Delhi District Court
State vs Kalian Singh on 15 November, 2022
IN THE COURT OF MS. DEEKSHA SETHI, MM-03, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-037458-2019 FIR No. : 257/2019 U/s : 33 Delhi Excise Act P.S. : Bindapur State versus Kalian Singh a) ID. No. of the Case : 13850/2019 b) Name & address of the : Ct. Satender No. Complainant 1862/DW, PIS No. 28109899 c) Name & address of : Kalian Singh accused S/o late Sh. Kishan R/o H.No. C-1/45 Partap Garden, Uttam Nagar, New Delhi. d) Date of Commission of : 28.03.2019 offence e) Offence complained of : 33 Delhi Excise Act f) Plea of the accused : Pleaded not guilty. g) Ld. APP for the State : Sh. Manish Kaushik State v/s Kalian Singh Page 1 of 14 Cr. Case No. 13850/2019 h) Final Order : Acquitted h) Date of Institution : 22.07.2019 i) Judgment Pronounced on : 15.11.2022 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 28.03.2019 at about 06:50 PM, Ct. Satender (hereinafter referred to as the 'complainant') was on patrolling duty and when he had reached A Block, DDA Flats, Bindapur, opposite South Delhi Municipal school he saw that one person namely Kalian Singh (hereinafter referred to as 'accused') was carrying one white colored plastic katta on his shoulder and he was going towards Pratap Garden, Bindapur. After seeing Ct. Satender, the accused started walking away at a fast pace. The complainant chased the accused and stopped him. When Ct. Satyender checked the katta, it was found to be containing quarter bottles of illicit liquor. Thereafter, the complainant informed about the said incident to the police station and police official from PS Bindapur reached at the spot. Investigation of the case was thereafter handed over to Investigating Officer ASI Bharatvir.
Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Kalian Singh. After taking cognizance of the offence, the accused was summoned to face trial.
State v/s Kalian Singh Page 2 of 14 Cr. Case No. 13850/20193. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against him, to which he had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined the following witnesses:
(i) PW-1 HC Satender has deposed that on 28.03.2019 at about 06:50 PM during his patrolling duty, at beat no. 4, PS Bindapur. He had reached on road in front of Dakshini Delhi Nagar Nigam Pratibha Vidyalaya, A Block, DDA Flats and saw that one person (accused Kalian Singh) was carrying a white colored heavy plastic katta on his shoulder and was going towards Pratap Garden, Bindapur. On seeing him, that person, i.e., the accused started walking away at a high speed. The witness had stopped him and checked the katta which was found to be containing quarter bottles of illicit liquor. He thereafter shared this information with the duty officer at the police station. ASI Bharatvir Singh had thereafter reached at the spot and he had handed over the custody of the accused as well as the plastic katta containing illicit liquor to ASI Bharatvir, who had recorded his (PW-1) statement (Ex. PW-1/A). IO, i.e., ASI Bharatvir had checked the plastic katta and the same State v/s Kalian Singh Page 3 of 14 Cr. Case No. 13850/2019 was found to be containing 48 quarter bottles of Asli Santra Masaledar Desi Sharab 180 ml each for sale in Haryana only and 'ADS' was mentioned over cap of each quarter bottle. The IO had taken out one quarter bottle as sample and he had put back the remaining quarter bottles in the plastic katta. IO had thereafter put the sample in a white cloth and tied the katta sealed them with the seal of BS. He seized the case property vide memo Ex. PW1/B. IO also filled Form-29 at the spot and handed over the seal to him after use. IO thereafter prepared the tehrir and handed over the same to him (PW-1) for getting the FIR registered. After some time, he (PW-1) had reached at the spot along with a computerized copy of FIR and the original tehrir and handed over the same to the IO. IO prepared the site plan (Ex.
PW1/C) at his instance and recorded the disclosure statement of the accused Ex. PW1/D in his presence. IO had thereafter arrested the accused and conducted his personal search vide memos Ex. PW- 1/E and Ex. PW-1/F respectively. He had thereafter taken the accused to DDU hospital for his medical examination and the accused as well as the case property were thereafter brought to the police station. The case property was destroyed vide order no. F.Conf./2019/ 5901-02 dt.18.11.19 issued by AC(Excise) (Ex. P-1). The witness correctly identified one sample quarter bottle of Asli Santra State v/s Kalian Singh Page 4 of 14 Cr. Case No. 13850/2019 Masaledar desi Sharab for sale in Haryana only (i.e., the case property) which was exhibited as Ex. P-2 in court. This witness had correctly identified the accused present in court and he (PW-1) was thoroughly cross-examined by Ld. Counsel for the accused.
(ii) PW-2 ASI Arvind has deposed that on 28.03.2019, he was posted as MHC(M) CP, PS Bindapur. On that day, IO ASI Bharatvir had handed over the sealed case property along with Form M-29 and sample with the seal of BS to him and he had deposited the same at malkhana vide mud no. 2450/2019. The relevant record was marked as Mark B. On 17.04.2019, he had handed over the sealed samples to Ct. Malkit for depositing the same at Excise Laboratory, ITO for result analysis vide RC No. 76/21/19 dated 17.04.2019 (Mark A). Ct. Malkit had handed over the receipt of depositing the case exhibits at Excise Laboratory Analysis, ITO. He did not tamper with the case exhibits during the time they were in his possession. This witness was not cross-examined by Ld. Counsel for the accused.
(iii) PW-3 ASI Bharatvir Singh has deposed that on 28.03.2019, he was posted at PS Bindapur as ASI. On receipt of DD no. 63B, he had reached at the spot, i.e., A Block, Bindapur, DDA Flats, near South Delhi Nagar Nigam Pratibha Vidyalaya where he met Ct. Satender who was present along with the State v/s Kalian Singh Page 5 of 14 Cr. Case No. 13850/2019 accused (Kalian Singh) and a white plastic katta of illicit liquor. He had recorded complainant's statement Ex. PW-1/A. The plastic katta was found to be containing 48 quarter bottles of illicit liquor. 'ADS' was mentioned over cap of each quarter bottle. One quarter bottle was taken out as a sample and the remaining quarter bottles were placed in the same plastic katta. He had tied the opening of plastic katta and sample with white cloth and sealed with the seal of BS vide memo Ex. PW-1/B. He had filled M-29 form (Ex. PW3/A) at the spot as. He had handed over the seal after use to Ct. Satender. On the basis of the complaint, he had prepared asal tehrir (Ex. PW-3/B). He had handed over the same to Ct. Satender and sent him to the police station to get the FIR registered. After some time, Ct. Satender came back with a computerised copy of FIR and original tehrir and handed over the same to him. He had prepared the site plan (Ex. PW-1/C) at the instance of the complainant Ct. Satender. After interrogation, he had recorded the disclosure statement of accused (Ex. PW-1/D), arrested him and conducted his personal search vide memos Ex. PW-1/E & Ex. PW-1/D respectively. Ct. Satender had taken the accused to DDU hospital for his medical examination. After some time, they came back at the spot and took the case property to the PS and deposited it along with form M-29 at malkhana State v/s Kalian Singh Page 6 of 14 Cr. Case No. 13850/2019 of PS. He had sent samples to Excise office through Ct. Malkit for result analysis. He had filled conviction slip of the accused which is Ex. PW-3/C. After completion of investigation, he prepared the charge-sheet and filed the same before the court. This witness had correctly identified the accused present in court. The case property was destroyed vide order no. F.Conf./2019/ 5901-02 dt.18.11.19 issued by AC(Excise) (Ex. P-1). The witness correctly identified one sample quarter bottle of Asli Santra Masaledar desi Sharab for sale in Haryana only (i.e., the case property) which was exhibited as Ex. P-2 in court. This witness was thoroughly cross- examined by Ld. Counsel for the accused.
(iv) PW-4 HC Malkit has deposed that on 17.04.2019, he was posted as constable at PS Bindapur and on the direction of ASI Bharatvir, he had taken the sealed samples of the case property from MHC(M), PS Bindapur and deposited the same at Excise Office, Vikas Bhawan, ITO vide RC No. 76/21/19. He further deposed that he did not tamper with the sealed samples/ case exhibits during the time they were in his possession. The witness was not cross- examined by Ld. Counsel for the accused despite having been given an opportunity to do so.
5. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR, DD No. 63B dated 28.03.2019 and Excise Control Laboratory Result.
State v/s Kalian Singh Page 7 of 14 Cr. Case No. 13850/2019Accordingly, the concerned witnesses were dropped by the prosecution.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC was recorded on 20.10.2022 wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was innocent and falsely implicated. The accused chose not to lead any evidence in his defence.
7. It is argued by Sh. Manish Kaushik, Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of 48 quarter bottles of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court State v/s Kalian Singh Page 8 of 14 Cr. Case No. 13850/2019
10. It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11. The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the cross- examination of PW-3 ASI Bharatvir (the IO) reveals that although he had asked some public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC State v/s Kalian Singh Page 9 of 14 Cr. Case No. 13850/2019 OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"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 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.'' (Emphasis supplied)
13. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
14. Perusal of the record further reveals that there is a delay of about twenty days in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the State v/s Kalian Singh Page 10 of 14 Cr. Case No. 13850/2019 CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
15. In the instant case, alleged recovery was made on 28.03.2019 yet the samples were sent to the Excise Control Laboratory for examination on 17.04.2019, i.e., after about twenty days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
16. Perusal of the record further reveals that PW-1 Ct. Satender as well as PW-3 ASI Bharatvir have stated that PW-3 (the IO) had prepared the seizure memo Ex. PW1/B of the illicit liquor and rukka was thereafter prepared and sent to the police station for registration of FIR though PW-1. Thereafter, present FIR was registered. It is, therefore, clear that the seizure memo of the case property was prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the State v/s Kalian Singh Page 11 of 14 Cr. Case No. 13850/2019 seizure memo Ex. PW-1/B, however, surprisingly it bears the FIR number and it is thus, amazing since the number of the FIR could have come to his knowledge (PW-4) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo which came into existence before registration of the FIR. However, as discussed above, the seizure memo Ex. PW-1/B bears the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
(Emphasis supplied) State v/s Kalian Singh Page 12 of 14 Cr. Case No. 13850/2019
17. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
(Emphasis supplied)
18. Let this court now analyse the evidence appearing on record keeping in mind the above judgments of the Hon'ble High Court of Delhi. In the present case, it is clear from the depositions of PW-1 Ct. Satender, who is the complainant and was present along with the IO (who had prepared the document) as well as PW-3 ASI Bharatvir State v/s Kalian Singh Page 13 of 14 Cr. Case No. 13850/2019 (the IO) that the IO had prepared the seizure memo Ex. PW-1/B before PW-1 Ct. Satender was sent to the police station for registration of the FIR. In such a scenario, it remains unexplained as to how the FIR No. and its details figure on the top of the document Ex. PW-1/B. This creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said document was prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.
19. Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a katta which contained illicit liquor was recovered from the possession of the accused. The accused Kalian Singh is, therefore, acquitted of the offence u/s 33 Delhi Excise Act.
20. This judgment contains 14 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
21. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith. Digitally signed by Deeksha Deeksha Sethi ANNOUNCED IN THE OPEN COURT Sethi Date:
2022.11.15 TODAY, i.e., ON 15.11.2022 16:31:07 +0530 Deeksha Sethi Metropolitan Magistrate-03 South-West District/New Delhi 15.11.2022 State v/s Kalian Singh Page 14 of 14 Cr. Case No. 13850/2019