Delhi District Court
State vs . Soniya on 10 July, 2018
IN THE COURT OF SH. KISHOR KUMAR, MM-03, SOUTH WEST DISTRICT, ROOM NO.11, DWARKA COURTS, DELHI. FIR No. : 143/17 U/s : 33 Delhi Excise Act P.S. : Bindapur State Vs. Soniya JUDGMENT:
a) Sl. No. of the Case : 6159/17
b) Name & address of the : Ct. Kailash, No. 765/SW
complainant. PS: Bindapur
c) Name & address of : Soniya W/o Sh. Sunny
accused R/o H.No. A-46, Vishu Vihar,
Uttam Nagar, New Delhi.
d) Date of Commission of : 11.03.2017
offence
e) Offence complained off : U/s 33 Delhi Excise Act
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
h) Date of such order : 10.07.2018
Date of Institution : 01.08.2017
Final arguments heard on : 10.07.2018
Judgment Pronounced on : 10.07.2018
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on FIR No: 143/17 state v. soniya Page No.1/9 11.03.2017 at about 10:00 am near Gautam Hospital, DDA Flats, Bindapur, Delhi, accused was found in possession of 100 quarter bottles of illicit liquor of brand Rasbhara Santara Masaledar Desi Sharab in two carton boxes without any permit or license while HC Kailash and Ct. Sunil were on patrolling. The Illicit liquor was seized. Consequently, FIR was registered against the accused and investigation was carried out.
2. After investigation, challan for offence U/s 33 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33 Delhi Excise Act was framed against the accused on 21.09.2017, to which she pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many FIR No: 143/17 state v. soniya Page No.2/9 as four witnesses.
5. PW1 HC Kailash and PW4 Ct. Sunil apprehended the accused with illicit liquor while they were patrolling. Thereafter, they informed the PS on which, IO PW3/ASI Rajesh Kadian along with PW2 Wct. Sanju reached at the spot and conducted further investigation. PW3 ASI Rajesh Kadian deposed that on 11.03.2017, on receipt of DD No. 20-B Ex. PW3/A, he along-with WCt. Suman went to the spot i.e. near Gautam Hospital, DDA Flats, Bindapur where he met HC Kailash and Ct. Sunil alongwith accused Sonia and case property. He have tried to join 4-5 public persons in the investigation but all left the spot after assigning their personal reasons. Thereafter, he checked the plastic katta and it was found containing 2 carton boxes of illicit liquor, 50 quarter bottle each of Rasbhara Santara Masaledar Desi Sharab. He took out one sample bottle from each of the carton box and sealed them with the seal of RK and the remaining bottles were placed in FIR No: 143/17 state v. soniya Page No.3/9 the same plastic katta and sealed with the seal of RK. Form M-29 was prepared and thereafter, seal was handed over to Ct. Sunil. Case property was taken into police possession vide seizure memo Ex. PW1/A. PW3 recorded the statement of HC Kailash and prepared the rukka Ex.PW3/X and got the FIR registered through Ct. Sunil who came back at the spot and handed over original rukka and copy of FIR to PW3. Accused was arrested vide arrest memo Ex. PW1/B and her disclosure statement was recorded vide Ex. PW1/C. The personal search of accused was carried out by WCt. Suman vide Ex. PW2/A. PW3 also prepared the site plan Ex. PW3/B. He also recorded the statement of witnesses u/s 161 Cr.PC. On 19.05.2017, PW3 sent the sample bottles of illicit liquor to Excise Office, ITO through Ct. Pradeep vide RC no. 98/21/17 Ex. PW3/C. The order vide which case property was disposed off is Ex. P-1.
6. Accused has admitted under section 294 Cr.P.C FIR No: 143/17 state v. soniya Page No.4/9 registration of present FIR Ex. X-1.
7. After completion of prosecution evidence, all the incriminating evidence was put to accused U/s 313 Cr.P.C and her explanation was recorded, wherein she denied all the incriminating evidence against her.
8. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
9. It is seen that in the present case the case property was seized vide seizure memo Ex. PW1/A. As per seizure memo total two carton boxes containing 50 quarter bottles each were recovered out of which 98 quarter bottles were put in green color plastic katta after taking two samples. However, as per photograph filed on record by MHC(M) along with order of destruction of case property, illicit liquor was shown to be in two white plastic kattas bearing the FIR No: 143/17 state v. soniya Page No.5/9 particulars of present case. Further, seal was not visible on either of the plastic katta. Therefore, such material contradiction leads to the doubt regarding the very fact of destruction of case property or its recovery from accused. MHC(M) concerned has never been examined by the prosecution for any clarification in this regard.
10. Apart from this, the testimonies of the witnesses examined on record do suffer from material contradictions and inconsistencies which go to the very root of case of the prosecution making it unbelievable and testimonies of the prosecution witnesses untrustworthy.
11. PW1 HC Kailash deposed in his cross examination that he took the case property to PS in cycle rickshaw and Ct. Sunil went to PS on his motorcycle and IO went to PS on his motorcycle. He further deposed that tehrir was taken to PS by Ct. Sunil at 10:45 AM on his motorcycle and came back at 11:45 AM on the same motorcycle alone. However, PW3/IO FIR No: 143/17 state v. soniya Page No.6/9 ASI Rajesh Kadian deposed in his cross examination that they all went to PS on completion of investigation on foot. He further deposed that Ct. Sunil took the rukka on foot at 11:40 AM and came back on foot at th spot at about 12:40 PM. As per medical report of accused, same was conducted at 12:40 PM at DDU Hospital. Further, time of arrest as per arrest memo is 10:30 AM whereas DD No.20B regarding apprehension of accused with illicit liquor was of 10:20 AM which was received by IO/PW3 whereas PW1 HC Kailash deposed in his cross examination that IO came to the spot at 10:15 AM. It is, thus, highly improbable that information of illicit liquor was received at 10:20 AM and accused was arrested at 10:30 AM specially when FIR was registered after 11:40 AM as per prosecution witnesses. PW4 Ct. Sunil deposed in this regard that he along with HC Kailash left the spot at 12:30 PM along with case property in E-rickshaw and IO and lady constable went to PS on the motorcycle of IO. In view of these material contradictions, false implication of the accused cannot be ruled out. In a case titled as State FIR No: 143/17 state v. soniya Page No.7/9 of UP Vs. Vallabdas, AIR 1985 SC 1384, it was observed that -
If there are any material discrepancy and if the discrepancy go to the root of the case/matter, they will have some bearing on the prosecution case.
12. The case of the prosecution is further seen with doubt for the reason that though the accused has been apprehended with the case property from a place which was a public place and public persons were passing through as per prosecution witnesses, however no public witness was joined to the proceedings at all. The prosecution witnesses deposed that public persons were asked to join the investigation but they refused. However upon this, the IO did not issue any notice to them nor noted down their names and particulars. In a case titled as Avdhesh etc. Vs. State of MP, AIR 1998 SC 1158, it was observed that-
Place of occurrence is a busy public place, no independent witness examined by the prosecution. The case of the prosecution is doubtful and the conviction is improper.
In AIR 1978 SC 59 in the case titled as Bir Singh V. State of U.P., it has been observed that -
FIR No: 143/17 state v. soniya Page No.8/9
Examination of witnesses - Duty of prosecution - Independent witnesses available - Examination of only interested witnesses - Adverse inference - Justified.
13. In view of the above discussion, it is held that prosecution miserably failed to prove its case against the accused beyond reasonable doubt. Resultantly, accused is acquitted of the charged offences. Digitally signed by KISHOR KISHOR KUMAR KUMAR Date:
2018.07.11 13:10:17 +0530 Dictated & Announced in Open Court (Kishor Kumar) On the 10th day of July, 2018 MM-03/South-West/Delhi 10.07.2018 FIR No: 143/17 state v. soniya Page No.9/9