Delhi District Court
State vs . Ravinder @Lado on 29 April, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 235/16
U/s : 33/38/58 Delhi Excise Act
P.S. : Ranhola
State Vs. Ravinder @Lado
JUDGMENT:
a) CNR No. : DLWT02-015198-2016
b) Sl. No. of the Case : 76095/16
c) Name & address of the : HC Chander Hass, No. 2379/West,
complainant. PS Ranhola,Delhi.
d) Name & address of : Ravinder @Lado
accused S/o Sh. Chander Bhan,
R/o Gopalpur PS Kharkhoda,
Distt. Sonipat, Haryana.
e) Date of Commission of : 17.03.2016
offence
f) Offence complained off : U/s 33/38/58 Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Convicted
i) Date of such order : 29.04.2022
Date of Institution : 17.10.2016
Final arguments heard on : 29.04.2022
Judgment Pronounced on : 29.04.2022
FIR No: 235/16 State v. Ravinder @Lado Page No.1/36
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 17.03.2016 at about 09:00 AM at Main Najafgarh Road, Near Vijender Farm House, Kotla Bus stand, Rohtak Road, Delhi within the jurisdiction of PS Ranhola accused was found in possession of 110 gatta peties of illicit liquor out of which 62 gatta petties were containing 50 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana , 37 Petties each containing 48 quarter bottles of " Impact Grain Whiskey" for sale in Haryana only and further 11 petties each containing 48 quarter bottles of "Episode Classic Whiskey" for sale in Haryana only, without any license or permit in a tempo bearing registration no. DL-1LG-2329.
2. After investigation, challan for offence U/s 33/38/58 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33/38/58 Delhi Excise Act was framed against accused on FIR No: 235/16 State v. Ravinder @Lado Page No.2/36 13.08.2018, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined three witnesses.
5. PW-1 Ct. Surender who deposed that on 17.03.2016 he was posted at PS Ranhola as Ct. On that day he alongwith Ct. Deepak were on patrolling duty in the area of Ranhola. While patrolling the area at about 08:50 AM, they reached at Brahampuri Colony, where they met with one secret informer who informed them that one person would come in one TATA-407 could be apprehended alongwith illicit liquor which will come from Najafgarh and will go towards Nangloi and he could be apprehended, if immediate raid was conducted. Thereafter they immediately went to the spot and installed pickets on the road and started checking the vehicles. After some time, at about 09:00 AM, one TATA-407 bearing registration no. DL-1LG-2329 came towards the spot where they were stationed alongwith the secret informer. On seeing the said truck, the secret informer signaled him and left the spot FIR No: 235/16 State v. Ravinder @Lado Page No.3/36 immediately. He immediately made the driver of the said truck to stop and checked the said truck and found 110 carton petties containing illicit liquor. He inquired the name of the said person on which he revealed his name as Ravinder @Lado, who were present in the court and correctly identified by the witness. He immediately informed the duty officer at PS Ranhola. On that, HC Chander Hass came to the spot and to whom he produced custody of the accused and recovered carton petties containing illicit liquor. Thereafter, HC Chander Hass asked 4-5 public persons to join the investigation, but all of them refused and left the spot without disclosing their names and addresses. Thereafter, the 62 quarter bottles of "Asli Santara Masaledar Deshi Sharab" 180 ML each with the label of for sale in Haryana only and each pety was containing 50 quarter bottles each. The remaining 37 carton petties were found containing "Impact Grain Whiskey of 180 ML each for sale in Haryana only"
and each peti was containing 48 quarter bottles each and the remaining 11 carton petties were found containing "Episode Grain Whiskey 180 ML each for sale in Haryana only and each petty was found containing 48 quarter bottles. Two quarter bottles were taken FIR No: 235/16 State v. Ravinder @Lado Page No.4/36 as sample from each recovered carton petties and the mouth of the samples were sealed with the help of one white tap and sealed with the seal of "CHB" and remaining quarter bottles were put in the same carton petties and were sealed with the seal of "CHB".
Thereafter, petties were packed in separate white colour katta and the mouth of the katta was sealed with the seal of "CHB". Each Katta was containing two pettie of illicit liquor. Thereafter, serial no. 1-31 was assigned to "Asli Santara Masaledar Deshi Sharab" and serial no. 32-49 to "Impact Grain Whiskey" and no. 50-54 was given to "Episode Grain Whiskey". The sample bottles were assigned the serial no. A and B to "Asli Santara Masaledar Deshi Sharab", C to "Impact Grain Whiskey and D to "Impact Grain Whiskey". Thereafter HC Chander Hass prepared the seizure memo of illicit liquor vide Ex.PW1/A and form M-29 was prepared vide Mark-A1 and seal was handed over to him. HC Chander Hass seized the above said TATA- 407 vide Ex.PW1/B. Thereafter, the statement of Ct. Deepak was recorded by HC Chander Hass and he prepared the rukka and handed over the same to Ct. Deepak which he took the same to PS, got the case registered and came back with the copy of FIR and FIR No: 235/16 State v. Ravinder @Lado Page No.5/36 original rukka and handed over the said documents to HC Chander Hass. IO arrested the accused and also conducted his personal search vide Ex.PW1/C and PW1/D. IO prepared the site plan of the spot at his instance vide Ex.PW1/E. IO also recorded the disclosure statement of the accused vide Ex.PW1/F. Case property and accused brought to the PS and the case property was deposited in the safe custody of MHC(M). Thereafter, IO sent Ct. Deepak and the accused to SGM hospital for his medical examination and thereafter both of them returned to PS. Thereafter, one day PC remand of the accused was taken by the IO and he alongwith IO and Ct. Deepak took the accused to his native village at Gopalpur, Sonipat, Haryana where he took them to the house of the owner of the abovesaid TATA-407 truck but the owner of the said truck was not available and the pointing memo was prepared by the IO vide Ex.PW/G. At that stage, MHC(M) of PS Ranhola produced three quarter bottles bearing labels of Asli Santara Masaledar Deshi Sharab, Impact Grain Whiskey and Episode Grain Whiskey of 180 ML each for sale in Haryana only. The said quarter bore the particulars of the present case FIR and the same were Ex.P-1 to ExP-3. FIR No: 235/16 State v. Ravinder @Lado Page No.6/36
At that stage, MHC(M) also produced order of confiscation dated 10.07.2017 with the order of destructions dated 16.07.2017 annexed with the report and its certificate under the seal and signature of SHO PS Ranhola. The said documents also contained photograph containing images of recovered quarter bottle of illicit liquor. The same was shown to the witness and he correctly identified the case property and the same was Ex.P- 4(Colly). The destruction order containing the particulars of the present case FIR as serial no. 01 whereby the recovered liquor of the present case was destroyed vide order dated 16.07.2017. The said documents were taken on record that day as Ex.P-5(Colly).
In his cross-examination, witness further deposed that he alongwith Ct. Deepak had gone on patrolling on their private motorcycle at about 08:50 AM. The spot where the secret informer met them was a residential area. It was correct that no notice could be served upon the public persons who refused to join the investigation. It took 2-3 minutes to reach at the spot. After 8-10 minutes of getting the secret information from the secret informer, the truck of the accused was apprehended. It is correct that the FIR No: 235/16 State v. Ravinder @Lado Page No.7/36 registration no of the truck was not disclosed by the IO. It was correct that he had not asked any public person to join the investigation at the time of recovery. Ct. Deepak made a call through his phone at about 09:00 AM and within 15-20 minutes IO reached at the spot. Ct. Deepak went to PS at 12:30 PM and returned after one hour. IO did not prepare any document during this period. IO prepared seizure memo, search memo, jamatalashi, arrest memo before sending rukka. Seal was handed over to him after use and he deposited the same in the malkhana same day and no memo was prepared in that regard. He did not remember the time of the arrest of accused. They finally left the spot at 02:00 PM. The case property was brought to PS in the offending vehicle driven by the accused himself alongwith IO. IO had not mentioned any specific mark of number on remaining quarter bottles. It was incorrect to suggest that he had not done the investigation fairly. It was wrong to suggest that nothing was recovered from the possession of the accused or that he was deposing falsely.
6. PW-2 Ct. Deepak deposed that on 17.03.2016, he was FIR No: 235/16 State v. Ravinder @Lado Page No.8/36 posted at PS Ranhola as Ct. On that day, he alongwith Ct. Surender were on patrolling duty and while patrolling when they reached at Brahmpuri Colony, they met one secret informer who informed them that one TATA-407 loaded with illicit liquor will come from the side of Najafgarh and go towards Nangloi. They requested 4-5 public persons to join the investigation but none agreed and went away without disclosing their names and addresses. He alongwith secret informer and Ct. Surender reached at Kotla Bus stand, near Vijender Farm House, road going towards Nangloi from Najafgarh. They put barricading on the roads. At about 09:00 AM, one TATA- 407 bearing No. DL-1LG-2329 came from the side of Najafgarh and on the pointing out of secret informer they stopped the said tempo. Driver of the tempo stopped the tempo and alighted the tempo and tried to escape but he was apprehended by Ct. Surender. The name of the driver of the said tempo was revealed as Ravinder @Lado who is accused in the present case. He could identify the accused if show to him. They checked the tempo and found that same was loaded with illicit liquor. They informed said fact to the DO. IO came at the spot. IO recorded his statement vide Ex.PW2/A. IO checked FIR No: 235/16 State v. Ravinder @Lado Page No.9/36 the tempo and found same was containing 110 carton boxes of illicit liquor out of said 110 carton boxed, 62 carton boxes were containing 50 quarter bottles each of Asli Santara Masaledar Deshi Sharab for sale in Haryana only, 11 carton boxes were containing 48 quarter bottles each of Episode Classic Whiskey and 37 carton boxes were containing 48 quarter bottles of each Impact Grain Whiskey. IO separated 2 quarter bottles from each carton box and sealed them with seal of "CHB". The remaining case property was also sealed with seal of "CHB". IO filled form M-29 and seized the case property and said tempo vide memo Ex.PW1/A and Ex.PW2/B. IO prepared the rukka and handed over to him for registration of FIR. He took same to the PS and got FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. IO arrested and personally searched the accused vide memo Ex.PW1/C and PW1/D. IO recorded disclosure statement of accused vide memo Ex.PW1/F. Case property was deposited in Malkhana. IO recorded his statement. He can identify the case property, if shown to him and case property vide Ex.P1- P5(Colly).
FIR No: 235/16 State v. Ravinder @Lado Page No.10/36
In his cross-examination, witness further deposed that he left the PS at about 08:00 AM on motorcycle alongwith Ct. Surender. The spot was at a distance of about 100 meter where secret informer met them. Secret informer did not inform them the vehicle number. Secret informer left the spot after indicating towards the vehicle. He did not remember whether he or Ct. Surender asked any public person to join the investigation at the time of recovery. He made call to PS through his mobile. IO came at the spot within 15 minutes on his motorcycle alone. The spot was surrounded by residential area. He went to PS at around 12:30 PM and reached at the spot at around 01:30 PM. He did not remember whether IO prepared any documents before sending rukka. He did not remember as to where IO done the writing work. Site plan was prepared in his presence but he did not recollect whether he took his signatures on the same or not. Seizure memo of illicit liquor Ex.PW1/A and PW2/B were prepared in his presence but IO did not obtained his signatures on the same. Arrest memo was prepared in his presence at around 05:00 PM. They finally left the spot within 10 minutes after preparation of arrest memo of accused. Case property FIR No: 235/16 State v. Ravinder @Lado Page No.11/36 was brought into offending vehicle but he could not tell by whom it was drive. It was wrong to suggest that he did not remember some facts because he was not present there as well as he have not signed on seizure memo as he was not present there. It was wrong to suggest that nothing was recovered from possession of accused or that he was deposing falsely being official witness.
7. ASI Chander Has is the IO of the present case, who deposed that on 17.03.2016, he was posted at PS Ranhola as a HC. On that day, on receiving DD no. 18-A, he reached at the spot. On reaching there, he met Ct. Deepak who produced before him, accused Ravinder @Lado alongwith case property. He checked the case property and found that same was containing 110 carton boxes out of which each 62 carton boxes were containing 50 quarter bottles of illicit liquor Asli Santara Masaledar Deshi Sharab each and 37 carton boxes were containing 48 quarter bottles of illicit liquor of Impact Whiskey and 11 carton boxes were containing 48 quarter bottles of illicit liquor of Episode Whiskey, all for sale in Haryana only. He separated 2 quarter bottles from each carton box FIR No: 235/16 State v. Ravinder @Lado Page No.12/36 as a sample and sealed them with the seal of "CHB" . IO sealed the remaining case property with the seal of "CHB". He filled form M-29 vide Ex.PW3/A and also seized the case property vide memo Ex.PW1/A. He seized the offending vehicle vide memo Ex.PW2/B and recorded the statement of Ct. Deepak vide Ex.PW2/A. He prepared rukka vide Ex.PW3/B and handed over the same to Ct. Deepak for registration of FIR. He took same to PS and got FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to him. He prepared site plan vide Ex.PW1/E. IO arrested, personally searched and recorded disclosure statement of accused vide memo Ex.PW1/C, PW1/D and PW1/F. Case property deposited in Malkhana. Sample were sent to Excise Lab and obtained the result vide Ex.A-8 to A-18. He can identify the case property, if shown to him and case property in testimony vide Ex.PW-1. He can identify accused, if shown to him.
In his cross-examination, witness further deposed that he reached the spot within 5 minutes after receiving DD. It was correct that spot was residential area. Ct. Deepak took the rukka to PS at around 12:00 noon and returned back at the spot at around 12:30 FIR No: 235/16 State v. Ravinder @Lado Page No.13/36 PM. IO prepared seizure memo and sealed the case property when Ct. Deepak went to PS. I prepared site plan after registration of FIR. IO prepared site plan in the presence of both the constables. He obtained signature of Ct. Deepak on the site plan as it was prepared at his instance. He did not obtain the signatures of accused on site plan. He did not make any addition or alteration on those documents which he prepared before sending rukka. It was correct that no memo was prepared for seal handing or returning. Accused and case property was taken to PS in offending vehicle which was being driven by Ct. Surender. He took accused and case property directly to PS thereafter he did not conduct any proceedings. All the samples were put in one plastic katta which was brought by Ct. Surender. It was wrong to suggest that nothing has been recovered from possession of accused and that recovered articles were falsely planted upon accused. It is wrong to suggest that all the proceedings were done while sitting at the PS. It was wrong to suggest that he was deposing falsely.
8. After completion of prosecution evidence, all the FIR No: 235/16 State v. Ravinder @Lado Page No.14/36 incriminating evidence was put to accused U/s 313 Cr.P.C and his explanation was recorded, wherein he denied all the incriminating evidence against him and claimed to have been falsely implicated and case property planted upon him. Accused chose not to lead DE.
9. The accused admitted FIR No. 235/16, certificate U/s 65B Evidence Act, DD No. 15-B & 18/A and statement of Ct. Sunil, Manoj Kumar and Anil and Excise results (colly) vide Ex.A-1 to Ex.A-18 u/s 294 Cr.P.C respectively, therefore formal proof of the same was dispensed.
10. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
11. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own FIR No: 235/16 State v. Ravinder @Lado Page No.15/36 legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
12. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused Ravinder @Lado is liable to be convicted for the charge as the prosecution has been able to successfully discharge its burden of proof beyond reasonable doubt.
13. The allegations of the prosecution upon the accused are that on 17.03.2016 at about 09:00 AM at Main Najafgarh Road, Near Vijender Farm House, Kotal Bus stand, Rohtak Road, Delhi within the jurisdiction of PS Ranhola accused was found in possession of 110 gatta peties of illicit liquor out of which 62 gatta petties were FIR No: 235/16 State v. Ravinder @Lado Page No.16/36 containing 50 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana , 37 Petties each containing 48 quarter bottles of " Impact Grain Whiskey" for sale in Haryana only and further 11 petties each containing 48 quarter bottles of "Episode Classic Whiskey" for sale in Haryana only, without any license or permit in a tempo bearing registration no. DL-1LG-2329. The total quantity of illicit liquor found in possession of the accused as per seizure memo Ex.PW1/A will be around 972.64 litres because the quantity in one bottle was approximately 180 ML. as per excise result Ex. A8, Ex. A9, Ex. A10, Ex.A11, Ex. A12, Ex. A13, Ex. A14, Ex. A15, Ex. A16, Ex. A17 and Ex. A18. Therefore, as per the prosecution case, accused was found in possession of 972.64 litres of illicit liquor at the time when he was apprehended by PW1 and PW2 who were on patrolling duty on 17.03.2016 when they were informed by secret informer that accused can be apprehended in a TATA 407 vehicle when he will come from Najafgarh and go towards Nangloi. Afterwards, both the witnesses PW1 and PW2 saw him in TATA 407 vehicle bearing no. DL-1LG-2329 and they stopped and checked the vehicle which was containing contraband illicit liquor FIR No: 235/16 State v. Ravinder @Lado Page No.17/36 found to be 110 carton boxes of illicit liquor. This is clearly proved in the evidence of PW1 and PW2. Thereafter, information was sent to the concerned police station from where the IO ASI Chander Hass came on the spot. He seized the illicit liquor found in possession of the accused and took out two liquor bottles from each of the cartons as sample. Remaining case property was seized and sealed with the seal of "CHB". Form M29 i.e. Ex.PW3/A was filled at the spot and case property was deposited in police malkhana and samples were sent to Excise Laboratory. The case property was produced in the court as Ex.P1-P3 and they were three quarter bottles which bore the particulars of case FIR. The order of destruction, certificate and photographs of recovered quarter bottles of illicit liquor were also duly proved as Ex.P4 (colly) and Ex.P5. IO proved the investigation of this case. The report of Excise Laboratory has also been duly admitted by the accused as Ex. A8- A18 although he denied its contents but the result clearly shows that the presence of Ethyl Alcohol is positive. Form M-29 has been proved as Ex.PW3/A. Seizure memo has been duly proved as Ex.PW1/A and seizure of memo of TATA 407 vehicle was duly proved FIR No: 235/16 State v. Ravinder @Lado Page No.18/36 as Ex. PW2/B. Further, it is an admitted fact that the accused is the de facto owner of the vehicle in question as the original owner of vehicle no. DL-1LG-2329 was Manoj Kumar who sold the vehicle to Anil, and Anil sold the vehicle to present accused vide agreement and affidavit. It is pertinent to note that formal proof qua witnesses Manoj Kumar and Anil was dispensed with as accused admitted statements of witnesses Manoj Kumar and Anil qua ownership of vehicle vide Ex. A6 and Ex. A7 under section 294 Cr.P.C. Accused thus admitted that he was owner of the vehicle TATA 407 bearing no. DL-1LG-2329. In the present case PW1, PW2 and PW3 have categorically deposed that the accused was in possession of illicit liquor. These witnesses have apprehended the accused red handed with the illicit liquor. They are the best witnesses to describe the possession and recovery. There is no reason that why they would frame an innocent person in such a serious offence which they have alleged completely knowing its implications without any previous enmity with the accused. There is no suggestion in the cross examination of these witnesses or in the examination of accused u/s 313 Cr.PC regarding any "motive" of false implication on behalf FIR No: 235/16 State v. Ravinder @Lado Page No.19/36 of complainant or any enmity with the complainant. The bald assertion of the accused that he was falsely implicated by police officials belies common sense as there is no explanation of any motive and also assertion of the accused of falsely planting a vehicle upon him containing such a large quantity of illicit liquor is highly improbable. Since the witnesses themselves have apprehended the accused, it would require very convincing submissions to discard the evidence of the these witnesses when the story propounded by them seems to be most probable. It is not the case of the accused that he was not present at the spot of incident nor he plead any kind of alibi in this case. The testimony of the witnesses does not appears to be embellished or embroidered in respect of the offence committed nor could be impeached in their cross examination. In the present case, therefore the occurrence of the offence is proved by the witnesses against the accused and there is no good reason to discard their testimony which is found to be consistent and reliable and also inspires confidence. The FIR was promptly registered and there was no opportunity to the complainant to embellish or falsely implicate the accused. FIR No: 235/16 State v. Ravinder @Lado Page No.20/36 Testimonies of all the witnesses are corroborated in material particulars with each other. The witnesses has been duly cross examined but still there is nothing in there testimony to impeach their credit. All of them have categorically deposed the place and the manner in which the liquor was recovered and therefore I am of the view that the testimonies, of these witnesses inspires confidence and the probative force in their testimony is so strong so as to convict the accused.
14. It is pertinent to discuss the offences with which the accused is charged. The accused is charged with three offences ie. U/s 33/38/58 Delhi Excise Act 2009.
15. Section 33 reads as under: 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 license, permit or pass, granted under this Act.
(a) manufacture, imports, exports, transports or removes any FIR No: 235/16 State v. Ravinder @Lado Page No.21/36 intoxicant
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purpose warehouse
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant, collects, possesses or buys any intoxicant other than toddy or taari;
(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 which may extend to one lakh rupees.
In clause 'f' if person contravenes the provisions of this Act or any rule under this law, he will commit an offence U/s 33 of Delhi Excise FIR No: 235/16 State v. Ravinder @Lado Page No.22/36 Act. Delhi Excise Rules 2010 under Rule 20 prescribed the maximum limit of retail liquor an individual can possess. The maximum quantity of Indian liquor(whisky in the present case) for the purpose of Delhi Excise Act which can be possessed by individual can be 9 litres. It means that by possessing 62 carton boxes of 50 quarter bottles each of Asli Santara Masaledar Deshi Sharab for Sale in Haryana only( 62x50x180 = 558 litres) and 37 carton boxes of 48 quarter bottles each of Impact Whiskey for sale in Haryana only(37x48x180= 319.6 litres) and 11 carton boxes of 48 quarter bottles of Episode Whiskey for sale in Haryana only (11x48x180= 95.04 litres), the accused was possessing a cumulative quantity of 972.64 litres of illicit liquor.
16. Accused in present case violated the provisions of this Act because the accused could lawfully only have possessed upto 9 litres of the liquor, in view of the Delhi Excise Rules 2010. Therefore this rule has been violated and accused has committed an offence U/s 33 (f) of Delhi Excise Act by possessing 972.64 litres of illicit liquor. Therefore, the possession of illicit liquor by the accused FIR No: 235/16 State v. Ravinder @Lado Page No.23/36 beyond permissible limits is proved and therefore commission of offence under section 33 Excise Act has been proved.
17. The other offence with which the accused is charged is section 38 Delhi Excise Act. Section 38 reads as under:
Whoever has in his possession any liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six months and fine which may extend to one lakh rupees.
18. It has clearly come on record that the whiskey bottles which the accused was carrying were for sale in Haryana only which means that no prescribed duty was paid in respect of the case property Ex.
P1 to P5. to Delhi. There is no suggestion by ld. defence counsel in the cross examination of these witnesses that these liquor bottles were not for sale in Haryana only. It has been categorically proved that by carrying liquor bottles for sale in Haryana only the accused has committed an offence u/s 38 of Delhi Excise Act, 2009. FIR No: 235/16 State v. Ravinder @Lado Page No.24/36
19. Section 58 of the Delhi Excise Act provides that Certain things are liable to confiscation :
Whenever an offence has been committed, which is punishable under this Act, Following things shall be liable to confiscation, namely:--
(a) Any intoxicant, material, still, utensil, implement, apparatus in respect of or by means of which such offence has been committed;
(b) Any intoxicant unlawfully imported, transported, manufactured, sold or brought along with or in addition to, any intoxicant, liable to confiscation under clause (a);
(c)any receptacle, package, or covering in which anything liable to confiscation under clause (a) or clause (b), is found, and the other contents, if any, of such receptacle, package, or covering;
(d) animal, vehicle, vessel, or other conveyance used for carrying the same.
Thus, since the offences u/s 33/38 Delhi Excise Act have been committed by means of conveyance of illicit liquor by carrying the FIR No: 235/16 State v. Ravinder @Lado Page No.25/36 same in vehicle TATA 407 bearing no. DL-1LG-2329, the vehicle is liable to be confiscated in terms of section 58(d) of the Delhi Excise Act, 2009.
Now I come to the defence raised by the accused.
20. First defence taken by the counsel for accused is that the public witness were not joined during the seizure of the case property. In the facts and circumstances of the present case, I do not think that it could be a decisive factor to acquit the accused. It has been a matter of common experience that the public persons are not interested to be made witnesses in criminal cases when they have no concern or interest in the outcome of the case. In the current days of deteriorating law and order situation currently prevalent in the society, strict compliance of the rules regulating search and seizure demands a rational approach. Very few local witnesses have the courage to depose against their powerful neighbours or habitual miscreants obviously for fear of life and honour. In almost all cases local or public witnesses come to the court to say that they signed FIR No: 235/16 State v. Ravinder @Lado Page No.26/36 blank papers on the asking of the law enforcing agency and they did not see the recovery of incriminating articles. A rigid view on the rules of search and seizure should not be blown so far, else we may be strayed in wilderness. In the absence of any special reason evidence of investigation by related officials may be safely acted upon. There is no warrant of law to hold that the evidence of members of law enforcement agencies must have corroboration from other sources. Hon'ble Supreme Court and Hon'ble Delhi High Court have in number of cases held that the police witnesses are competent witnesses and the case of prosecution should not be thrown out only because the public witnesses are not joined in the investigation and examined during the trial.
21. Hon'ble Supreme Court of India in Appabhai v. State of Gujarat ( AIR 1988 SC 696) has been pleased to observe: "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus- stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground FIR No: 235/16 State v. Ravinder @Lado Page No.27/36 alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime is like civil dispute between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
22. The Hon'ble Supreme Court in Govinda Raju alias Govinda vs State 2012 7 SCC 722 observed "In the present case, the sole eyewitness is stated to be a police officer i.e. P.W.1. The entire case hinges upon the trustworthiness, reliability or otherwise of the FIR No: 235/16 State v. Ravinder @Lado Page No.28/36 testimony of this witness. The contention raised on behalf of the appellant is that the police officer, being the sole eyewitness, would be an interested witness, and in that situation, the possibility of a police officer falsely implicating innocent persons cannot be ruled out. Therefore, the first question that arises for consideration is whether a police officer can be a sole witness. If so, then with particular reference to the facts of the present case, where he alone had witnessed the occurrence as per the case of the prosecution. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness. This Court in the case of Girja Prasad (supra) while particularly referring FIR No: 235/16 State v. Ravinder @Lado Page No.29/36 to the evidence of a police officer, said that it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration. Wherever, the evidence of the police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. The courts have also expressed the view that no infirmity attaches to the testimony of the police officers merely because they belong to the police force FIR No: 235/16 State v. Ravinder @Lado Page No.30/36 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. Such reliable and trustworthy statement can form the basis of conviction. Rather than referring to various judgments of this Court on this issue, suffices it to note that even in the case of Girja Prasad (supra), this Court noticed the judgment of the Court in the case of Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217, a judgment pronounced more than half a century ago noticing the principle that the presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds therefor. This principle has been referred to in a plethora of other cases as well. Some of the cases dealing with the aforesaid principle are being referred hereunder.
23. In Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Court held as under: In our opinion no infirmity attaches to the testimony of the police officials, merely because FIR No: 235/16 State v. Ravinder @Lado Page No.31/36 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."
24. In the case titled as Jawahar vs State dated 23.03.2007, the Hon'ble Delhi High Court observed. "As far as non association of public witnesses at the time of recovery is concerned, I consider FIR No: 235/16 State v. Ravinder @Lado Page No.32/36 that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjournments are specifically taken by counsels for accused persons, when witnesses are present, just to see that witnesses get harassed by calling them time and again. The excuses normally given in the courts are : the counsel having urgent personal work, left the court; death of some near relatives etc; the counsel being busy in arguing other matter in other court or FIR No: 235/16 State v. Ravinder @Lado Page No.33/36 cross examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witness cannot be rejected on the ground that they are official witnesses".
25. Therefore the aforesaid judgments clearly and categorically lays down a rule that the conviction can be based on the testimonies of police witnesses provided that they are reliable and trustworthy and in the present cases already discussed there is nothing on record to discredit the testimonies of police witnesses.
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26. In a criminal trial the prosecution has to prove the guilt of the accused beyond reasonable doubts. However the Delhi Excise Act under which the accused is being prosecuted in the present case relaxes this law by providing in section 52 of the Act that 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.
27. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, it is held that the prosecution has successfully proved the alleged offences under Section 33/38/58 Delhi Excise Act against the accused Ravinder @ Lado beyond reasonable doubt. Accordingly, the accused Ravinder @Lado is hereby convicted under Section 33/38/58 Delhi Excise Act,2009.
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28. A copy of this judgment is supplied free of cost to the convict.
29. Let the convict be heard on the point of sentence today at 03.00 P.M. Dictated & Announced (Aakash Sharma) in Open Court MM-08/West/Delhi On the 29th day of April, 2022 29.04.2022.
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