Delhi District Court
State vs . Karan on 8 April, 2019
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MAGISTRATE-01 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.27/17
PS Lahori Gate
State Vs. Karan
U/s 33 Delhi Excise Act
CIS No.9837/17
CNR No. DLCT-02-016723/17
JUDGMENT
(a) Sr. No. of the Case 9837/17
(b) Date of offence 10.03.2017
(c) Complainant HC Ajeet Kumar
(d) Accused Karan S/o. Sh. Neeraj, R/o. Jhuggi DRP
Line, Pul Mithai, Lahori Gate, Delhi.
(e) Offence 33 Delhi Excise Act
(f) Plea of accused Pleaded Not guilty
(g) Date of Institution 17.07.2017
(h) Final Order Acquitted
(i) Date when judgment was 08.04.2019
reserved
(j) Date of judgment 08.04.2019
1. The present FIR was registered at PS Lahori Gate against the accused namely Karan for the offence U/s 33 Delhi Excise Act.
2. The allegations against the accused are that on 10.03.2017, at about 06:05 pm, beneath Pull Mithai, DRP Line, Lahori Gate, Delhi accused was found in possession of 150 quarter bottles without any license, permit or pass and in contravention of the FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.1 of 13 notification issued by Delhi Govt and thereby committed an offence punishable under section 33 Delhi Excise Act.
3. After completion of the investigation, charge-sheet was filed and the accused was supplied with copies of challan alongwith annexures in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for the offence u/s 33 Delhi Excise Act was put to the accused vide order dated 03.11.2017 to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, prosecution has examined 3 witnesses.
5. PW-1 is HC Ajeet Kumar, who deposed that On 10.03.2017, he was posted at PS Lahori Gate as HC, that he was on patrolling duty along with Ct. Deepak at DRP Line, that at about 6:05 pm, while patrolling, when he reached at DRP Line on passage beneath pull Mithai, they saw one person was taking one bulky white colour plastic sack bag on his shoulder towards DRP Line Jhuggi, that on seeing them in uniform, he took turn and started moving swiftly, that on suspicion, they chased that person and after 10-15 feet, they apprehended that person whose name after interrogation was revealed as Karan, that they asked him about the content of the plastic back, however, he did not give any satisfactory reply, thereafter, they checked the plastic sack bag and it was found containing illicit liquor having the label of "Raseela Santra Masaledar Sharab for sale in Haryana only", that he telephonically informed the matter to the DO, that after sometime, ASI Jitender reached at the spot, that he handed over that person along with the recovered illicit liquor to the IO, that IO requested 3-4 passersby to join the present investigation, but none of them agreed and they all left the spot without disclosing their names and addresses, that IO checked plastic sack bag and counted the quarter bottles of illicit liquor, that there were total 150 quarter bottles of 180 ml each of illicit liquor bearing the label of " Raseela Santra Masaledar Desi FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.2 of 13 Sharab for sale in Haryana only, that IO separated three bottles as sample from the sack bag and the remaining 147 quarter bottles were put in the same bag, that all the 3 sample bottles were put in one plastic polythene bag and the mouth of the bag was tied with white cloth and sealed with the seal of 'JK' and plastic sack bag containing the remaining 147 bottles was also sealed separately with the seal of 'JK', that IO filled form No.M-29 at the spot and case property was seized vide seizure memo Ex.PW1/A, that seal after use was handed over to Ct. Deepak vide memo Ex. PW-1/A, that IO recorded his statement Ex. PW-1/B, that IO prepared rukka and handed over the same to Ct. Deepak with direction to take the same to PS for getting the FIR registered, that IO prepared the site plan at his instance Ex.PW-1/C, that after sometime, Ct. Deepak returned back to the spot along-with original rukka and original FIR and handed over to ASI Jitender for further investigation, that IO recorded the disclosure statement of accused Ex.PW-1/D, that accused was arrested vide arrest memo Ex.PW-1/E and his personal search was conducted vide memo Ex.PW-1/F, that he along with the IO, Ct. Deepak, accused and case property return back to the PS, that the case property was deposited in the malkhana and accused was lodged in the police lockup after his medical examination, that IO recorded his statement in this regard. Thereafter, MHC(M) Lahori Gate appeared and apprised the Court that the case property has been confiscated vide order dated 18.05.2018 of Asst. Commissioner Excise and produced the copy of the order regarding confiscation of the case property recovered in the present matter, that he also produced the copy of DD No.38-A dated 09.06.2018 vide which the case property was destroyed duly attested and also photograph of the same along with the certificate, that the order of confiscation is mark-'A', that order of destruction is mark B, DD No.38-A is mark-C, photograph is Ex. PW-1/G (colly), that certificate is marked as Mark D, that MHC(M) also produced one sample quarter liquor bottle taken out from the case property at the time of destruction having FIR no. mentioned on the same. Bottle is duly filled with liquor, that one bottle having label "Falcon's Santra Masaledar Desi Sharab for sale in Haryana only" is shown to the witness, that case property is Ex.P-1.
FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.3 of 13
6. In the cross examination PW-1 deposed that he left the PS in the morning after briefing, however, he do not remember the exact time. He admitted that he has not sign the DD regarding his departure from the PS, that spot is a crowded area and several jhuggies were also situated and people were also coming and going from there, that no notice was served upon the persons who refused to join the investigation, that no person was called from the nearby jhuggis to join the investigation, that no photographs of the case property was taken at the spot, that seizure memos and site plan were prepared in one go and no addition or alteration made in the same, that first IO prepared the seizure memos and form M-29 and thereafter the rukka. He denied that no recovery was effected from the spot and accused was not present at the spot and he was falsely implicated in the present case and lifted from his house and case property was planted upon the accused, that all the proceedings were carried out while sitting in the PS, that he is deposing falsely.
7. PW-2 is ASI Rajinder Kumar, who deposed that on 31.03.2017, he was assigned with the investigation of the present case, that he received the file from MHC(R) and collected the report from the Excise Lab, that after completion of investigation he filed chargesheet in the Court.
8. In the cross examination, PW-2 denied that he had not been assigned the investigation of the present case. He admitted that he has no order regarding the same. He denied that he is deposing falsely.
9. PW-3 is ASI Jitender Kumar, who deposed that on 10.03.2017, he was posted at PS Lahori Gate as ASI, that on that day, DD No. 35-A Ex. PA-3 was assigned to him, that after receiving the DD No. 35-A, he reached at the spot where HC Ajit and Ct. Deepak along with one person and the recovered case property were already present there, that HC Ajit handed over the accused along with the recovered case property to him, that he requested 3-4 passersby to join the present investigation, but none of them agreed and they all left the spot without disclosing their names and addresses, that he FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.4 of 13 checked plastic sack bag and counted the quarter bottles of illicit liquor, that there were total 150 quarter bottles of 180 ml each of illicit liquor bearing the label of " Raseela Santra Masaledar Desi Sharab for sale in Haryana only", that he separated three bottles as sample from the sack bag and the remaining 147 quarter bottles were put in the same bag, that all the sample bottles were put in one plastic polythene and its mouth was tied with white cloth and sealed with the seal of 'JK' and plastic sack bag containing the remaining 147 bottles was also sealed separately with the seal of 'JK', that he filled form No.M-29 Ex. PW-3/A and case property was seized vide seizure memo Ex.PW-1/A, that seal after use was handed over to Ct. Deepak vide memo Ex. PW-1/A, that he recorded statement of HC Ajit Ex. PW-1/B and prepared rukka Ex. PW-3/B and handed over the same to Ct. Deepak with direction to take the same to PS for getting the FIR registered, that he went to the PS along with the rukka, that he prepared the site plan at the instance of HC Ajit Ex.PW-1/C, that after sometime, Ct. Deepak returned back to the spot along-with original rukka and original FIR and handed over to him for further investigation, that he recorded the disclosure statement of accused Ex.PW-1/D, that accused was arrested vide arrest memo Ex.PW-1/E and his personal search was conducted vide memo Ex.PW-1/F, that he along with the HC Ajit, Ct. Deepak, accused and case property return back to the PS, that the case property was deposited in the malkhana and accused was lodged in the police lockup after his medical examination, that he recorded the statements of witnesses in this regard, that on 21.03.2017, he sent the above said samples to the Excise Lab for Chemical Examination through Ct. Deepak vide RC No. 21/21/17, that accordingly, he took the sample to the Lab and deposited the same in the Excise Lab and obtained the receipt of the same and deposited the receipt with the MHC(M), that till the time, the sample were handed over to Ct. Deepak, they were intact and were not tampered with, that he was transferred from the PS and accordingly, he has deposited the present case file with the MHC(M) and he was discharged from the present case, that case property is Ex.P-1.
10. In the cross examination, PW-3 admitted that he has not signed the DD regarding his FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.5 of 13 departure from the PS, that spot is a crowded area and several jhuggis were also situated and people were also coming and going from there, that no notice was served upon the persons who refused to join the investigation, that firstly, he prepared the seizure memo, form M-29 and thereafter the rukka, that no person was called from the nearby jhuggis to join the investigation, that no photographs of the case property was taken at the spot, that seizure memos and site plan were prepared in one go and no addition or alteration made in the same. He denied that no recovery was effected from the spot and accused was not present at the spot and he was falsely implicated in the present case and lifted from his house and case property was planted upon the accused, that all the proceedings were carried out while sitting in the PS, that he is deposing falsely.
11. It is pertinent to note that vide separate statement dated 06.04.2019, accused has admitted the genuineness and correctness of FIR Ex. PA-1, endorsement on rukka Ex. PA-2, DD No. 33-B dated 10.03.2017 Ex. PA-3, Report of chemical examiner dated 07.04.2017 Ex. PA-4, RC No. 21/21/17 Ex. PA-5 and Entry in register no. 19 Ex. PA-6. Accordingly, witnesses namely namely Brijender (Chemical Examiner), Amit Paul (Asst. Chemical Examiner), DO/ASI Harshay, MHC(M) HC Surender were dropped from the list of witnesses vide order dated 06.04.2019.
STATEMENT OF ACCUSED
12. PE was thereon closed by the Court and statement of accused was recorded u/s 281/313 CrPC vide order dated 08.04.2019, wherein the accused denied all the incriminating evidence against him and stated that he has been falsely implicated in this case. Since, the accused did not wish to lead any defence, hence, matter was fixed for final arguments straightaway.
13. Final arguments heard. File perused.
FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.6 of 13 APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
14. In the case in hand the accused Karan is charged for the offence u/s 33 Delhi Excise Act.
15. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant/ state in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed as follows:-
16. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. Perusal of the record shows that the place of apprehension of accused alongwith illicit liquor was a public place and public persons were present there and several jhuggies were situated near the spot despite that no efforts made by the IO to join the public/independent witness in the case in hand. It is apparent from the testimony of PWs that all the proceedings regarding seizure and sealing of case property was done by police officials who were posted in the same police station and not by any independent witness which makes it highly probable that the entire proceeding were conducted at the police station, that the case property was tampered with and that the alleged recovery was planted upon the accused at the police station.
17. PWs have categorically deposed about presence of independent public witnesses however, no sincere efforts have been made to join them in investigation.
FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.7 of 13
18. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining independent witnesses.
19. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
20. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that place was residential area and one or two persons from the locality could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the public persons had declined to join the raiding party, the police could have later on taken legal action against such persons 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".
21. In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.8 of 13
22. Considering the aforesaid observations made by the Higher Courts, the omissions /failure on the part of investigating agency to join independent public witnesses creates reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
23. Furthermore, the testimony of PWs shows that seizure memo of illicit liquor Ex. PW-
1/A Form M-29 Ex. PW-3/A were prepared before sending the rukka. However, perusal of the said document clearly shows that the FIR number and other particulars of the present case are mentioned on the said document. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those document which were prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
24. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.9 of 13 proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
25. Further, perusal of the record reveals that witnesses has not filed DD entry of their arrival and departure. Prosecution witnesses have failed to prove documentary evidence or the DD entries to show their movement from the police station for patrolling or investigation of the case.
26. Regarding the value of making DD entry it is worth mentioning that as per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under :-
22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
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 FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.10 of 13 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 maintained.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 19872 (2) Crimes 29 the Hon'ble Delhi High Court "Wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the court 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."
27. In the present case, the above said provision appears to have not been complied with by prosecution. These omissions on the part of the prosecution create doubt on the version that the accused was personally searched / arrested with the alleged liquor at the spot by the said PWs.
28. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.11 of 13 prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
29. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
30. It is pertinent to mention here that investigation of the IO is silent regarding the source of liquor and IO had not inquired from the accused about the source of liquor recovered from the accused for the reasons best known to him.
31. Furthermore, it is admitted fact that neither IO has called any photographer at the spot for capturing the photographs of illicit liquor nor he himself clicked any photographs at the spot, thereby reflecting bad investigation.
32. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, non joining and examination of independent public witnesses, the prosecution has failed to establish its case against the accused beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.12 of 13 Karan stands acquitted of the offence u/s 33 Delhi Excise Act accordingly.
33. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
34. File be consigned to the record room after due compliance. Digitally signed SHILPI by SHILPI JAIN Date:
Announced and Signed in the Open Court JAIN 2019.04.06
17:35:28 +0530
on 08.04.2019 (Shilpi Jain)
MM-01(Central)/THC/Delhi
08.04.2019
FIR No. 27/17 PS Lahori Gate State Vs. Karan Page no.13 of 13