Delhi District Court
State vs Ravinder @ Sunny on 11 September, 2024
IN THE COURT OF Ms. NEHA GUPTA SINGH,
CHIEF JUDICIAL MAGISTRATE,
NORTH DISTRICT, ROHINI, DELHI
State VS. Ravinder @ Sunny
FIR No : 17/2018
P. S. : Alipur
U/s : u/s 33 Delhi Excise Act
JUDGMENT
Registration No. of the case : 3831/18
Date of its institution : 11.07.2018
Name of the complainant : HC Jai Bhagwan
Date of Commission of offence : 09.01.2018
Name of the accused persons : Ravinder @ Sunny
S/o Sh. Jeet Singh
R/o H. No. 162, near Bus
Stand, Village Hamidpur,
Delhi.
Offence complained of : U/s 33 Delhi Excise Act
Plea of accused : pleaded not guilty
Case reserved for orders : 03.09.2024
Date of judgment : 11.09.2024
Final Order : Accused is acquitted for
offence u/s 33 Delhi Excise
Act
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. The prosecution story in brief is that on 09.01.2018 at about 08.30 p.m near DDR Dharamkanta, HMR College Road, Hamidpur, Delhi, accused was found carrying one CC No. 3831/18 State Vs. Ravinder @ Sunny FIR No. 17/18 PS Alipur 1 of 9 plastic katta which was found having two carton boxes with each carton box having 50 quarter bottles each of illicit liquor of brand Falcon's Santra Masaledar Desi Sharab for sale in Haryana only as described in seizure memo Mark A without any permit or licence and thereafter the present FIR was registered u/s 33 of Delhi Excise Act.
2. Investigation was completed and charge sheet was filed under section u/s 33 Delhi Excise Act. Cognizance was taken and accused were summoned.
3. Copy of charge sheet and documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused Ravinder @ Sunny was framed under section u/s 33 of Delhi Excise Act. Accused pleaded not guilty and claimed trial.
5. In order to bring home the guilt of the accused, prosecution examined following witnesses.
6. PW-1 ASI Jai Bhagwan deposed that on 09.01.2018, he was posted as Head Constable at PS Alipur and on that day at about 08:30pm, when he was coming from his Beat to Village Hamidpur, and reached at near HMR College road Village Hamidpur, he saw one person coming from the side of DDR Dharam Kanta and he was found carrying on plastic sack on his shoulder. He further deposed that he asked him about the said CC No. 3831/18 State Vs. Ravinder @ Sunny FIR No. 17/18 PS Alipur 2 of 9 sack but he did not give any satisfactory reply and on suspicion, he checked his said sack and it was found containing illicit liquor filled in two carton boxes inside the said sack and the said person revealed his name as Ravinder @ Sunny. He further deposed that he shared the said information at PS Alipur and after sometime, ASI Narender Kumar came at the spot and he produced the case property and accused before him, who made inquiries from him and recorded his statement i.e. Ex. PW-1/A. He further deposed that ASI Narender Kumar made inquiry from accused and checked the said sack and it was found 50 quarter bottles leveled as Falcon Santra Masaledar Desi Sharab for sale in Haryana only in each carton box i.e. total 100 quarter bottles of illicit liquor. IO took one quarter bottle from each carton box as samples and wrapped the said samples in white cloth and sealed with the seal of NK. Thereafter, remaining case property were kept in same sack and tied it with a piece of white cloth and sealed with the seal of NK. IO had given serial no.1 A & 2 A to the sample bottles and given carton boxes serial no. 1 & 2. He further deposed that IO had also filled Form M-29 and appended the seal thereupon. IO also handed over him the seal. IO seized the case property i.e. Ex. PW-1/B. He further deposed that IO prepared rukka and same was handed over to him for registration of the FIR. Accordingly, he left for PS and came back at the spot after got lodging the FIR and same was handed over to the IO. IO also prepared site plan at his instance i.e. Ex. PW-1/C. He further deposed that IO had also arrested the accused and conducted his personal search vides memos Ex. PW-1/D and Ex. PW-/E. IO also recorded the disclosure statement of accused vide memo Ex. PW-1/F. Thereafter, IO shifted the case property in malkhana and accused was kept in lockup after his medical CC No. 3831/18 State Vs. Ravinder @ Sunny FIR No. 17/18 PS Alipur 3 of 9 examination conducted. IO also recorded my statement. He also identified the case property in photograph and the said photograph is Ex. P-1. GD No. 25A dated 01.02.2024 is also shown to him through which information regarding destruction of sample case property due to falling of roof, is also placed on record and the said GD Ex. P-2 while Confiscation Report dated 22.08.2022 vide Confiscation order No.31325/2022/5849 of case property vide GD No. 53A dated 17.12.2022 is Ex. P-3 (colly.). He also correctly identified the accused in the court. This witness is duly cross examined by Ld counsel for accused.
7. PW-2 ASI Narender deposed that on 09.01.2018, he was posted as ASI at PS Alipur and on that day, he received an information vide DD No. 35 A regarding apprehending of one person with illicit liquor at near DDR Dharamkanta, HMR college Road, Village Hamidpur, Delhi. It was about 8:55 pm and he went there, where HC Jai Bhagwan met him and he produced one person, who revealed his name as Ravinder @ Sunny. He further deposed that HC Jai Bhagwan produced the illicit liquor, recovered from the accused which was kept in a plastic sack. He made inquiries from HC Jai Bhagwan and recorded his statement i.e. Ex. PW-1/A. He further deposed that thereafter, he opened the said plastic sack and took out the whole case property and it was found 2 carton boxes and these were further checked and found 50 quarter bottles each labeled as Falcon Santra Masaledar Deshi Sharab for sale in Haryana. He took out one sample from each carton and wrapped the said samples in white cloth and sealed it with CC No. 3831/18 State Vs. Ravinder @ Sunny FIR No. 17/18 PS Alipur 4 of 9 the seal of NK and he put the remaining case property in the same plastic sack and tied it with a rope and sealed it with the seal of NK. He filled up Form M-29 in this respect which is Ex. PW-2/A and also appended the seal thereupon. He further deposed that he seized the case property vide seizure memo i.e. Ex. PW-1/B. Thereafter, he prepared rukka i.e. Ex. PW-2/B and same was handed over to HC Jai Bhagwan for registration of the FIR, who left for PS and came back at the spot after got lodging the FIR and same was handed over to him. He further deposed that he prepared site plan at the instance of HC Jai Bhagwan i.e. Ex. PW-1/C. Thereafter, he arrested accused and his personal search was conducted vide memos Ex. PW-1/D and Ex. PW-1/E. Accused also made his disclosure statement i.e. Ex. PW-1/F. He further deposed that he shifted the case property in malkhan and accused was kept in lockup after getting his medical examination conducted. He recorded supplementary statement of HC Jai Bhagwan and thereafter, he sent samples to Excise laboratory, Vikas Bhawan through Ct. Dharmender and he recorded his statement and he received the Excise report and put it with the record. He recorded statements of witnesses and after completion of the investigation, he filed the charge sheet before the concerned court. He correctly identified the accused in the court. The case property has already been destroyed by the order of the Competent Authority and the photograph alongwith relevant copy of order are already on record and exhibited as Ex. P-1, Ex. P-2 and Ex. P-3 (colly.) in the testimony of CC No. 3831/18 State Vs. Ravinder @ Sunny FIR No. 17/18 PS Alipur 5 of 9 PW-1. He is duly cross examined by Ld counsel for the accused.
8. During trial, statement of accused was recorded u/s 294 Cr.PC, wherein he and did not dispute the deposit of sample to FSL, Rohini, Delhi and relevant entry of register no. 19 & 21, the present FIR No. 17/2018 and Certificate u/s 65-B of Indian Evidence Act, DD entry Nos. 33A, 35A dated 09.01.2018 of PS Alipur, chemical examiner report.
9. Thereafter, prosecution evidence was closed by the order of the court. Separate statement of accused was recorded under section 313 Cr.P.C and all incriminating evidences were put to him, to which he stated that he has been falsely implicated in the present matter. He did not wish to lead defence evidence.
10.I have heard the arguments addressed by the Learned APP for the State and the Ld. counsel for accused and carefully perused the record.
11.It is argued by Ld. APP for the State that the State has proved its case beyond reasonable doubt and that accused was found in possession of illicit alcohol without permit and the accused is registered owner of the vehicle used to carry illicit liquor. It is further stated that there are ocular and documentary evidence on record to bring home the guilt of the accused.
CC No. 3831/18 State Vs. Ravinder @ Sunny FIR No. 17/18 PS Alipur 6 of 9
12.Per contra, it is argued by the Ld. counsel for the accused that non-joinder of public witness despite availability cast shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused he is falsely implicated in present case. There are no independent evidence against them.
13.It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defense of the accused. Accused are entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
14.In present case, prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened at 08:30 pm at thickly populated area and it is admitted fact that public persons were available at the spot. It was held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly, it was CC No. 3831/18 State Vs. Ravinder @ Sunny FIR No. 17/18 PS Alipur 7 of 9 held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
15.In present case, IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were admittedly present. Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
16.In present case, seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the CC No. 3831/18 State Vs. Ravinder @ Sunny FIR No. 17/18 PS Alipur 8 of 9 case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
17. In light of above discussion, it cannot be said that the State has proved its case beyond reasonable doubt. In the absence of any cogent evidence against accused, accused Ravinder @ Sunny is acquitted for offence under section 33 of Delhi Excise Act. Case property be confiscated to the state and the same be destroyed.
Announced in the open court NEHA Digitally by NEHA signed On this 11th September, 2024 GUPTA SINGH GUPTA Date:
SINGH 2024.09.11 14:58:28 +0530 (NEHA GUPTA SINGH) Chief Judicial Magistrate North District Rohini Delhi CC No. 3831/18 State Vs. Ravinder @ Sunny FIR No. 17/18 PS Alipur 9 of 9