hands and upon seeing them, turned back and moved swiftly. They became suspicious and then he alongwith Ct. Vinod apprehended him. From the bag carried by the said person the smell of liquor was coming. Then he checked the said bag. In the meantime ASI Rajesh Kumar and HC Satpal from Excise Department also reached at the spot, who also had the information regarding the said person carrying illicit liquor. On inquiry the said person revealed his name as Umesh Kumar. On checking one bag over which there was design of multi colour roses and from that bag, quarter bottles of Impact Grain Whiskey of illicit liquor for Sale in Haryana only, totalling 96 quarter bottles were recovered and from the other bag which was also having multi colour design quarter bottles of Asli Santra Masaledar Desi Sharab for Sale in Haryana only totalling 82 were found. He asked 4-5 public persons to join Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.02.24 19:07:45 +05'30' FIR no. 93/17 State v. Umesh Kumar PS Timarpur 3 of 12 investigation but none agreed and left the spot without disclosing their names and addresses and for that reason no notice was served upon them. Then IO took out one quarter bottle as sample from each bag and he gave serial No. 1 to bag having design of multi colour roses and serial No. 2 to other multi colour bag. Further he marked the sample quarter bottle of Impact grain whiskey as A1 and Asli Santra quarter bottle as A2. He prepared pullanda by tying the neck of quarter bottle with white colour cloth and sealed the same with the seal of AV. He seized the aforesaid case property vide seizure memo Ex. PW1/A bearing his signature at point X. He handed over the seal after its use to Ct. Vinod. He filled Form M-29 at the spot. Then he prepared tehrir and same was exhibited as Ex. PW1/B bearing his signature at point X and handed over the same to Ct. Vinod for registration of FIR. After registration of FIR Ct. Vinod returned to the spot alongwith IO HC Mukesh and copy of FIR & original rukka. Then he narrated the whole incident to IO HC Mukesh Kumar and handed over to him the accused alongwith aforesaid seized case property and case file. IO prepared site plan at his instance. IO recorded his supplementary statement. (Accused Umesh Kumar was correctly identified by the witness). He deposed that he could identify the case property. MHC(M) produced one order of confiscation under section 59 of Delhi Excise Act, 2009 dated 02.05.2019 issued by Assistant Commissioner Excise, GNCT of Delhi, whereby the case property in present case had been destroyed on that day and photographs of the case property i.e. illicit liquor before destruction. (The photographs were shown to the witness who identified the same as that of case property). The photographs alongwith the aforesaid order were exhibited as Ex. P1 (colly). During cross-examination by ld. Counsel for the accused, he had deposed that he had attended the DD entry no.41A at about 4.45 pm. He reached Sanjay Basti Timarpur at around 5.30 pm alongwith Ct. Vinod. He had not received information about the accused through secret informer. He apprehended the ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.02.24 19:08:05 +05'30' FIR no. 93/17 State v. Umesh Kumar PS Timarpur 4 of 12 accused on suspicion. He checked the bag of accused in the presence of public persons. Seizure memo of bag was signed by Ct. Vinod and accused. He did not know who gave information to the excise department about the presence of the accused. HC Mukesh arrested the accused but not in his presence. Pullinda was not signed by anybody except himself. No public persons signed the pullinda. Rukka was prepared at the spot by him and handed over to Ct. Vinod. Site plan was prepared at his instance by HC Mukesh. His statement was recorded at the spot by HC Mukesh. He denied the suggestion that all the writing work was done at the PS and the case property was planted upon the accused or that accused was falsely implicated in the present case.
4. PW-2 HC Mukesh Kumar had deposed that on 27.02.2017 he was posted at PS Timarpur as HC. On that day he was present at the PS and the duty officer handed over to him the FIR of the case for investigation. Thereafter, he along with Ct. Vinod reached at the spot i.e. near Sanjay Basti Bus stand, Timarpur, Delhi, where they met HC Pradeep, HC Satpal and ASI Rajesh. HC Pradeep handed over the accused to him along with seized case property with the seal of 'AV' with seizure memo without mentioning case details. (Accused Umesh Kumar was correctly identified by the witness in the court). He mentioned the FIR number on the documents handed over to him by HC Pradeep. Thereafter, he recorded the disclosure statement of accused exhibited as Ex. PW-2/A bearing his signature at point A. The accused disclosed that he purchased the illicit liquor from one person namely Rajan, r/o Haryana but he did not know his whereabouts. The accused was arrested and arrest memo of the same was exhibited as Ex. PW-2/B and his personal search was conducted, the corresponding memo was exhibited as Ex. PW-2/C both bearing his signature at point A. Thereafter, he prepared site plan at the instance of HC Pradeep which was exhibited as Ex. PW-2/D bearing his signature at point A. He ANURAG Digitally signed by ANURAG THAKUR THAKUR 19:08:36 +05'30' Date: 2021.02.24 FIR no. 93/17 State v. Umesh Kumar PS Timarpur 5 of 12 recorded the statement of HC Pradeep, HC Satpal and ASI Rajesh. Thereafter, they came back to PS along with accused and case property. The case property was deposited in the Malkhana. Thereafter, accused was medically examined and lodged in the police lockup. On the next day, accused was produced before the concerned Court and he was sent to JC. Thereafter, he deposited the sample of illicit liquor in Excise Lab. Thereafter, he prepared chargesheet and filed the same in the Court. At that stage, photographs available on judicial file were shown to the witness. (Witness correctly identified the same as that of case property). The photographs were already exhibited as Ex. P-1 (colly). During cross-examination by the ld. counsel for the accused he disclosed that he had made departure entry for going to spot from the police station, however, he did not remember the DD from which he departed from the PS. They left the PS at about 7:40 pm and reached at the spot within 2-3 minutes. Public persons were also present at the spot and he asked the public persons to join the investigation, however, none had agreed to join the same. He had not served any notice upon the public persons who refused to join the investigation. No public person joined the investigation in the present case. He arrested the accused at about 7:55 pm. He obtained the signature of Ct. Vinod on the arrest memo. Disclosure statement of accused was recorded in the presence of Ct. Vinod. Seizure memo was prepared by the first IO and it was handed over to him by HC Pradeep i.e. first IO. He had recorded the statements of HC Satpal and ASI Rajesh and HC Pradeep at the spot and of Ct. Vinod at the PS. He did not remember till what time they remained at the spot. He denied the suggestion that accused was falsely implicated in the present case and case property was falsely planted upon the accused. He further denied that nothing was recovered from the accused or that all the proceedings were done while sitting in the PS. Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.02.24 19:08:54 +05'30' FIR no. 93/17 State v. Umesh Kumar PS Timarpur 6 of 12
5. PW-3 Ct. Vinod testified that on 27.02.2017, he was posted at PS Timar Pur as Constable. On that day, he alongwith First IO/HC Pradeep were performing emergency duty and his duty hours were from 08:00 AM to 08:00 PM. On that day after attending call of DD No. 41A PCR Ex. PW-3/A, he alongwith HC Pradeep Kumar were returning to PS and on the way when they reached near Sanjay Basti Timar Pur Bus Stand, at about 05:40 PM, they saw one person carrying two bags in his both hands, who on looking at them, turned back and moved swiftly. They became suspicious and then he alongwith first IO/HC Pradeep apprehended him. From the bag carried by the said person the smell of liquor was coming. Then First IO/HC Pradeep checked the said bag. In the meantime ASI Rajesh Kumar and HC Satpal from Excise Department also reached at the spot, who also had the information regarding the said person carrying illicit liquor. On inquiry the said person revealed his name as Umesh Kumar. On checking one bag over which there was design of multi colour roses quarter bottles of Impact Grain Whiskey of illicit liquor for Sale in Haryana only totalling 96 were recovered and from the other bag which was also had multi colour design quarter bottles of Asli Santra Masaledar Desi Sharab for Sale in Haryana Only totalling 82 were found. First IO/HC Pradeep asked 4-5 public persons to join investigation but none agreed and left the spot without disclosing their names and addresses and for that reason no notice was served upon them. Then First IO/HC Pradeep took out one quarter bottle as sample from each bag and First IO/HC Pradeep gave serial No. 1 to bag having design of multi colour roses and gave serial No. 2 to other multi colour bag. Further First IO/HC Pradeep marked the sample quarter bottle of Impact grain whiskey as A1 and Asli Santra quarter bottle as A2. First IO/HC Pradeep prepared pullanda by tying the neck of quarter bottle with white colour cloth and sealed the same with the seal of AV. First IO/HC Pradeep seized the aforesaid case property and prepared seizure memo already exhibited Ex.
ANURAG Digitally signed by
ANURAG THAKUR
THAKUR 19:09:12 +05'30'
Date: 2021.02.24
FIR no. 93/17 State v. Umesh Kumar PS Timarpur
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PW1/A bearing his signature at point A. First IO/HC Pradeep handed over the seal after its use to him. First IO/HC Pradeep filled Form M-29 at the spot. The IO prepared the seizure memo of two bags carried by the accused which was Ex.PW-3/B bearing his signature at point A. Then First IO/HC Pradeep prepared tehrir and same was already Ex.PW1/B which was handed over to him for registration of FIR. After registration of FIR he returned to the spot alongwith Second IO/HC Mukesh and copy of FIR & original rukka was already with him. Then First IO/HC Pradeep narrated the whole incident to Second IO HC Mukesh Kumar and handed over to HC Mukesh the accused alongwith aforesaid seized case property and case file. Second IO HC Mukesh prepared site plan at the instance First IO/HC Pradeep. IO recorded his statement. He could identify the accused. (Accused Umesh Kumar present in the court on that day was correctly identified by the witness). At that stage, photographs available on judicial file were shown to the witness. (Witness correctly identified the same as that of case property). The photographs were already exhibited as Ex.P-1 (colly). During cross-examination by ld. counsel for the accused he revealed that he along with HC Pradeep were coming back after attending the DD No. 41-A regarding quarrel at about 5:25 pm. They reached at the spot within two minutes. Accused was apprehended at the spot. No notice was served upon the public persons who refused to join the investigation. ASI Rajesh and HC Satpal reached at the spot after 5 minutes. At the time of seizing the case property no public person joined the investigation. He voluntarily stated that IO had asked the public persons to join the proceedings but none agreed and left the spot without disclosing their name and addresses. His statement was recorded by the IO at the PS. He did not remember where the statement of ASI Rajesh and HC Satpal were recorded by the IO. He did not remember who had signed the seizure memo. He denied the suggestion that accused was falsely implicated in the present case and case Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.02.24 19:09:29 +05'30' FIR no. 93/17 State v. Umesh Kumar PS Timarpur 8 of 12 property was falsely planted upon him. He further denied that nothing was recovered from the accused and all the proceedings were done while sitting in the PS.
6. PW-4 ASI Satpal deposed that on 27.02.2017 he was posted as HC at Delhi Excise Department, Vikas Bhawan, ITO. On that day he along with ASI Rajesh Kumar on the information of secret informer reached at the spot i.e Sanjay Basti Timarpur regarding illicit liquor. At the same time, HC Pradeep along with his staff had apprehended one person carrying illicit liquor. The secret informer informed them that he was the same person regarding which he had given information of carrying illicit liquor in two polythene. On checking they found 96 quarter bottles of illicit liquor having label of impact Green Whisky and 82 quarter bottles of Asli Santra Masaledar Desi Sharab. Thereafter, HC Pradeep took out one sample each from both the polythene and kept the remaining liquor in both the polythene by sealing the same with the seal of AV. Seal after use was handed over to Ct. Vinod. Both the samples were given serial no. A1 and A2. Form M-29 was filled on the spot which was Ex.PW4/A. Thereafter IO seized the illicit liquor along with samples in his presence with the seal of AV vide seizure memo already Ex.PW1/A. IO also seized both the polythene vide seizure memo already Ex.PW3/B. Thereafter, HC Pradeep prepared Rukka already Ex.PW1/B and handed over the same to Ct. Vinod for registration of FIR. After registration of FIR Ct. Vinod returned at the spot along with second IO/HC Mukesh. Copy of FIR and original Rukka was already with him. (Accused Umesh present in the court on that day was correctly identified by the witness). Accused was arrested and personally searched in his presence at the spot. The second IO/HC Mukesh prepared site plan at the instance of HC Pradeep. IO recorded his statement. During cross- examination by ld. counsel for the accused he testified that secret informer ANURAG Digitally signed by ANURAG THAKUR THAKUR 19:09:45 +05'30' Date: 2021.02.24 FIR no. 93/17 State v. Umesh Kumar PS Timarpur 9 of 12 gave information to ASI Rajesh on phone and met him below Wazirabad Flyover. He was with ASI Rajesh. The information was given on 27.02.2017. There was no requirement of departure entry in Excise Office. Sanjay Basti was around 12 to 15 KM from Excise Office. He along with ASI Rajesh went to the spot. They left office at about 4 p.m. and reached spot at 5.45 p.m. HC Pradeep, Ct. Vinod met at the spot with accused Umesh. HC Pradeep apprehended the accused on the spot. HC Pradeep asked 4 to 5 public persons to join the investigation but no one joined. The seizure memo of case property did not bear his signature, however, the same was seized in his presence. Accused was arrested and personally searched in his presence. However, it did not bear his signature. Rukka was prepared on the spot by HC Pradeep. They finally left the spot at 8.30 p.m. IO had recorded the statement of ASI Rajesh and himself. The disclosure statement of accused was recorded at the spot by HC Mukesh. He denied the suggestion that he had not witnessed the proceedings at the spot and he was deposing on the behest of IO. He further denied that recovery of the case property was planted upon the accused.
7. Vide separate statement ld. APP for state dropped witness ASI Rajesh Kumar as PW-4 ASI Satpal had already deposed regarding the same facts. The accused made a statement u/s 294 Cr.P.C voluntarily admitting the fact of recording of DD no. 41A dated 27.02.2017, registration of FIR, chemical examiner report, depositing of sample of case property vide RC No.16/12/17 dated 16.03.2017. He did not dispute the genuineness of aforesaid documents and the documents were exhibited as Ex.A/1 to Ex.A/4. Prosecution evidence was closed on 12.03.2020. Statement of the accused u/s 313 Cr.P.C was recorded on 16.03.2020. The accused elected not to lead defence evidence. Final arguments were concluded on 29.01.2021. Having cogitated over the matter, my observations are delineated hereinafter.
ANURAG Digitally signed by
ANURAG THAKUR
THAKUR Date: 2021.02.24
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FIR no. 93/17 State v. Umesh Kumar PS Timarpur
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8. The accused was allegedly apprehended at main road, near Sanjay Basti Timarpur bus stand at about 5:40 pm and it had also come in testimonies of all four prosecution witnesses that the public persons were available at the spot, yet PW-1 did not make any of the public persons join the investigation before making a cursory search of the bags carried by the accused. Not only this, even the second IO HC Mukesh Kumar did not make sincere and strenuous efforts to make public persons join the investigation despite admitting that public persons were present at the spot. PW-1 and PW-2 in their testimonies revealed that they asked the public persons to join the investigation but all refused and left the spot without disclosing their names and addresses. They stated that no notice was served upon the public persons. This casual approach of police officials in making halfhearted attempts to join public persons as witnesses in the case is beyond the comprehension of this court but the benefit, if any of such omission must accrue to the accused. The Supreme Court in Hemraj v. State of Haryana AIR 2005 SC 2110 observed that:-
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case."
The failure to join public witnesses despite their presence creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
9. Secondly, If PW-1 and PW-3 who had apprehended the accused with the illicit liquor, were on emergency duty and were returning after carrying out inquiry about information received by DD no. 41A dated 27.02.2017, then prosecution should have brought the relevant records showing their departure from the PS and should have proved by documentary evidence that they were on emergency duty by producing relevant record for the same as per the chapter 22 Rule 49 of ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.02.24 19:10:24 +05'30' FIR no. 93/17 State v. Umesh Kumar PS Timarpur 11 of 12 the Punjab Police Rules, 1934 which is reproduced as under:
"Chapter 22 Rule 49 Matter to be entered in Register no.11. 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 a 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.11 is maintained."
Since the Punjab Police Rules have not been complied with and requisite DD entries have not been brought on record, the prosecution has put its case into a web of questions and the benefit of this lacuna also goes to the accused as a watertight case could not be established against the accused.
10. The tehrir Ex. PW1/B prepared by HC Pradeep Kumar mentions about seizure of illicit liquor and form M-29. This tehrir was taken by Ct. Vinod to PS to get the FIR lodged. Hence at the time of preparation of seizure memo & form M- 29 by HC Pradeep, the FIR had not even been lodged, how the FIR number appeared on the seizure memo and form M-29 is sought to be explained by PW-2 HC Mukesh Kumar who testified regarding the same stating "I surfaced the FIR number on the documents handed over to me by HC Pradeep". Why FIR number was later on inserted by PW-2 on already completed documents is beyond the understanding of this court. The documents handed over to PW-2 by PW-1 were tampered with, by adding FIR number in the same or the entire documents were prepared at the PS as is the claim of the accused can not be stated. In Pawan Kumar v. The Delhi Administration Criminal Appeal No. 113 of 1987 decided on 17th August 1987 it was observed by the Delhi High court that:
In the normal circumstances, the FIR no. should not find mention in the recovery memo or ANURAG Digitally signed by ANURAG THAKUR THAKUR 19:10:43 +05'30' Date: 2021.02.24 FIR no. 93/17 State v. Umesh Kumar PS Timarpur 12 of 12 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 FIR no. which had already come into existence before the registration of the case.
The observation made by the High Court acts as guidance for this court and the explanation given for mentioning of FIR number on seizure memo of case property does not find favour with this court.
11.As per the case of the prosecution, it is not clear when the seal was returned to PW-1 HC Pradeep by PW-3 Ct. Vinod as no seal handing over memo had been produced and proved on the record. The prosecution was bound to prove on the record as to when the seal was returned to the IO to remove the element of the tampering with the case property as well as false implication.
12.To summarise, the case against the accused is not foolproof and the chance of false implication cannot be ruled out. It would be grossly unjust to convict the accused for possession of illicit liquor on the basis of evidence adduced during trial. The case of prosecution does not inspire confidence and the charge against the accused has not been proved beyond reasonable doubt. Accordingly, accused Umesh Kumar is acquitted of the offence u/s 33 Delhi Excise Act, 2009.
ANURAG Digitally signed by ANURAG THAKUR Announced in the open court today i.e. on 24th February, 2021 THAKUR Date: 2021.02.24 19:11:04 +05'30' (ANURAG THAKUR) METROPOLITAN MAGISTRATE -02 TIS HAZARI COURTS, DELHI This judgment consists of 12 pages and each and every page of this judgment is signed by me.
FIR no. 93/17 State v. Umesh Kumar PS Timarpur