Delhi District Court
State vs Jony on 29 May, 2024
IN THE COURT OF SH. P BHARGAV RAO, MM-03 (WEST), THC, DELHI
DLWT020110752016
Cr. Case No. 73994/2015
FIR No. 1223/2015
State Vs. Johny
Cr. Case No. : 73994/2015
FIR NO. : 1223/2015
Police Station : Nihal Vihar
Date of commission of offence : 04.12.2015
Date of institution of the case : 25.07.2016
Name of the complainant/ informant : ASI Sunil Kumar, Special Staff Outer District,
Delhi.
Name of accused and address : Jony S/o Sh. Ramesh Kumar, R/o K -76, Amar
Colony, Nangloi, Delhi.
Offence complained of or proved : 33/38 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of judgment : 29.05.2024
State Vs. Jony FIR No. 1223/2015 Page No. 1/20
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1.This is the prosecution of the accused namely Jony upon a charge sheet filed by the police official of police station Nihal Vihar under section 33/38 Delhi Excise Act.
2. The allegation against the accused is that he was found in possession of illicit liquor on 04.12.2015 at about 03:30 pm at Shop in plot No. C-66, Naresh Park, Nihal Vihar, Delhi. Accordingly, he stands charged for offence U/s 33/38 Delhi Excise Act.
3. Briefly stated facts of the present case is that ASI Sunil Kumar alongwith Ishwar Singh, ASI Mohan Lal, HC Vinod, Ct. Sunder and Ct. Samundar caught the accused with 2000 quarter bottles of illicit liquor having label of Impact Grain Whiskey and Asli Masaledar Desi Sharab for sale in Haryana only.
4. After completing the formalities, investigation was carried out by PS Nihal Vihar and a charge sheet was filed against the accused. The charge was framed against the accused u/s 33/38 Delhi Excise Act, to which he pleaded not guilty and claimed trial.
5. In order to substantiate its case, prosecution has examined 11 witnesses. The testimony of all the witnesses are reproduced hereunder for ready reference and the relevancy and admissibility of said testimony will be dealt with at the later part of the judgment :
6. The testimony of PW1 SI Badlu Ram :
"On 04.12.2015, I was posted at PS Nihal Vihar as Duty officer, and my duty hours were from 04:00 pm to 12.00 (mid night). On that day, at about 06:55 pm, I received the rukka through Ct. Sunder Lal sent by HC Sunil. On the basis of which I got registered FIR Ex.PW1/A, bearing my signature at point 'A'. The FIR was got State Vs. Jony FIR No. 1223/2015 Page No. 2/20 registered through computer installed at PS Nihal Vihar. The said computer was under my lawful control at that time and the FIR Ex.PW1/A was registered on the basis of tehrir. The computer was being used in routine manner for similar purpose. After registration of FIR, print out of the same was obtained running in two pages bearing my signatures at point A. Nothing adverse took place so as to affect the correctness of the information so fed in the computer. I also made endorsement on rukka which is EX. PW1/B bearing my signature at point 'A'. Another print of FIR was also obtained which was tagged in the FIR register as per rules. Today, I have brought the original FIR register for the year 2015 maintained at the PS, containing the original FIR No.1223/15, it is compared and return. After registration of FIR, I handed over the original rukka with copy of FIR to Ct. Sunder Lal to be handed over to IO HC Shashi Kant for further investigation. I have also issued my certificate under section 65B Evidence Act qua FIR, same is already on record, Ex.PW1/C, bearing my signature at point 'A'". He was duly cross examined by the Ld. counsel for the accused.
7. The testimony of PW2 Ct. Samunder :
"On 10.12.2015, I was posted as Constable in Special Staff West, Taigore Garden. On that day, IO/HC Shashi Kant had handed over exhibits samples to me i.e. four plastic bags/kattas to be deposited the same in Excise Lab, ITO alongwith intimation letter No. 743R-INSP Special Staff, West. After having got the acknowledgment of the receipt of the sample of the exhibits, the same was deposited in the malkhana. While the samples were in my possession, no tempering has been done. Thereafter, my statement had been recorded by IO". He was not cross examined on behalf of counsel for accused despite opportunity given.
9. The testimony of PW3 HC Harish Chander :
"I was posted at PS Nihal Vihar as MHC(M). Today, I have brought register No. 19.State Vs. Jony FIR No. 1223/2015 Page No. 3/20
On 04.12.2015, I made Entry No. 1600 which is Ex.PW3/A (OSR) bearing my signature at point A in respect of FIR No. 1223/15 which was registered by me regarding deposit of case property. On 10.12.2015, I sent sample of the present case to Excise Lab. Through Ct. Sumender Singh vide Road Certificate No. 217/21/15 Ex.PW3/B (OSR) bearing my signature at point A". He was not cross examined on behalf of accused despite opportunity given.
10. The testimony of PW4 Sh. Brijender :
"I was posted as Deputy Chemical Examiner on 04.12.2015. On the same day, 396 quarter bottle of liquor 180 ml. with the seal of S.K. along with Form M-29 of the present case have received in Excise Control Laboratory and the above said samples were allotted to Sh. Rajesh Joshi, Deputy Chemical Examiner, Sh. S.K. Singh, Deputy Chemical Examiner, Sh. Anil Kumar, Assistant Chemical Examiner, Ms. Seema Mathur, Assistant Chemical Examiner, Sh. Ram Singh Gautam, Assistant Chemical Examiner, Sh. Ramesh Bedi, Assistant Chemical Examiner, Sh. Ram Singh, Assistant Chemical Examiner, Sh. Amit Paul, Assistant Chemical Examiner, Sh. Ravi Karan, Chemical Assistant, Sh. Praveen Chandra, Chemical Assistant & Sh. Arun Kumar Sharma, Jr. Lab. Analyst for analysis the samples under my supervision and they submitted their report to me regarding this. After analysis of the samples composition of country liquor & whiskey were found in the samples. The above-said experts have submitted their report which are Ex. PW-4/A all bearing my signatures at point A". He was not cross examined on behalf of accused despite opportunity given.
11. The testimony of PW5 ASI Sunil Kumar :
"On 04.12.2015, I was posted at Special staff of West District. On that day, I was present at the office of special staff of West District. At about 2:00pm, one secret informer came to me and informed that one person namely Jony was keeping down State Vs. Jony FIR No. 1223/2015 Page No. 4/20 illicit liquor at a shop situated at plot no. C-66, Naresh Park, Nihal Vihar. I shared the information with the inspector in-charge of the special staff west district namely Sh. S.S. Rathee and the said inspector directed me to prepare a raiding party and take necessary action immediately as per law. I prepared a raiding party including ASI Ishwar Singh, ASI Mohan Lal, HC Vinod, Ct. Sunder Lal and Ct. Samundar in the supervision of SI Charan Singh. At about 2:30pm, we proceeded with secret informer to the spot. At about 03:10pm we all reached near Water Supply Pump situated at Najafgarh Nanloi Road. 6-7 public persons were asked to join the investigation in the present matter but none of them agreed and left the spot citing reasonable excuses. No notice could be severed upon them due to paucity of time. Without wasting time, we reached at the C-66, Naresh Park, Nihal Vihar at about 3:30pm the secret informer pointed out towards a shop which shutter was half opened as a shop where illegal liquor was stashed. We accordingly opened the shutter of said shop and found that one person was having plastic katta in his hand and we inquired the name of said person and he revealed his name as Jony. I with help of Ct. Sunder Lal checked the said katta which was having 2 peties illicit liquor. We checked the said peties and found 48 quarter bottles having label of Impact Grain Whiskey for sale in Haryana. We took out two samples from each peties and we put the said peties in same katta and sealed with the seal of SK and we put serial no. 1 on the said katta. We also found four plastic kattas in the said shop and we checked the said katta and found 2 peties of illicit liquor in the each katta. The said illicit liquor was having label of Impact grain Whiskey for sale in Haryaba only. I took two quarter bottles of illicit liquor from each peties and I put the said 8 peties in the same kattas and sealed with the seal of SK and put serial no. 2 to 5 respectively. We also found 20 plastic kattas in the said shop and we checked the said kattas and found 100 quarter bottles of illicit liquor having label of Asli Santra Desi Masaledar Sharab for sale in Haryana only in each kattas and there were 2000 quarter bottles of illicit liquor in said 20 plastic kattas. We took out two samples from each kattas and I sealed those kattas with the seal of SK. I State Vs. Jony FIR No. 1223/2015 Page No. 5/20 put mark on the said kattas serial no. 6 to 25. I put mark on the samples serial no. 3, 9, 12, 21 in collectively all the each lot of peties. I filled form M-29 and seal was handed over Ct. Sundar Lal and I prepared the seizure memo of the said illicit liquor which is Ex. PW-5/A bearing my signature at point A. The said accused Jony disclosed possession of the above said illicit liquor. I accordingly prepared rukka which is now Ex. PW-5/B bearing my particular in my handwriting at point B. The same was handed over to Ct. Sundar Lal for registration of the FIR who visited at the PS Nihal Vihar and got registered FIR. The case was marked for further investigation to HC Shashi Kant on the direction of the senior officer. HC Shashi Kant came at the spot. I handed over the case property and accused to HC Shashi Kant. HC Shashi Kant prepared the site plan at my instance which is Ex. PW-5/C. I was relieved from the investigation after my statement to the IO. Accused present in the court and correctly identified by witness. MHC(M) produced copy of the order of confiscation issued by Sh. KK Mishra Assistant Commissioner (Excise) bearing no. Con.8104/2017/3734-35, dated 21.12.2017, order of destruction bearing no. F.CONF/2017/4826-27, dated 21.03.2018 issued by Sh. K.P. Singh Assistant Commissioner (Excise), with copy of list of the destruction order, DD No. 56B, dated 29.03.2018 and one CD and two photographs of the illicit liquor with plastic with particulars of the case and destruction process of illicit liquor all are Ex. PW-5/D (colly) and photographs and CD are Ex. PH1 to Ex. PH2 and Ex. P1. The photographs are shown to the witness and same is correctly identified by the witness.
MHC(M) produced one transparent polythene containing two quarter bottles of liquor. The same is taken out one pullanda having label of Asli Santra Desi Masaledar Sharab for sale in Haryana only with the seal, the same is shown to the witness and witness correctly identified. Other pullanda of bottle having label of Impact Grain Whiskey for sale in Haryana only without seal is taken out and shown to the witness and witness correctly identified the same and both are Ex. P2 and Ex. P3". He was duly cross examined by Ld. Counsel for the accused.
State Vs. Jony FIR No. 1223/2015 Page No. 6/2012. The testimony of PW6 HC Sunder Lal :
"On 04.12.2015, I was posted at Special staff of West District as Ct. On that day, I was present at the office of special staff of West District. At about 2:00pm, one secret informer came to me and HC Sunil and informed that one person namely Jony was keeping down illicit liquor at a shop situated at plot no. C-66, Naresh Park, Nihal Vihar. HC Sunil shared the information with the inspector in-charge of the special staff west district namely Sh. S.S. Rathee and the said inspector directed him to prepare a raiding party and take necessary action immediately as per law. A raiding team including ASI Ishwar Singh, ASI Mohan Lal, HC Vinod, HC Sunil, me and Ct. Samundar in the supervision of SI Charan Singh was prepared. we proceeded with secret informer to the spot. At about 03:30pm we all reached near Water Supply Pump situated at Najafgarh Nanloi Road. Without wasting time, we reached at the C- 66, Naresh Park, Nihal Vihar at about 3:30pm the secret informer pointed out towards a shop which shutter was half opened as a shop where illegal liquor was stashed. We accordingly opened the shutter of said shop and found that one person was having two plastic kattas in his hand and we inquired the name of said person and he revealed his name as Jony. I with help of HC Sunil checked the said katta which was having 2 peties illicit liquor one by one. We checked the said peties and found 48 quarter bottles having label of Impact Grain Whiskey for sale in Haryana. We took out two samples from each peties and we put the said peties in same katta and sealed with the seal of SK and we put serial no. 1 on the said katta. We also found six plastic kattas in the said shop and we checked the said katta and found 2 peties of illicit liquor in the each katta. The said illicit liquor was having label of Impact grain Whiskey for sale in Haryaba only. I took two quarter bottles of illicit liquor from each peties and I put the said 8 peties in the same kattas and sealed with the seal of SK and put serial no. 2 to 5 respectively. We also found 20 plastic kattas containing 40 peties in the said shop and we checked the said kattas and found 100 quarter bottles of illicit State Vs. Jony FIR No. 1223/2015 Page No. 7/20 liquor having label of Asli Santra Desi Masaledar Sharab for sale in Haryana only in each kattas and there were 2000 quarter bottles of illicit liquor in said 20 plastic kattas. We took out two samples from each kattas and HC Sunil sealed those kattas with the seal of SK. HC Sunil put mark on the said kattas serial no. 6 to 25. HC Sunil put mark on the samples serial no. 3, 9, 12, 21 in collectively all the each lot of peties. HC Sunil filled form M-29 and seal was handed over to me and HC Sunil prepared the seizure memo of the said illicit liquor which is already Ex. PW-5/A bearing my signature at point B. The said accused Jony disclosed possession of the above said illicit liquor. HC Sunil accordingly prepared rukka The same was handed over to me for registration of the FIR who visited at the PS Nihal Vihar and got registered FIR. The case was marked for further investigation to HC Shashi Kant on the direction of the senior officer. I along with HC Shashi Kant came at the spot. HC Sunil handed over the case property and accused to HC Shashi Kant. I was relieved from the investigation after my statement to the IO. Accused present in the court and correctly identified by witness. MHC(M) produced copy of the order of confiscation issued by Sh. KK Mishra Assistant Commissioner (Excise) bearing no. Con.8104/2017/3734-35, dated 21.12.2017, order of destruction bearing no. F.CONF/2017/4826-27, dated 21.03.2018 issued by Sh. K.P. Singh Assistant Commissioner (Excise), with copy of list of the destruction order, DD No. 56B, dated 29.03.2018 and one CD and two photographs of the illicit liquor with plastic with particulars of the case and destruction process of illicit liquor all are Ex. PW-5/D (colly) and photographs and CD are Ex. PH1 to Ex. PH2 and Ex. P1. The photographs are shown to the witness and same is correctly identified by the witness.
MHC(M) produced one transparent polythene containing two quarter bottles of liquor. The same is taken out one pullanda having label of Asli Santra Desi Masaledar Sharab for sale in Haryana only with the seal, the same is shown to the witness and witness correctly identified. Other pullanda of bottle having label of Impact Grain Whiskey for sale in Haryana only without seal is taken out and shown to the witness State Vs. Jony FIR No. 1223/2015 Page No. 8/20 and witness correctly identified the same and both are Ex. P2 and Ex. P3. Ld. APP asked the leading question from the witness as he did not disclose the complete fact wherein he deposed that it is correct that HC Shashi Kant prepared seizure memo the spiced country sprit in torn peties lying at the shop and seized the same two plastic kattas and same was seized vide seizure memo which is Ex. PW-6/A bearing my signature at point A. It is correct that accused was arrested and personal searched vide memos are Ex. PW-6/B and Ex. PW-6/C both bears my signature at point A respectively. It is correct that my statement was recorded by the IO. It is correct that I had forgotten above said facts due to lapse of time, therefore, I could not depose the facts my own before the court". He was duly cross examined by Ld. Counsel for the accused.
13. The testimony of PW7 ASI Shashi Kant :
"On 04.12.2015 I was posted at Special Staff West District Tagore Garden. On that day I received the information that HC Sunil Kumar had caught one person with illicit liquor at Plot no. C-66, Naresh Park, Delhi in a shop. I was marked the investigation of the present matter. Accordingly I reached at the spot and met with the complainant HC Sunil and produced me alleged seized illicit liquor and accused Jonny and relevant documents. Meanwhile, Ct. Sunder came at the spot and he produced me copy of FIR and rukka. I prepared site plan at the instance of the HC Sunil already Ex.PW5/C bearing my signature at point A. I enquired HC Sunil and Ct. Sunder. I also arrested the accused Jonny vide arrest memo already Ex. PW6/B and personal search vide memo Ex. PW6C both bearing my signature at point B respectively. I also seized one gatta petti (empty) in torn condition vide seizure memo already Ex. PW6/A bearing my signature at point B. I took the case property to the PS Nihal VIhar and same was deposited in the malkhana of the PS. I also recorded the statement of witnesses. Accused was produced before the court after medical examination and he was remanded to JC. I sent the seized samples to excise lab State Vs. Jony FIR No. 1223/2015 Page No. 9/20 through Ct. Samunder. Later on, I also collected the excise result of the samples and same is found to be liquor in the result. Accordingly, I prepared the challan on completion of investigation and filed before the court. Accused present in the court and correctly identified by the witness. After sometime, I was received court order qua investigation of the ownership of the said premises from which the illicit liquor was found. Accordingly, I found that the said shop belonged to Kuldeep Gupta. On interrogation, the said Kuldeep Gupta stated to me that the shop was rented out to Ajay Rawat through copy of agreement which is Mark X-1(colly). I also recorded the statement of Kuldeep Gupta, one witness namely Chander Bhan, Raja Kumar and accused Jonny in this regard which are Ex. PW7/A, Ex. PW7/B, Ex. PW7/C and Ex. PW7/D all bearing my signature at point A respectively. I also filed a report in this regard which is Ex. PW7/E bearing my signature at point A. The case property has already been exhibited in the deposition of PW-5 and PW-6". He was duly cross examined by Ld. Counsel for the accused.
14. The testimony of PW8 Sh. Kuldeep Gupta :
"I am residing at the abovesaid address with my family and I was doing private job in year 2015. I am having three shops and one godown at C-66, Naresh Park Ext. I rented out one shop to Ajay Rawat without any rent agreement on 01.07.2015. I only took the ID of Ajay Rawat at the time of giving the shop on rent for selling tea. In the month of October, 2015, a rent agreement was prepared between me and Ajay Rawat in relation to the shop in question for selling tea. In the year 2015, I worked in NOIDA, I used to left my house early morning and came to my house late. IO recorded my statment u/s 161 Cr.P.C. Document Mark X1 Colly is shown to the witness and witness correctly identified his signature at point B. He was duly cross examined by Ld. Counsel for the accused.State Vs. Jony FIR No. 1223/2015 Page No. 10/20
15. The testimony of PW9 Sh. Ajay Rawat :
"I am residing at the abovesaid address with my family and in the year year 2015, I used to run tea shop at C-66, Naresh Park Ext. On 01.07.2015 I took the shop on rent from Kuldeep Gupta. main koi saman nahi rakhta that dukan me kyuki dukan ka shutter toota tha main apne saman ko sham ko apne ghar le jata tha aur maine dukan ka koi rent agreement nahi banwaya tha. Jony namak shaksh ne shuttar toota hone ke karan sharab ki petti dukan me rakh li thi. Mai us din apne kaam se gaya tha. After the present case, my rent agreement was prepared. IO recorded my statment u/s 161 Cr.P.C. Document Mark X1 Colly is shown to the witness and witness correctly identified his signature at point A". He was duly cross examined by Ld. Counsel for the accused.
16. The testimony of PW10 ASI Inder Raj :
"That on 18.08.2017, I was posted at PS Nihal Vihar as ASI. The case file was marked to me by the Reader / SHO for further investigation in compliance of order passed by concerned Ld. MM. On 18.08.2017, I went to the shops in question and thereafter, went to the house of the owner of the said house Kuldeep Gupta and recorded the statement u/s 161Cr.P.C. On the same day, I also recorded the statement of Ajay Rawat u/s 161 Cr.P.C., I also recorded the statement of neighbourers Sandeep u/s 161 Cr.P.C. Thereafter, I have filed the reply of re-investigation in the concerned court alongwith the statement and enclosed documents". He was duly cross examined by Ld. Counsel for the accused.
17. The testimony of PW11 Sh. Sandeep :
"I am residing at the above said address with my family. I am having private business at Aman Puri, Nangloi, Delhi. I do not remember the exact date but it was in year 2015 and 2016. One day I was present at the tea shop in the name 'Praveen Tea Stall' owned by my friend Praveen at about 10:00-11:00 a.m. police was also there and State Vs. Jony FIR No. 1223/2015 Page No. 11/20 police asked me to sign some papers accordingly I signed some papers. At this stage judicial file is shown to the witness and witness pointed his statement bearing his signatures. The statement is Ex PW11/A bearing my signatures at point 'A'. I do not want to say anything else. Ld. APP cross examine the witness uder section 154 Cr.PC. Wherein he deposed that I am studied up to class XII. I can read, write and speak Hindi language. Attention of the witness has been drawn toward the statement Ex PW11/A from portion A to B. The same is read over the witness in simple language. It is wrong to suggest that I had taken a shop on the rent at C-66, Naresh Park extension or that the said shop was adjacent to the shop of Ajay Rawat S/o Vikram Singh R/o 1372, Aman Puri, Delhi which was on the rent. It is wrong to suggest that the said shop was run by Ajay Rawat as a tea stall. It is wrong to suggest that the said shop was closed and Ajay Rawat used to visit there occasionally. It is wrong to suggest that I had read over my statement. However I know the Ajay Rawat. Witness is confronted with the statement Ex PW11/A from portion A to B where it is so recorded. It is wrong to suggest that I had settle with the accused outside the court therefore I am deliberately not disclosing the fact of renting out of tea stall by Ajay Rawat. It is wrong to suggest that I am deposing falsely qua my statement Ex PW 11/A despite correctly recorted by the IO.". He was duly cross examined by Ld. Counsel for the accused.
18. The statement of the accused u/s 294 Cr.P.C. recorded separately on 22.05.2024 and statement of accused u/s 313 Cr.P.C. r/w 281 Cr.P.C. on 28.05.2024 wherein all the incriminating circumstances were put to him which he denied and pleaded his false implication and also false plantation of the case property. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
19. I have heard Sh. Krishan Murari, Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving State Vs. Jony FIR No. 1223/2015 Page No. 12/20 the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached by the accused. Per contra, Ld. Counsel for the accused submitted that no public witnesses were examined in the present case regarding recovery of illicit liquor. He further submitted that the accused has been falsely implicated in the present case and the case property has also been planted against the accused.
20. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
21. Although, sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the accused 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. Relevant extract of the said provision is reproduced below:
"Presumption as to commission of offence in certain cases. - (1)In prosecution under Section 33, it shall be presumed, until thecontrary is proved, that the accused person has committed theoffence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for thepossession of which he is unable to account satisfactorily.
(2) Where any animal, vessel, cart or other vehicle is used inthe commission of an offence under this Act, and is liable toconfiscation, the owner thereof shall be deemed to be guilty ofsuch offence and such owner State Vs. Jony FIR No. 1223/2015 Page No. 13/20 shall be liable to be proceededagainst and punished accordingly, unless he satisfies the courtthat he had exercised due care in the prevention of thecommission of such an offence."
22. But this presumption is rebuttable and accused can rebut the same by either referring to the prosecution's evidence or by adducing defence evidence. Also, it should be noted that the words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a prerequisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused that the accused can be called upon to account for the same.
23. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case. Hence, he deserves to be acquitted.
24. During the final arguments, Ld. Counsel for the accused submitted that the prosecution did not examine even a single public witness to prove the recovery of illicit liquor from the possession. In the present case, the recovery witnesses are only police witness and accused has been falsely implicated in the present case.
25. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of State Vs. Jony FIR No. 1223/2015 Page No. 14/20 the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. In the present case, the prosecution has examined PW8 Kuldeep Gupta, PW9 Ajay Rawat and PW 11 Sandeep. PW8 only deposed that the said shop was rented out to PW9 Ajay Rawat and he does not know anything about the present case. PW9 Ajay Rawat deposed that the accused put the illicit liqour in his shop, however, he did not see the accused putting the same in his shop as he was not present at the spot. No question was put to the witness PW 9 by the prosecution with respect to the quantity of illicit liqour. Further, the witness PW11 Sandeep deposed in his cross-examination that he does not know the accused and had never seen the accused in his locality at any point of time.
26. From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference could be sought from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
27. In the instant case, as per the testimonies of PWs and also from the perusal of site plan, the alleged recovery was made from a busy locality. Therefore, it cannot be said that no public person would have been available at the spot. Although prosecution witnesses have asserted that they implored some of the public witnesses to join the investigation but they refused to participate in the investigation. This explanation tendered by the prosecution witnesses does not seem to be tenable as neither the details of those public persons have been brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist State Vs. Jony FIR No. 1223/2015 Page No. 15/20 the police in investigation. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C.Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"It is repeatedly laid down by this Court that in such cases itshould be shown by the police that sincere efforts have beenmade 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 ortwo 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 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."
28. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinized in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage,reference can be taken from the decision of the Hon'ble Supreme Court in the State Vs. Jony FIR No. 1223/2015 Page No. 16/20 case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held inter alia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because 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."
29. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417 , wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -as in the present case -that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly State Vs. Jony FIR No. 1223/2015 Page No. 17/20 available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
30. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated.
31. The prosecution did not even bring on record necessary DD entries to prove arrival and departure of the police officials from the police station. It should be noted that if the police personnel who has apprehended the accused with illegal liquor was on patrolling duty, prosecution should have brought the relevant records showing his arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under:
"Chapter 22 rule 49 Matters to be entered in Register no. II.The following matters shall amongst others, be entered:- (c) 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 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.
32. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses.
State Vs. Jony FIR No. 1223/2015 Page No. 18/20The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts 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."
33. Since all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that chances of false implication of accused under the provisions of Excise Act cannot be ruled out at the instance of the police.
34. As per the testimonies of PWs, the sample of liquor and case property were deposited the same in malkhana. Interestingly, no seal handing over memo was ever prepared in the present memo. Also, prosecution did not file any document on record to show that the said seal was eventually deposited in malkhana.
35. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution's case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. Accused is giving benefit of doubt. As such the accused deserves acquittal in the present case.
State Vs. Jony FIR No. 1223/2015 Page No. 19/2036. Therefore, in view of the above discussions and findings, the accused Jony S/o Sh. Singh is acquitted for the offence u/s 33/38 of Delhi Excise Act.
Digitally signed by P BHARGAV P RAO
BHARGAV Date:
Pronounced in open court on RAO 2024.05.29
17:32:14
+0530
29.05.2024 (P. Bhargav Rao)
MM-03/West/THC/Delhi
29.05.2024
State Vs. Jony FIR No. 1223/2015 Page No. 20/20