Delhi District Court
State vs . Mukesh Kumar on 19 October, 2022
IN THE COURT OF SH. DEEPAK KUMARI,
ACMM (NORTH WEST), ROHINI COURTS, DELHI
STATE VS. MUKESH KUMAR
FIR NO. 974/15
PS: Begum Pur
U/S: 33 of DELHI EXCISE ACT
Case ID No. : 2410/2017
Date of commission of offence : 11.09.2015
Date of institution of the case : 22.04.2017
Name of the complainant : CONST. PRAVIN
No. 1652/OD,
PS Begum Pur,
Delhi.
Name of accused and address : MUKESH
KUMAR
S/o Kalu Ram,
R/o B 4/120, Sec
20, Rohini, Delhi.
Offence complained of or proved : U/s 33 of Delhi Excise
Act
Plea of the accused : Pleaded not guilty
Date on which reserved for judgment: 19.10.2022
Date of announcing of judgment : 20.10.2022
Digitally
Final Order : ACQUITTED
signed by
DEEPAK
DEEPAK KUMAR
KUMAR Date:
2022.10.20
17:45:15
+0530
CASE No. 2410/2017
FIR No. 974/15
PS- Begum Pur
State Vs. Mukesh Kumar page 1/11
JUDGEMENT
BRIEF REASON FOR DECISION:
1. The accused has been sent to face trial under Section 33 of Delhi Excise Act, on the allegations that on 11.09.2015 at about 03.30 pm, at about 03.30 pm at Sector 20 & 21 divider, near Nuri Masjid, Rohini, Delhi, within the jurisdiction of PS Begum Pur, accused was found in possession of illict liquor and thus accused thereby committed an offence punishable U/s 33 of Delhi Excise Act.
2. Charge for the offence U/s 33 of Delhi Excise Act was framed against the accused on 08.01.2020 to which he pleaded not guilty and claimed trial.
3. During prosecution evidence, three witnesses have been examined.
4. Vide separate statement recorded under Section 294 Cr.P.C, accused has not disputed the registration of FIR, report of Chemical Examiner and DD entry No. 53B dated 11.09.2015.
5. PW1 HC Parveen Bhati deposed that on 11.09.2015, he was posted as Ct. in PS Begumpur. On that day, he was patrolling and at about 03:30 pm, when he reached near the divider of Sector - 2021 and also near of Noori Maszid, Delhi. Digitally signed by DEEPAK DEEPAK KUMAR KUMAR Date:
2022.10.20 CASE No. 2410/2017 17:45:20 +0530 FIR No. 974/15 PS- Begum Pur State Vs. Mukesh Kumar page 2/11 he saw a person coming with the plastic bag on his head and on seeing him in police uniform, the person started walking at fast steps. He got suspicious about his conduct and therefore stopped him and checked the plastic katta which was found containing quarter bottles of illicit liquor. The name of the person was revealed as Mukesh Kumar/ accused. He informed duty officer and after sometime, IO/ HC Kailash Chand along with Ct. Narender came at the spot. He handed over apprehended person and illicit liquor to IO. IO requested 45 public persons to join investigation but none of them agreed to join the same and left without disclosing their names and addresses. IO recorded his statement Ex. PW1/A. IO checked the plastic katta and found it having 78 quarter bottles of 'Rasila Santra Masaledar Sharab'. Two samples were taken out and thereafter, samples as well as remaining case property were separately sealed with the seal of 'KCM'. IO filled up Form M29 at the spot. Seal after use was handed over to him. Case property was seized vide seizure memo Ex. PW1/B. Thereafter, IO prepared rukka and handed over to Ct. Narender for registration of FIR. After registration of FIR, he came back at the spot and handed over copy of FIR and original rukka to IO. Accused was not arrested by IO rather was bound down u/s 41(A) Cr.P.C. Thereafter, he along with IO, Ct. Narender and case property came back to Police Station where case property was deposited in Malkhana. He correctly identified Digitally signed by DEEPAK DEEPAK KUMAR the accused as well as case property Ex. P1. KUMAR Date:
2022.10.20 17:45:25 +0530 CASE No. 2410/2017 FIR No. 974/15 PS- Begum Pur State Vs. Mukesh Kumar page 3/11
6. PW2 SI Kailash Chandra deposed that on 11.09.2015, he was posted as HC in PS Begumpur. On that day, he along with Ct. Narender went to the spot i.e., near the divider of Sector - 20 21 and also near of Noori Maszid, Delhi. Ct. Parveen was present there along with oner person apprehended by him, namely Mukesh Kumar and Ct. Parveen handed over apprehended person and illicit liquor to him. He requested 45 public persons to join investigation but none of them agreed to join the same and left without disclosing their names and addresses. He recorded statement of Ct. Parveen Ex. PW1/A. Thereafter, he checked the plastic katta and found it having 78 quarter bottles of 'Rasila Santra Masaledar Sharab'. Two samples were taken out and thereafter, samples as well as remaining case property were separately sealed with the seal of 'KCM'. He filled up Form M29 at the spot which is Ex. PW2/B. Seal after use was handed over to Ct. Parveen. Case property was seized vide seizure memo Ex. PW1/B and site plan Ex. PW2/C was prepared. Thereafter, he prepared rukka PW2/A and handed over to Ct. Narender for registration of FIR. After registration of FIR, he came back at the spot and handed over copy of FIR and original rukka to him. Accused was not arrested and was bound down u/s 41(A) Cr.P.C. Thereafter, he along with Ct. Narender and Ct. Parveen and case property came back to Police Station where case property was Digitally signed by DEEPAK DEEPAK KUMAR deposited in Malkhana. Case property was sent by him to Excise KUMAR Date:
2022.10.20 17:45:29 +0530 CASE No. 2410/2017 FIR No. 974/15 PS- Begum Pur State Vs. Mukesh Kumar page 4/11 Laboratory and after some days received its report Ex. PW2/D. Finally, he prepared the chargesheet and put before the court. He also correctly identified the accused and case property Ex. P1.
7. PW3 HC Narender deposed that on 11.09.2015, he was posted as Ct. in PS Begumpur. On that day, he along with IO/HC Kailash went to the spot i.e., near the divider of Sector - 2021 and also near of Noori Maszid, Delhi. Ct. Parveen was present there along with one person apprehended by him, namely Mukesh Kumar and Ct. Parveen handed over apprehended person and illicit liquor to IO. IO requested 45 public persons to join investigation but none of them agreed to join the same and left without disclosing their names and addresses. IO recorded statement of Ct. Parveen. IO checked the plastic katta and found it having 78 quarter bottles of 'Rasila Santra Masaledar Sharab'.
Two samples were taken out and thereafter, samples as well as remaining case property were separately sealed with the seal of 'KCM'. IO filled up Form M29 at the spot. Seal after use was handed over to Ct. Parveen. Case property was seized vide seizure memo Ex. PW1/B and site plan was prepared by IO. Thereafter, IO prepared rukka and handed over to him for registration of FIR. After registration of FIR, he came back at the spot and handed over copy of FIR and original rukka to IO. Accused was not arrested by IO, rather he was bound down u/s DEEPAK 41 A Cr.P.C. Thereafter, he along with IO and Ct. Parveen and KUMAR Digitally signed by DEEPAK KUMAR Date: 2022.10.20 17:45:33 +0530 CASE No. 2410/2017 FIR No. 974/15 PS- Begum Pur State Vs. Mukesh Kumar page 5/11 case property came back to Police Station where case property was deposited in Malkhana. He correctly identified the accused as well as case property Ex. P1.
8. After the conclusion of Prosecution evidence, the entire incriminating evidence was put to accused in terms of Section 313 Cr.P.C wherein he denied the allegations and tendered explanation that nothing as alleged was recovered from his possession. He is innocent and has been falsely implicated in the present case. He has opted not to lead defence evidence.
9. I have heard the final arguments advanced by both the parties and also perused the record carefully. Now I proceed with the judgment.
Appreciation of evidence in the light of settled legal propositions.
10. It is a settled proposition of criminal law that prosecution has to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence. In order to prove its case, prosecution has to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof in a criminal trial throughout the trial is on the prosecution and it never shifts on to DEEPAK the accused. If any doubt arises, benefit of the same goes in KUMAR Digitally signed by DEEPAK KUMAR Date: 2022.10.20 CASE No. 2410/2017 17:45:38 +0530 FIR No. 974/15 PS- Begum Pur State Vs. Mukesh Kumar page 6/11 favour of accused. In the present case, accused has denied the allegations and tendered explanation that he had been falsely implicated and nothing as alleged was recovered from his possession.
11. PW1 HC Praveen Bhati, PW2 SI Kailash Chandra and PW3 HC Narender have deposed during their evidence that public persons were passing from the spot. Further stated that none of those have been cited as prosecution witness. This Court is conscious of the practical difficultly faced by investigating agency in joining the public persons in investigation because public is generally reluctant to participate in investigation. However, the record must reflect that IO had atleast made sincere efforts to join public witness. No such sincerity is seen in this case. Non joining of public witnesses brings the case of the prosecution under shadow of doubts. Had public witnesses witnessed the search, prosecution version would have been more authentic. This is not to say that testimony of police officials is not reliable but addition of public witnesses in search of accused would have made prosecution version more reliable. Reliance can be placed upon the judgment passed by Hon'ble Delhi High Court in case titled as Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), wherein it was observed that:
Digitally signed by "It is repeatedly laid down by this DEEPAK DEEPAK KUMAR KUMAR Date: Court that in such cases it should be 2022.10.20 17:45:42 +0530 CASE No. 2410/2017 FIR No. 974/15 PS- Begum Pur State Vs. Mukesh Kumar page 7/11 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 shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors 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."
12. Since all the witnesses are police personnels and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the view that chances of false implication cannot be ruled out.
Digitally signed by DEEPAK DEEPAK KUMAR KUMAR Date:
2022.10.20 17:45:46 +0530 CASE No. 2410/2017 FIR No. 974/15 PS- Begum Pur State Vs. Mukesh Kumar page 8/11
13. Moreover, as per the version of the prosecution, accused was found in possession of illict liquor as per seizure memo Ex. PW1/B without any license/ permit. Very surprisingly, no efforts whatsoever have been made by the prosecution to have any clue about the source from where the same was arranged by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the same.
14. Not only this, the case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence, tampering with the case property cannot be ruled out as the seal remained all along with the police officials. As per the case of the prosecution, the case property was sealed with the seal of 'KCM'. However, neither any handing over memo nor returning memo of the seal was prepared by IO. Thus, tampering can not be ruled out as sealed case property and accused were with the police officials till the time case property was deposited in Malkhana. From the testimonies of prosecution witnesses, it is clear that no efforts were made to hand over the seal after use to independent public person and hence, benefit of doubt is to be given to the accused. I am supported on this point by the judgment in the case of Saifullah Vs. State 1998 (1) C.C. Cases 497 (Delhi) and Abdul Gaffar Vs. State 1996 JCC 497 (Delhi).
Digitally
signed by
DEEPAK
DEEPAK KUMAR
KUMAR Date: CASE No. 2410/2017
2022.10.20
17:45:52
FIR No. 974/15
+0530 PS- Begum Pur
State Vs. Mukesh Kumar page 9/11
15. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. All the lapses in investigation, discussed herein above create a doubt on the very recovery of illicit liquor, without permit or legal license from the possession of accused. The lapses are material one and cannot be ignored. It is settled proposition of law that if the investigation suffers from taint, then the entire prosecution case becomes open to serious doubts and challenges. The material on record is insufficient to record a finding of guilt of the accused.
16. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The standard of proof is not preponderance of probabilities but proof beyond all reasonable doubts. It is well settled legal proposition that the benefit of doubt goes in favour of accused. Under the circumstances, it would not be safe to convict the accused merely on the basis of testimonies of the police officials. Accused Mukesh Kumar, is thus entitled to benefit of doubt and is accordingly acquitted for offence U/s 33 of Delhi Excise Act. Case property be confiscated to the State.
17. Bail bond in terms of Section 437 A Cr.P.C has already Digitally signed by DEEPAK been obtained from the accused (since acquitted) in compliance DEEPAK KUMAR KUMAR Date:
2022.10.20 17:45:56 CASE No. 2410/2017 +0530 FIR No. 974/15 PS- Begum Pur State Vs. Mukesh Kumar page 10/11 of the judgment of the Hon'ble High Court in State Vs. Virender Yadav & Anr. 2014 I.A.D (Del.) 389.
18. File be consigned to Record Room after due compliance. DEEPAK KUMAR Digitally signed by DEEPAK KUMAR Announced in the open Court Date: 2022.10.20 17:46:00 +0530 on 20.10.2022. (DEEPAK KUMARI) ACMM (NorthWest) Rohini Courts/Delhi CASE No. 2410/2017 FIR No. 974/15 PS- Begum Pur State Vs. Mukesh Kumar page 11/11