Delhi District Court
State vs . Nanak Chand @ Sonu on 2 March, 2015
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE (WEST) 03,
TIS HAZARI COURTS, DELHI.
FIR No.334/2011
PS - Nangloi
U/s - 33 of The Delhi Excise Act, 2009
State Vs. Nanak Chand @ Sonu
Unique Case ID No.02401R0180172012
J U D G M E N T
(a) Sr. No. of the case 9/2/12
(b) Date of offence 22.11.2011
(c) Complainant Constable Satyawan, No.1207W, PS Nangloi, New Delhi.
(d) Accused persons Nanak Chand @ Sonu S/o Sh. Amar Singh R/o C - 317, Camp No.02, Nangloi, New Delhi.
(e) Offence(s) Under Section 33 of The Delhi Excise Act, 2009.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 29.02.2012
(i) Date when judgment Not reserved
was reserved
(j) Date of judgment 02.03.2015
1. The allegations against accused are that on 22.11.2011 at about 09:35 am at H. No.C317, Camp No.02, Nangloi, New Delhi within the jurisdiction of PS Nangloi, accused was found in possession of 48 half bottles of 360 ml each of country liquor labeled with label of Bounded Liquor Delhi Excise without any license, permit or pass FIR No.334/2011 Page No. 1 of 9 and in contravention of the notification issued by Delhi Government. According to prosecution, accused thereby committed offence punishable under Section 33 of The Delhi Excise Act, 2009.
2. After completion of investigation, chargesheet was filed. Copy of the challan was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for the offence punishable under Section 33 of The Delhi Excise Act, 2009 was framed against the accused vide order dated 14.01.2013 to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Prosecution adduced evidence in support of its case. In this matter, PW1 Head Constable Pradeep Kumar has proved and exhibited computerized copy of FIR Ex.PW1/A, D. D. Entry 24A Ex.PW1/B and certificate Ex.PW1/C under Section 65(B) of The Indian Evidence Act, 1872. PW1 was examined, crossexamined and was discharged.
4. PW2 Constable Satyawan has deposed that on 22.11.2011, he was posted at PS Nangloi. When he was on patrolling duty in his area, he saw in a street two cartoons (made of gatta) lying near the Rehri parked near the H.No. C317, Camp No. 02, Nangloi and the accused was standing near those cartoons. He went there and made the inquiry from the accused about those cartoons, but, he did not give any satisfactory answer. In FIR No.334/2011 Page No. 2 of 9 the meantime, Head Constable Ravinder also came there who was also on patrolling at that time. He handed over the custody of accused and those two cartoons to Head Constable Ravinder who checked those cartoons and found them containing total 48 half bottles of country made liquor, however, he does not remember the exact description of bottles due to the lapse of time. Thereafter, Head Constable Ravinder took out one half bottle from each cartoon containing country made liquor as a sample and the remaining liquor was seized in their respective cartoons with the seal of 'AK'. Thereafter, samples were also seized with the seal of 'AK' and first cartoon was marked as A1 and second as B2 and samples were marked as 1B and 2B respectively. Thereafter, M29 form was also filled by the IO and the impression of seal was taken on the form. Public persons were also requested to join investigation by Head Constable Ravinder when he started investigation in the present matter, but, none of them agreed and left the place without disclosing their names and addresses. After sealing the case property, seal was handed over to him and Rukka was prepared on his statement Ex.PW2/B. IO handed over the Rukka to him. He went to the police station, got the case registered, after registration of FIR, came back at the spot and handed over the original Rukka and copy of FIR to Head Constable Ravinder. IO prepared site plan Ex.PW2/C at his instance. Thereafter, accused was arrested vide Ex.PW2/D. Personal search memo of accused was conducted vide Ex.PW2/E. During custody, disclosure of accused was recorded by the IO vide FIR No.334/2011 Page No. 3 of 9 Ex.PW2/F. Thereafter, accused was taken to the police station with the case property and case property was deposited in the malkhana. He correctly identified the accused and case property Ex.P1 (Collectively) in the Court. PW2 was examined, cross examined and was discharged.
5. PW3 Head Constable Ravinder has deposed that on 22.11.2011, he was posted at PS Nangloi as Head Constable and he was on patrolling duty in beat area No. 03 and 04. When he reached at CBlock, Camp No.02, he met with Constable Satyawan who was with the accused. He made the inquiry from Constable Satyawan regarding the accused. Constable Satyawan disclosed that accused was in the possession of two cartoons filled with liquor bottles. He checked both cartoons and found both cartoons containing half bottles of liquor having label of 'Halchal desi Masaledar Sharab' of 'Delhi Excise'. On counting, each cartoon contained 24 half bottles. He requested the public persons to join the investigation after disclosing the fact and circumstances of the present case, but, none of them agreed and all left the spot without disclosing their names and addresses. He checked the first cartoon and found it containing 24 half bottles of country made liquor having label 'Halchal Desi Masaledaar Sharab' and out of these 24 half bottles, 13 bottles were having inscription Royal Stag on the bottle itself and 11 bottles were plane. Out of this cartoon, he kept aside one bottle as a sample and remaining liquor bottles were seized in the same gatta cartoon with the seal of 'AK' and FIR No.334/2011 Page No. 4 of 9 sample was seized separately and was numbered as 1A and the gatta cartoon was number as A1. Thereafter, he checked the 2nd gatta cartoon and found it containing 24 half glass bottles of 375 ml each containing country made liquor having label 'Halchal Desi Masaledaar Sharab'. Out of the 24 bottles 6 bottles were having inscription officer choice on the bottle, 9 bottles having inscription imperial blue and 8 bottles were plane. Out of this 2nd gatta cartoon, he also kept one bottle aside as a sample and the remaining liquor was seized in the same gatta cartoon with the seal of 'AK' and was numbered as B2. Sample bottle was seized separately with the seal of 'AK' and numbered as 2B. Seizure memo Ex.PW2/A was prepared. Form No.29 Ex.PW3/A was also filed at the spot. Thereafter, seal was handed over to Constable Satyawan. He recorded the statement Ex.PW2/B of Constable Satyawa. Thereafter, he made endorsement on the said statement Ex.PW3/B and handed over the same to Constable Satyawan for registration of FIR. Constable Satyawan immediately went to the police station, however, he remained at the spot with the accused and case property. After some time Constable Satyawan came back at the spot and handed over copy of FIR with original Rukka to him. Thereafter, he prepared the site plan Ex.PW2/C at the instance of Constable Satyawan. Thereafter, he arrested accused vide Ex.PW2/D. Personal search of the accused was conducted vide Ex.PW2/E. During custody, disclosure statement Ex.PW2/F of accused was recorded. Thereafter, medical examination of the accused FIR No.334/2011 Page No. 5 of 9 was got conducted at SGM hospital. Case property was deposited in police malkhana. He recorded the statement of the witnesses. Next day, accused was produced before the Court. Later on, samples were sent to the excise lab through Constable Ajit. He recorded the statements of Constable Ajit and Head Constable Lal Singh. FSL report Ex.PW3/C was collected. After completion of the investigation, charge sheet was prepared and was filed by him before the Court with all the material and documents collected during investigation. He correctly identified the accused and case property Ex.P1 in the Court. PW3 was examined, crossexamined and was discharged.
6. On 27.10.2014, further prosecution evidence was closed. STATEMENT OF ACCUSED
7. After closure of prosecution evidence, statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating evidence was put to him. He denied all the allegations and stated that he is innocent and has not committed any offence. Accused person opted to lead defence evidence. DEFENCE EVIDENCE
8. DW1 has deposed that he used to work with a person who manufacture sleepers in a street near to street of accused. On one 22 nd of November at about 09:00/09:15 am, the year of which he does not remember, he was passing through the FIR No.334/2011 Page No. 6 of 9 street of accused, he saw two police officials knocking at the door of accused and asking for accused. They called accused outside and then started abusing him. When, he asked them why they were doing so then they also abused him. He ran away after said abuse. DW1 was examined, crossexamined by Ld. APP for the State and was discharged.
9. DW2 Kewal Krishan has deposed that he runs a meat shop in Sultan Puri and on 22.11.2011 at about 09:00/09:15 am, he was leaving his house for his shop. Two police officials had made accused to sit in a vehicle. He asked why they have made him to sit in the vehicle. On this, police officials threatened him that they would also take him along with the accused. Police officials also told him that they have recovered liquor from a rehri, but, he did not see any liquor there. DW2 was examined, cross examined by Ld. APP for the State and was discharged.
10. On 11.02.2015, accused closed his defence evidence vide separate statement and thereafter, matter was fixed for final arguments.
11. Final arguments from both sides heard. Record is perused. APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
12. In the present case, accused person has been charged for committing an offence punishable under Section 33 of The Delhi Excise Act, 2009. In this matter, PW2 has deposed that he saw two cartoons lying near the rehri and accused was standing near those cartoons. It is not clear from the evidence of PW2 and PW3 as to whether the said FIR No.334/2011 Page No. 7 of 9 rehri belonged to accused or to someone else. It is also not the case of prosecution that the accused was selling the said liquor at that time. The seal used in this matter as deposed by both PW2 and PW3 is of 'AK'. Neither name of PW2 nor the name of PW3 correspond with the alleged sealed used of 'AK'. No satisfactory explanation has come on record as to how PW3 came in possession of seal of 'AK' and to whom the same belonged. The alleged seal after use, was never handed over to any independent person, therefore, tempering with case property while it remained in PS cannot be ruled out. Reliance can be placed upon judgment of Hon'ble High Court of Delhi cited as 1996 JCC 497 in this regard. Case property was first produced before this Court on 10.03.2014 and it was observed that case property has been produced in two cartoons with broken seals. Both cartoons were in open condition and case property can put into them or could be taken out from them without tempering with seals.
In the case of "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that in the absence of any link evidence that the property deposited in the malkhana remained intact till brought before the Court, accused is entitled to benefit of doubt.
In the case of "Ayub Khan Vs. State" (Delhi Administration) ILR 1989 Delhi 467, it was observed as under : "Similarly, in the present case by not examining Malkhana Moharrir of the Police Station where the case property was kept, the prosecution has not been able to establish the chain to FIR No.334/2011 Page No. 8 of 9 prove that the case property after being seized remained intact without being tampered with throughout the particularly when it remained in the Malkhana. Hence, for this short reason, it must be held that the appellant could not have been convicted of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act."
Inspite of presumption being provided under Section 52 of The Delhi Excise Act, 2009, considering the circumstances/proceedings of recovery, the state of the case property in which it was produced before this Court and the fact that no independent person was joined in the investigation, there remains many doubts as to whether in fact the said recovery was effected from the accused or not. The accused is entitled to benefit of doubt in totality of circumstances.
13. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given benefit of doubt in this matter. Accused person namely Nanak Chand @ Sonu is accordingly, acquitted for the offence punishable under Section 33 of The Delhi Excise Act, 2009. Case properties be confiscated to the State and be destroyed after expiry of period of appeal.
Announced in open Court on March 02, 2015.
(HARVINDER SINGH) M.M.03/THC (WEST), Delhi/02.03.2015 FIR No.334/2011 Page No. 9 of 9