Delhi District Court
State vs Vinod on 27 March, 2024
IN THE COURT OF SH. P BHARGAV RAO, MM-03 (WEST), THC, DELHI
Cr. Case No. 10171/2019
FIR No. 025/2019
State Vs. Vinod
DLWT020206452019
Cr. Case No. : 10171/2019
FIR NO. : 025/2019
Police Station : Nihal Vihar
Date of commission of offence : 08.01.2019
Date of institution of the case : 21.12.2019
Name of the complainant/ : Ct. Amit, No. 1558/OD, PS Nihal Vihar,
informant Delhi.
Name of accused and address : (I) Vinod S/o Late Sh. Jaswant Singh, R/o
G-63, Nihal Vihar, Delhi.
Offence complained of or proved : 33/38 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of judgment : 27.03.2024
State Vs. Vinod FIR No. 025/2019 Page No. 1/12
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1.This is the prosecution of the accused persons namely Vinod upon a charge sheet filed by the police official of police station Nihal Vihar under section 33/38 Delhi Excise Act.
2. The allegation against the accused Rajender that he was found in possession of illicit liquor on 08.01.2019 at about 10:20 p.m. at RZG Block Near Kheda Store, Delhi. Accordingly, the accused stands charged for offence U/s 33/38 Delhi Excise Act.
3. Briefly stated facts of the present case is that HC Ramesh caught the accused persons with quarter bottles of illicit liquor having label of Asli Santra Desi Masaledar Sarab and Double Blue Whisky for sale in Haryana only.
4. After completing the formalities, investigation was carried out by PS Nihal Vihar and a charge sheet was filed against the accused. The charge was framed against the accused persons u/s 33/38 Delhi Excise Act, to which he pleaded not guilty and claimed trial.
5. In order to substantiate its case, prosecution has examined 2 witnesses only. The complainant expired during the trial and he was dropped from the list of witnesses on 23.01.2023.
6. The testimony of all the witnesses are reproduced hereunder for ready reference and the relevancy and admissibility of said testimony will be dealt with at the later part of the judgment :
State Vs. Vinod FIR No. 025/2019 Page No. 2/127. The testimony of PW1 HC Ramesh Kumar :
"On 08.01.2019, I was posted at PS Nihal Vihar as HC. On that day, I was present at the PS. At about 10:30pm, I received DD No. 57B regarding illicit liquor caught with accused. The said DD is Ex. PW-1/A, I visited at the spot i.e. B-Block, Kheda Departmental Store wali Gali, Nihal Vihar. Ct. Amit produced me one person with plastic bag containing illicit liquor and two cartoons containing in illicit liquor. I asked 4-5 persons to join the investigation in the present case but none of them agreed to join investigation left the spot without disclosing their name and addresses no notice could be served upon them due to paucity of time. I checked the said plastic bag and found total 179 plastic quarter bottles having label of Asli Santra Desi Masaledar Sarab for sale in Haryana only 180 ml. I took out one sample from the said lot and sealed with the seal of SK. I sealed the Katta after putting the remaining 178 quarter bottles in the same with the seal of SK. I put serial no. 1 to the katta and sample as S1. Thereafter, I checked the cartoons out of which one cartoon containing illicit liquor having label of Double Blue Whiskey for sale in Haryana only 180 ml and 19 quarter having label of EPISODE for sale in Haryana only 180 ml. I took out two samples of each brand from the said cartoon and sealed the same with the seal of SK. Thereafter I sealed the said cartoon with seal of SK. I put serial no. 2 on the cartoon and samples as 2A and 2B. Thereafter, I checked second cartoon and found 11 beer bottles having label of Kingfisher for sale in Haryana only. I took one sample from the said cartoon. I sealed the cartoon and sample with the seal of SK. I put serial no. 3 second cartoon and sample as 3A. I handed over the said seal to Ct. Anil. I also filled form M-29. I seized the case property vide seizure memo which is Ex. PW-1/B bearing my signatures at point A and signature of Ct. Amit at point B. I recorded the statement of Ct. Amit which is Ex. PW-1/C bearing my signatures at point A and signature of Ct. Amit at point B. I prepared rukka which is Ex. PW-1/D bearing my signatures at point A. I handed over the same to Ct. Amit for registration of FIR at the PS, who accordingly visited at the PS and returned back at the spot with copy of FIR and Rukka and the same was handed over to me. On enquiry accused is revealed his State Vs. Vinod FIR No. 025/2019 Page No. 3/12 name as Vinod S/o Sh. Jaswant. I prepared the site plan at the instance of Ct. Amit and same is Ex. PW-1/E bearing my signatures at point A and signature of Ct. Amit at point B. I arrested accused vide memo which is Ex. PW-1/F bearing my signatures at point A and signature of Ct. Amit at point B. I recorded disclosure statement vide disclosure memo which is Ex. PW-1/G bearing my signatures at point A and signature of Ct. Amit at point B. I also prepared search memo vide search memo which is Ex. PW-1/H bearing my signatures at point A and signature of Ct. Amit at point B. Thereafter, we took the case property and accused to the PS. Case property is deposited in Malkhana and accused was put in the lockup. On the next day, accused was produced before the court. I recorded the statement of Ct. Amit. On 19.02.2019, I sent the samples to Excise lab through Ct. Amit. I collected receipt of samples which is Ex. PW-1/1 bearing my signatures at point A. I recorded the statement of Ct. Anil. I collected Chemical examiner report which is already Ex. A4. On completion of the investigation, I prepared the challan u/s 33/38 Excise Act. Accused present in the court today and correctly identified by the witness. MHC(M) produced the case property i.e. one bottle of having label kingfisher beer and also written particular of the present case FIR and sealed with the seal of the SK and one plastic bottle of Asli Santra Desi Masaledar quarter bottle bearing particulars of the present case with the seal of SK and two glass bottles having label of Double blue whiskey and EPISODE classic whiskey both are sale in Haryana only with correct particulars of the present case. MHC(M) submits that the seal of case property was put by the then MHC(M) at the time of destruction of the remaining case property. Copy of order bearing no. Con. 15640/2019/2253 dated 08.07.2020 issued by Assistant Commissioner and DD No. 91A dated 19.02.2021 PS Nihal Vihar with one CD and two photographs showing plastic bag having particulars of the present case and empty bottle of the case property. The said copy of order and DD entry which is Ex. PW-1/J and PW-1/K. The photographs and CD are Ex. P1 and P2 (colly). He was duly cross-examined by the Ld. Counsel for the accused.State Vs. Vinod FIR No. 025/2019 Page No. 4/12
8. The testimony of PW2 HC Anil Kumar :
"On 19.02.2019 I was posted at PS Nihal Vihar as a constable. On that day, I received the sealed case property from MHC(M) of the PS in sealed condition vide RC No. 77/21/19 dated 19.02.2019 with form M-29 and took the same to Excise Lab, ITO. I deposited the same at the Excise Lab in sealed condition. No tempering was done with the sealed pullindas during my custody. I deposited the receipt to the MHC(M). My statement was recorded by the IO HC Ramesh Kumar". He was duly cross examined on behalf of counsel for accused.
09. Accused persons admitted the genuineness of Excise Report under Section 294 of the Criminal Procedure Code, 1973 (herein after referred as Cr.P.C). The statement of the accused namely Vinod was recorded U/s 313 Cr.P.C. read with Section 294 Cr.P.C. on 26.03.2024 wherein all the incriminating circumstances were put to him which he denied and pleaded him false implication and also false plantation of the case property. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
11. I have heard Sh. Krishan Murari, Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached by the accused. Per contra, Ld. Counsel for the accused submitted that no public witnesses were examined in the present case regarding recovery of illicit liquor. He further submitted that the accused has been falsely implicated in the present case and the case property has also been planted against the accused.
12. 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 State Vs. Vinod FIR No. 025/2019 Page No. 5/12 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.
13. Although, sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the accused 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. Relevant extract of the said provision is reproduced below:
"Presumption as to commission of offence in certain cases. - (1)In prosecution under Section 33, it shall be presumed, until thecontrary is proved, that the accused person has committed theoffence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for thepossession of which he is unable to account satisfactorily.
(2) Where any animal, vessel, cart or other vehicle is used inthe commission of an offence under this Act, and is liable toconfiscation, the owner thereof shall be deemed to be guilty ofsuch offence and such owner shall be liable to be proceededagainst and punished accordingly, unless he satisfies the courtthat he had exercised due care in the prevention of thecommission of such an offence."
14. But this presumption is rebuttable and accused can rebut the same by either referring to the prosecution's evidence or by adducing defence evidence. Also, it should be noted that the words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a prerequisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused that the State Vs. Vinod FIR No. 025/2019 Page No. 6/12 accused can be called upon to account for the same.
15. 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. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case. Hence, he deserves to be acquitted.
16. During the final arguments, Ld. Counsel for the accused submitted that the prosecution did not examine even a single public witness to prove the recovery of illicit liquor from the possession. In the present case, the recovery witnesses are only police witness and accused has been falsely implicated in the present case.
17. 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) 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.
18. 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 could be sought 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.
19. In the instant case, as per the testimonies of PWs and also from the perusal of State Vs. Vinod FIR No. 025/2019 Page No. 7/12 site plan, the alleged recovery was made from a busy locality. Therefore, it cannot be said that no public person would have been available at the spot. Although prosecution witnesses have asserted that they implored some of the public witnesses to join the investigation but they refused to participate in the investigation. This explanation tendered by the prosecution witnesses does not seem to be tenable as neither the details of those public persons have been 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 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. 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 itshould be shown by the police that sincere efforts have beenmade 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 ortwo 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."
20. While the testimony of the police officials cannot be discarded away merely State Vs. Vinod FIR No. 025/2019 Page No. 8/12 because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinized 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 inter alia the following:
"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."
21. 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 State Vs. Vinod FIR No. 025/2019 Page No. 9/12 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"
22. 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 scrutinise their testimonies more closely and should preferably be corroborated.
23. The prosecution did not even bring on record necessary DD entries to prove arrival and departure of the police officials from the police station. It should be noted that if the police personnel who has apprehended the accused with illegal liquor was on patrolling duty, prosecution should have brought the relevant records showing his arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
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 State Vs. Vinod FIR No. 025/2019 Page No. 10/12 maintained.
24. 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 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."
25. Since all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that chances of false implication of accused under the provisions of Excise Act cannot be ruled out at the instance of the police.
26. As per the testimonies of PWs, the sample of liquor and case property were deposited the same in malkhana. Interestingly, no seal handing over memo was ever prepared in the present memo. Also, prosecution did not file any document on record to show that the said seal was eventually deposited in malkhana.
27. 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 links, the benefit of doubt has to State Vs. Vinod FIR No. 025/2019 Page No. 11/12 be given to the accused. Accused is giving benefit of doubt. As such the accused deserves acquittal in the present case.
28. Therefore, in view of the above discussions and findings, the accused Vinod is acquitted for the offence u/s 33/38 of Delhi Excise Act.
Digitally signed by P BHARGAV P RAO
BHARGAV Date:
2024.03.27
RAO 18:25:22
+0530
Pronounced in open court on (P. Bhargav Rao)
27.03.2024 MM-03/West/THC/Delhi
27.03.2024
State Vs. Vinod FIR No. 025/2019 Page No. 12/12