Delhi District Court
Fir No. 401/2014,, Ps : New Ashok Nagar ... vs Jhoolan Shah on 27 January, 2020
FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah
IN THE COURT OF ACMM (EAST DISTRICT)
KARKARDOOMA COURTS, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Jhoolan Shah
FIR No. 401/2014
PS : New Ashok Nagar
U/s 33 Delhi Excise Act
Date of Institution : 29.07.2016
Date of reserving of order : 27.01.2020
Date of Judgment : Oral
CNR No. DLET020063552016
JUDGMENT
1. Serial No. of the case : 14608/2016
2. Name of the Complainant : SI Ranvir Mavi
3. Date of incident : 08.04.2014
4. Name of accused person :
Jhoolan Shah S/o Sh. Nagina Shah R/o
Virender Ka Plot, Behind Samarvilla
School, Dallupura, Delhi
5. Offence for which chargesheet
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FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah
has been filed : S. 33 Delhi Excise Act.
6. Offence for which charge
has been framed : S. 33 Delhi Excise Act
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 27.01.2020
BRIEF REASONS FOR ORDER:
1. Mr. Jhoolan Shah, the accused herein, has been chargesheeted for committing offence punishable under Section 33, the Delhi Excise Act.
2. The case of the prosecution is that on 08.04.2014, the accused was apprehended by complainant SI Ranvir Mavi alongwith HC Sandeep and Ct. Kapil on the basis of secret information. The accused was found carrying four plastic kattas of illicit liquor in a rickshaw. Three plastic kattas were having 6 cartons of illicit liquor (2 cartons each) wherein each carton was having 24 beer cane of "Kingfisher Extra Strong Premium Beer 500 ml"
and in fourth plastic katta there was one carton of illicit liquor in which 21 quarter bottles of "Impact Grain Whisky Page 2 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah for sale in Haryana 180 ml" were found. On the basis of the complainant, present FIR was registered. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was chargesheeted for the offence punishable under Section 33, the Delhi Excise Act.
3. After perusing the record, cognizance was taken by the Court and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 33, the Delhi Excise Act, was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 03 witnesses to prove its case against the accused.
5. PW1 HC Kapil is the police official and recovery witness. He has deposed that on 08.04.2014, on the basis of secret information he alongwith SI Ranvir Page 3 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah Mavi and HC Sandeep apprehended the accused who was carrying illicit liquor in a rickshaw. He further deposed that accused was arrested in his presence and IO seized the illicit liquor and rickshaw in his presence. He correctly identified the accused before court. He has deposed that the IO had sealed the case property with the seal of 27 NAN. He seized the case property vide memo Ex.PW1/A. The IO had handed over the seal to him after use. The IO had prepared a tehrir and HC Sandeep had taken the rukka to PS for registration of FIR. He had returned at the spot with SI Sunil. SI Sunil had arrested the accused vide memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW1/C. Disclosure statement of the accused was recorded which is Ex.PW1/D. Site plan was prepared which is Ex.PW1/E. The seizure memo of the rickshaw is Ex.PW1/F. The case property is Ex.P1 (colly.).
6. PW2 SI Ranvir Mavi is the police official and the companies. He has deposed that similar to PW1.
7. PW3 SI Sunil Kumar is the police official and the IO of the case. He had arrested the accused and Page 4 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah conducted his personal search. He got conducted medical examination of accused and deposited the case property in malkhana and prepared the charge sheet.
8. The witnesses were cross examined. The accused admitted the FIR and chemical examination report u/s 294 Cr.P.C.
9. The prosecution evidence was closed. The accused was examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied the incriminating evidence. He would state that he was falsely implicated in the present case. Nothing was recovered from his possession.
10. The accused did not lead defence evidence. Therefore, matter was fixed for final arguments.
11. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identity of the accused has been established beyond reasonable doubts. All the ingredients of the offence have been proved by the prosecution. Hence the guilt of the accused has been proved. Therefore, it is prayed, the accused may be convicted.Page 5 of 20 ACMM/E/KKD/Delhi/27/01/2020
FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah
12. Ld. Counsel for accused, on the other hand, would argue that nothing was recovered from the possession of accused at the time of his arrest and he has been falsely implicated in the present case. Ld. Counsel for accused would further contend that police had planted the said illicit liquor upon the accused with intention to send him behind bars and to settle some personal score. All prosecution witnesses are fellow police officials and they all are interested witnesses. No independent public person has been examined to prove the factum of recovery of illicit liquor in question from accused despite spot in question being a thickly populated commercial and residential area. There are various contradictions in the testimonies of the prosecution witnesses. Benefit of doubt may be given to the accused and he may be acquitted.
13. I have heard the submissions and carefully perused the material available on record.
14. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of Page 6 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court
15. The accused herein has been charged for an offence punishable under section 33, the Delhi Excise Act. The Section reads as under:
"Section 33 Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. 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 work; any manufactory or warehouse;
(c) bottles any liquor or purposes of sale;
(d) uses, keeps or has in his possession any Page 7 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than today or tan;
(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."
16. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or license and he was apprehended on the spot.
17. In order to bring home the charge against the accused, the prosecution is required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
18. Ld. APP for the state has relied upon Section Page 8 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah 52 of the Delhi Excise Act. It has been argued that where the accused is charged of commission of the offence punishable Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary.
19. I have considered the submission. However, I am of the opinion that this is not the correct interpretation of the law. Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of offence in certain cases. (1) In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily. (2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of Page 9 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
20. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly show that it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused before the presumption under the aforesaid provision is being raised against the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. Now it has to be seen whether the prosecution has established beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor.
21. In the present case, the entire story of the prosecution is based on the fact of alleged recovery of illicit liquor from the possessesion of the accused which he Page 10 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah was allegedly carrying on a rickshaw. As the record would reveal, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from a public place. PW1 HC Kapil has stated in his cross examination that public persons were present at the spot. Thus, the place of recovery and apprehension of the accused is clearly located in an area where public persons were readily available. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
22. There is nothing on record to show that PW2 SI Ranvir Mavi had asked public persons to join the proceedings or he had served any notice under Section 160 Cr.PC. upon the public persons. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official Page 11 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah 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.
23. Thus, it is shown on record that the complainant and the IO did not make any genuine efforts in the present case to get independent public witness joined the search proceedings despite spot being crowded area. Nonavailability of a public witness is one thing and not joining public person as a witness despite their availability is altogether different thing. In case a public person is available, it is duty of the police official to make sincere efforts to persuade such person to join the legal proceedings to become a witness. However, in the present case no such efforts are shown to be made by the police officials. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under: "The recovery was from a street with houses on both sides and shops nearby. And, yet no witness Page 12 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah 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.''
24. In the present case, nonjoining of any public person as a witness creates doubt on the case of the prosecution.
25. This Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
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26. As per the testimonies of the prosecution witnesses PW1 and PW2, the samples of liquor and other case property were sealed by PW2 SI Ranvir Mavi with the seal of 27NAN. PW1 has stated that the seal was handed over to him. However there is no handing over memo of the seal to show that seal was handed over to some independent witness. Thus, the possibility that the case property might have been tampered with cannot be ruled out.
27. Further PW2 SI Ranvir Mavi has deposed that he had seized the liquor, the sample bottle vide memo Ex. PW1/A. Thereafter, he prepared the rukka. It is, therefore, clear that the seizure memo of the liquor was prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo Ex. PW1/A. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number Page 14 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah should not find mention in the seizure memo, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW1/A bears the FIR number and case details in the same ink and the same handwriting in which the said documents were prepared. The same indicates that FIR number was mentioned on the said document while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:
"... 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. 36 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 Page 15 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah 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."
28. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the SubInspector Narender Kumar Tyagi (PW7), 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 Page 16 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah 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."
29. In the present case also, no explanation is available on record as to how the FIR number and case details had appeared on the seizure memo Ex. PW1/A. The same leads to only one conclusion that either the said document was prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases a reasonable doubt has been raised on the case of the prosecution. The accused is therefore entitled to the Page 17 of 20 ACMM/E/KKD/Delhi/27/01/2020 FIR No. 401/2014,, PS : New Ashok Nagar State Vs Jhoolan Shah benefit of reasonable doubts.
30. Further, the witnesses PW1 and PW2 have stated that they were on patrolling duty when the accused was apprehended. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 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.
31. "Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
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32. In the present case, however, no DD entry record of the presence of HC Kapil and SI Ranvir Mavi on the spot on patrolling duty is proved by the prosecution. Hence, the fact of presence of PW1 and PW2 on the spot where the accused was allegedly apprehended has come under the clouds of reasonable doubt. As already stated the public witness who could have deposed regarding the presence of PW1 and PW2 on the spot have not been examined by the prosecution which also creates reasonable doubt on the case as projected by the prosecution.
33. In the light of the discussion hereinabove, I am of the opinion that the facts that no independent witness was cited or examined, possibility of misuse of seal has not been ruled out, the appearance of FIR number and case particulars on the seizure memo has not been explained, and no DD entry record of the police officials on the spot has been proved, are able to raise clouds of reasonable suspicion over the prosecution story. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
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34. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused. The accused is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act.
35. Case property be confiscated to State as per rules.
36. The accused has already furnished bond under Section 437A Cr.P.C, with one surety along with photographs and copies of address proof.
Digitally signed by DINESH DINESH KUMAR
Date:
KUMAR 2020.01.28
04:35:57
+0530
Pronounced in the open Court on (Dinesh Kumar)
this 27th day of January 2020. ACMM (EAST) KKD Courts, Delhi.
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