Delhi District Court
State vs Kalu Ram on 27 February, 2025
IN THE COURT OF MS. JYOTI NAIN
JUDICIAL MAGISTRATE FIRST CLASS-07: ROHINI COURTS: DELHI.
FIR No. 567/2019
U/s 33 of Delhi Excise Act
PS: NIA
State vs. Kalu Ram S/o Sona Ram
Date of Institution of case:-09.01.2020
Date of Judgment reserved:-27.02.2025 (at 11:30 am)
Date on which Judgment pronounced:-27.02.2025 (at 03:30 pm)
JUDGMENT
Case Number : 81/2020
CNR Number : DLNT020002802020
Date of Commission : 13.09.2019
of offence
Name of the : Ct.Satish
complainant
Name and address of : Kalu Ram S/o Sona Ram
the accused R/o House No.B-186, Phase-II, Metro Vihar, Holambi
Kalan, Delhi.
Offence complained : 33 of Delhi Excise Act
of
Plea of accused : Not guilty
Final Order : Acquitted
JYOTI Digitally signed
by JYOTI NAIN
Date: 2025.02.27
NAIN 17:23:45 +0530
FIR No. 567/2019 State vs. Kalu Ram 1 of 11
BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is, that on 13.09.2019, at about 08:30 pm, on road between Dhaan Mill and Shishu Vatika, Metro Vihar, Holambi Kalan, Delhi within the jurisdiction of Police Station NIA, accused was found in possession of two plastic kattas. Each plastic katta was found containing 02 gatta petis (total 04 gatta peties). Each gatta peti was found containing 50 quarter bottles of illicit liquor of make Santra Desi Sharab for Sale in Haryana Only (total 200 quarter bottles) without any permit or license. Thus, according to prosecution, accused committed an offence punishable under Section 33 of The Delhi Excise Act, 2009. Thereafter, upon investigation statements of witnesses were recorded. Subsequently, an FIR was registered against the accused.
2. Investigation was completed and police report under section 173 Cr.P.C. was filed under section 33 of the Delhi Excise Act, 2009 of the prescribed duty.
3. Copy of charge sheet and annexed documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused was framed under section U/s 33 of the Delhi Excise Act, 2009 by the Ld. Predecessor, vide order dated 06.09.2022. Thereafter, accused pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined three witnesses.
6. PW1 HC Satish No. 1216/N, present posting at PS Civil Lines, Delhi.
He deposed, that on 19.10.2020, he was posted at PS Swaroop Nagar as Constable. On that day, he alongwith Ct. Mandeep were on patrolling duty in the area of Beat No.1 & 2 in the area of Nangli Puna and Khadda colony, Swaroop Nagar, Delhi. At about 07:10 PM, they reached at khasra No. 41/4, Gali No.2, Ravi Wali Digitally signed FIR No. 567/2019 State vs. Kalu Ram 2 of 11 JYOTI by JYOTI NAIN Date:
2025.02.27 NAIN 17:23:50 +0530 Gali, Near Shani Mandir, Khadda Colony, Swaroop Nagar, Delhi where he saw the accused Usha was sitting on the three plastic kattas. On seeing them in uniform, the accused Usha tried to escape from the spot. On suspicion, they apprehended the accused alongwith the 03 plastic kattas of illicit liquor. They made inquiry regarding the white plastic katta but she could not give the satisfactory answer. They checked all three plastic kattas and on checking, all plastic kattas were found containing gatta pettis of illicit liquor. On inquiry, accused had revealed her name as Usha.
He gave the information regarding the recovery of the illicit liquor in the PS. After some time, HC Kamlesh Ram alongwith W/Ct. Preeti reached at the spot and they handed over the custody of accused to W/Ct. Preeti and recovered 03 plastics katta of the illicit liquor to IO Hc Kamlesh. IO requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. IO recorded his statement which is Ex.PW1/A bearing his signature at point A. Without wasting time, IO checked the all three plastic kattas and on checking, 02 plastic kattas were found containing 02 gatta pettis in each plastic katta and third plastic was found containing 01 gatta petti of illicit liquor. Total 05 gatta pettis were recovered from the possession of the accused. On checking, each gatta petti was found containing 50 quarter bottles of illicit liquor of make Falcon's Santra Desi Sharab for Sale in Haryana Only. IO took out 01 quarter bottle as a sample from the each gatta petti and remaining quarter bottles again put into respective gatta petti. IO prepared pullanda of sample quarter bottles and remaining quarter bottles of liquor and sealed with the seal of KR. IO also filled form M-29 at the spot. After use, IO handed over the seal to Ct. Mandeep. IO seized the recovered liquor vide memo Ex.PW1/B bearing his signatures at Point A. Thereafter, IO prepared rukka and handed over the same to Ct.Mandeep for registration of FIR. Accordingly, Ct.Mandeep went to the PS and got registered the present FIR. After registration of FIR, Ct. Mandeep came back to the spot and handed over the copy of FIR and original rukka to IO. IO mentioned FIR number on the seizure memo and M29 FORM. IO prepared site plan at their instance which is Digitally signed JYOTI by JYOTI NAIN Date: FIR No. 567/2019 State vs. Kalu Ram NAIN 3 of 11 2025.02.27 17:23:54 +0530 Ex.PW1/C. IO served notice U/s 41.A Cr.P.C to the accused Usha. IO deposited the case property in the Malkhana. IO recorded his statement.
This witness was duly cross-examined by Ld. Defence Counsel.
7. PW2 is HC Dev Anand.
He deposed on the same lines as that of PW1 HC Satish Kumar. He stated, that he accompanied PW1 during the investigation. His testimony is not being discussed so as to avoid repetition and for the sake of brevity.
This witness was cross examined by Ld. Defence counsel.
8. PW3 is HC Neeraj, No. 1720/PCR, Outer Zone.
He deposed that on 28.02.2019, he was posted at PS NIA as Head Constable. On that day, on receiving DD No. 37B regarding apprehension of illicit liquor reached at behind Shishu Vatika phase-2, Metro Vihar, Delhi where he met Ct.Vishal and ASI Bijender who handed over the custody of accused and the custody of illicit liquor to him. He recorded statement of Ct. Vishal which is already exhibited as Ex.PW1/A bearing his signatures at Point B. He requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. Without wasting time, he checked the plastic kattas which were total 2 in number and the same was found containing 125-125 quarter bottles each of make Santara Masaledar Desi Sharab for Sale in Haryana 180ml each only.
He took out 01 quarter bottle as sample each from the respective kattas and remaining quarter bottles are again put into the said plastic katta. He prepared the pullinda of sample quarter bottles and remaining quarter bottles of illicit liquor and sealed the same with the seal of NJ. After use, he handed over the seal to Ct. Vishal. He seized the recovered liquor vide seizure memo which is already Ex.PW1/B bearing his signatures at Point C. He filled M29 form at the spot Ex.PW3/A, bearing his signature at point A. He prepared the rukka Ex.PW3/B, bearing his signature at point A and handed over the same to Ct. Vishal for registration of FIR. Accordingly, FIR No. 567/2019 State vs. Kalu Ram 4 of 11 Ct. Vishal went to the PS and got registered the present FIR. After registration of FIR, Ct. Vishal came back to the spot and handed over the copy of FIR and original rukka to him. He mentioned FIR Number on the Seizure memo and the M29 form. Thereafter, he prepared the site plan at instance of ASI Bijender which is already Ex.PW1/C bearing his signatures at Point A. He arrested and personally searched the accused vide arrest memo and personal search memo already Ex.PW1/E and Ex.PW1/F bearing his signature at point C respectively. He recorded disclosure statement of the accused which is already Ex.PW1/D bearing his signatures at Point B. He deposited the case property in Malkhana.
This witness was duly cross-examined by the Ld. Defence Counsel.
9. Perusal of record shows, that statement of accused was also recorded under section 294 Cr.P.C in which the accused has admitted the document i.e. Registration of FIR No.567/19 which is Ex.A1, DD No.81-A dt 13.09.2019 which is Ex.A2, Excise Control Laboratory Result which is Ex.A3, Road certificate- which is Ex.A4 and contents of register no. 19 and 21 regarding the deposition of case property.
10. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused, to which she denied the allegations made against him and claimed himself to be innocent and pleaded that she has been falsely implicated in this case. Accused denied to lead any evidence in her defence and the same was closed.
11. Thereafter, matter was listed for final arguments and arguments were adduced at length by both the parties. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and have carefully perused the record.
Digitally signed by JYOTI JYOTI NAIN Date:
NAIN 2025.02.27
17:24:02
+0530
FIR No. 567/2019 State vs. Kalu Ram 5 of 11
12. It is argued by the Ld. APP for the state, that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit liquor without permit. It is further stated, that there are ocular and documentary evidence on record to bring home the guilt of the accused.
13. Per contra, it is argued by the Ld. LAC for the accused, that non joinder of public witness despite availability casts a shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused and that she is falsely implicated in present case and that there is no independent evidence against him.
14. 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 suppose 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 is 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.
15. 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 about 08:30 PM and it is admitted fact, that public persons were available at the spot, which is evident from the testimony of PW1 and PW2, who stated in their examination in chief, that IO had requested 4-5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. The relevant extract of their cross-examination to this effect are as under:-
PW1 i.e. HC Satish Kumar, deposed in his cross examination, " IO did not serve notice to public persons who refused to join the investigation".Digitally signed by JYOTI NAIN
JYOTI NAIN Date: 2025.02.27 17:24:09 +0530 FIR No. 567/2019 State vs. Kalu Ram 6 of 11 PW3 HC Neeraj i.e. IO, deposed in his cross-examination, " I did not serve notice to public persons who refused to join the investigation".
16. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on "Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be 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 shopkeepers 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".
17. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55, it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not JYOTI Digitally signed by JYOTI NAIN Date: 2025.02.27 FIR No. 567/2019 State vs. Kalu Ram NAIN 7 of 11 17:24:15 +0530 that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
18. Also, in State of Punjab v. Balbir Singh , AIR 1994 SC 1872, the Hon'ble Supreme Court of India held as under :-
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well- settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
[Emphasis supplied].
Digitally signed by JYOTI JYOTI Date:
NAIN NAIN 2025.02.27 17:24:21 FIR No. 567/2019 State vs. Kalu Ram 8 of 11 +0530
19. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story.
20. In the 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.
21. Another material thing which is required to be discussed about the case of prosecution is, that on 13.09.2019, PW1 and PW2 were on patrolling duty, meaning thereby, that at the relevant time, they were not in the PS and it seems, that outside the PS, then as per Punjab Rules, they being on duty was required to enter their departure & arrival to & from the PS NIA in the DD register of the said PS. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No. II-The following matters shall, amongst others, be entered:-
(c)The hour of arrival and the 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 personality by signature or seal.
Digitally signed JYOTI by JYOTI NAIN
Date:
FIR No. 567/2019 State vs. Kalu Ram NAIN
9 of 11 2025.02.27
17:24:28 +0530
Note:- Lines & Police Posts, where Register no.II is maintained.
22. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW1 and PW2. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the presence of PW1 and PW2 at the spot. Hence, it creates doubt in the prosecution story.
23. In present case the 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.
PW-3 i.e. IO HC Neeraj, deposed in his cross-examination, that " No taking/ handing over memo of seal was prepared by me".
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 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".
24. Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
JYOTI Digitally signed by
JYOTI NAIN
NAIN Date: 2025.02.27
17:24:34 +0530
FIR No. 567/2019 State vs. Kalu Ram 10 of 11
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
25. All the lapses in investigation creates doubt on the very recovery of illicit liquor from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
26 In view of the above said description and in the absence of any cogent evidence against the accused Kalu Ram, he is hereby acquitted for offence under section 33 The Delhi Excise Act, 2009. Case property be confiscated to the state as per rules and the same be destroyed.
27. File be consigned to record room.
28. This Judgment consists of 11 pages and all pages bear my signature.
JYOTI Digitally signed
by JYOTI NAIN
Date:
Announced and dictated directly NAIN 2025.02.27
17:24:39 +0530
into the computer in open court (JYOTI NAIN)
on 27th Day of February, 2025 JMFC-07/North District
Rohini Courts, Delhi.
FIR No. 567/2019 State vs. Kalu Ram 11 of 11