Delhi District Court
State vs Bakshish on 7 November, 2023
IN THE COURT OF MS. NEHA PANDEY
METROPOLITAN MAGISTRATE06, NORTH,
ROHINI COURTS,DELHI
State Vs Bakshish Singh
FIR No. 243/2019
PS Adarsh Nagar
U/s 33/38 Delhi Excise Act
CIS No. 5899/2019
JUDGEMENT
1) CNR Number of the case : DLNT020118102019
2)The date of commission of offence : 01.08.2019
3) The name of the complainant : HC Anil Kumar
4) The name & parentage of accused : Bakshish Singh S/o Satnam Singh R/o Near DDA park, TPT Centre, Jhuggi, Azadpur, Delhi.
5) Offence complained of : u/s 33/38 Delhi Excise Act 6) The plea of accused : Pleaded not guilty 7) Final order : Acquitted Date of Institution : 18.11.2019 Judgment reserved on : 18.09.2023 Judgment announced on : 07.11.2023 THE BRIEF REASONS FOR THE JUDGMENT: 1) Case of the prosecution in brief is that on 01.08.2019, at
about 7:30 pm, near DDA Park, TPT centre, Azadpur, Delhi within the jurisdiction of PS Adarsh Nagar, accused was found in FIR No. 243/2019 State Vs Bakshish Singh 1/11 possession of illicit liquor consisting of 36 quarter bottles Santra Masaladar Deshi Sharab for sale in Haryana only without any permit or licence and in contravention of notification issued by Delhi Administration and thereby committed an offence punishable u/s 33/38 Delhi Excise Act.
2) After completion of investigation, chargesheet was filed in the court and my Ld. Predecessor took the cognizance of the offences u/s 33 Delhi Excise Act and after complying with the provisions of Sec. 207 Cr.PC, arguments on charge were heard. Vide order dated 24.06.2022 charge was framed u/s 33/38 Delhi Excise Act against the accused to which he pleaded not guilty and claimed trial. Thereafter, the case was proceeded for prosecution evidence.
3) In support of its case, the prosecution examined four witnesses.
4) PW1 HC Sandeep deposed that on 01.08.2019 he was on patrolling duty along with HC Anil Kumar at beat no.12 and at around 6:50 PM upon reaching at TPT Centre they met one secret informed who told that if raid be conducted at DDA Park near Kabadi shop then some illicit liqour can be found in possession from unknown person. Thereafter he along with HC Anil Kumar reached at the spot alongwith secret informer and upon reaching there they found one person was selling illicit liqour and upon checking they found some empty quarter bottles of illicit liqour and a cloth bag which was full of illicit liqour was found. Thereafter they tried to include 45 public persons in the FIR No. 243/2019 State Vs Bakshish Singh 2/11 investigation but they all refused due to their personal reasons and no notice could be served to them due to paucity of time. Upon making inquiry accused revealed his name as Bakshish S/o Satnam and on checking the cloth bag it was found 36 quarter bottles of Santra Desi Sharab. IO prepared seizure memo vide Ex.PW1/A. IO took out one quarter bottle as a sample and sealed the same with the seal of 'AK' with the Sr.no.1A and remaining 35 quarter bottles were sealed with the seal of 'AK'. IO prepared form no.M29, tehrir and the same was handed over to him in order to register the FIR and after registration of FIR he came back at the spot with the copy of FIR and original tehrir. HC Mohd.Razaq came with him from the PS at the spot and the investigation was handed over to HC Mohd. Razaq. First IO/HC Anil Kumar handed over the accused along with the illicit liqour to second IO/HC Mohd.Razaq. IO arrested and personally searched accused person vide Ex.PW1/B and PW1/C. Accused was medically examined and he was sent to the lock up. Witness correctly identified the accused.
During crossexamination by Ld. defence counsel he stated that he did not know the name of secret informer and the same was informed to IO/HC Anil Kumar. He admit the address of the spot where the accused was selling the illicit liquor is near TPT Centre adjacent to DDA park. He denied the suggestion that there is no DDA park adjacent of the spot and accused was not present at the spot and he was not arrested from the spot, nor accused was present near Chapper near shop no.26, near park, TPT Centre, FIR No. 243/2019 State Vs Bakshish Singh 3/11 Azadpur. He admit that he recovered 36 quarter bottles of illicit liqour. He admit that he took the accused on the motorcycle and were patrolling on the said motorcycle, he denied that nothing was recovered from the possession of the accused rather the same was planted on him in the PS.
5) PW2 ASI Anil who was on patrolling duty alongwith PW 1 HC Sandeep who deposed on the same lines as PW1 in his chief examination as well as in his cross examination.
6) PW3 ASI Md. Razak who deposed that on 01.08.2019 he alongwith constable Sandeep when he returned to the spot after registration of the FIR. He prepared the site plan Ex.PW3/A. Thereafter the accused was arrested and personally searched vide memo Ex.PW1/B and C, Accused was locked up in the police lockup and the case property was submitted in the Malkhanna. On next day accused was sent to the JC. On 27.09.2019 the sample taken was sent to ITO Excise for result and result was duly received Exhibited as PW3/A. Witness was not cross examined despite opportunity.
7) PW4 ASI Lalit Chander who is Duty officer and formal witness. He stated that on 01.08.2019 at 9:26 pm Ct. Sandeep handed over him the rukka in order to register the FIR and he recorded the FIR. original FIR register Ex.P1(OSR) and made an endorsement on the rukka Ex.P2. Witness was not cross examined by defence counsel despite opportunity given.
8) Thereafter, the prosecution evidence was closed on dated 15.04.2023 and statement of accused u/s 313 Cr.P.C was recorded FIR No. 243/2019 State Vs Bakshish Singh 4/11 on 15.04.2023 wherein he stated that he was falsely implicated in the present case and he did not opted for defence evidence. Hence DE stands closed. Thereafter, the matter was fixed for final arguments.
9) Arguments on behalf of the accused had been advanced by Shri Ashish Tilwani, and for Prosecution by Shri Shrawan Babu, Ld. APP for the State.
10) Both the sides have been carefully heard and the record have been perused.
11) It is fundamental 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 general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
12) Relying upon Section 52 of the Delhi Excise Act, learned Assistant Public Prosecutor for the state had argued that where the accused is charged of commission of the offence punishable Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary. The said argument does not find favour with this Court. Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of offence in certain cases. (1) In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, FIR No. 243/2019 State Vs Bakshish Singh 5/11 implement or apparatus, for the possession of which he is unable to account satisfactorily.
(2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
13) 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, then the accused can be called upon to account for the same. 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.
14) It is transpired from the testimony of prosecution witnesses i.e PW1 HC Sandeep and PW2 ASI Anil who are stated to be on patrolling duty on 01.08.2019 as well as other PWs i.e. PW3 IO ASI MD Razaak who is also stated to have reached the spot on that day, that the place where the accused was allegedly apprehended was a public place and public persons were also FIR No. 243/2019 State Vs Bakshish Singh 6/11 passing through the spot which was a busy area and also having shops in its vicinity, however, despite the availability of the pubic persons at the spot, there is complete lack of genuine and sincere efforts on the part of police officials to join the public persons to the proceedings. This casts a doubt on the fairness of the investigation.
15) In the present case, accused has been charged for possession of gatta petti consisting of 36 quarter bottles of illicit liquor in each petti without permit or licence, however he has taken the plea of false implication, planting of above said illicit liquour upon him, absence of public witness despite their availability and preparation of all documents by the police officials while sitting at Police Station to falsely implicate in the present case. From the testimony of PW1 HC Sandeep and PW 2 ASI Anil who are stated to be on patrolling duty on the date of incident i.e. 01.08.2019, it is surfaced that the place of incident, from where accused was allegedly apprehended with illicit liquor, was a public place and public persons were passing through the spot at the relevant time, however, there is complete lack of any sincere efforts on the part of police officials to join public witnesses to the proceedings. It is surfaced from the testimony of prosecution witnesses that no public persons were requested to join the investigation by the IO. IO PW3 Md. Razak categorically stated in his cross examination that he did not gave any notice to the public witnesses who refused to join the proceedings. PW 1 and PW2 also admitted that spot of incident FIR No. 243/2019 State Vs Bakshish Singh 7/11 is frequented by public; IO did not served any legal notice to the public persons who refused to join the proceedings. It is well settled that the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. At least in the facts and circumstances of the case, in my opinion, IO could very well have served the passersby with notice in writing to join the police proceedings. It is pertinent to note that IO has not even made a note of the excuses given by the above said passersby for not joining the proceedings. Also there is no explanation from the side of IO as to why he did not record the excuses given by the passersby who were requested to join the police proceedings. At this juncture, it would be pertinent to refer to some case laws.
16. In a case law reported as "Roop Chand Vs. The State of Haryana", 1999(1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:
It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the FIR No. 243/2019 State Vs Bakshish Singh 8/11 name and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the investigating officer must have proceeded against them under relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
17) Moreover, as per the version of the prosecution, accused was in possession of illicit liquour without any licence/permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to have 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.
18) 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 "AK". However, neither any handing over memo FIR No. 243/2019 State Vs Bakshish Singh 9/11 nor returning memo of the seal was prepared by IO. Thus, tampering may not be ruled out as sealed case property and accused were with the police officials till the time case property was deposited in Malkhana. Hence, Prosecution has completely failed to prove that the case property remained intact and was not tampered with till the time it was produced in the Court which was more important when the seal remained with the police official of the same police station. 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).
19) 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 creates a doubt on the very recovery of illicit liquour 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 is insufficient to record a finding of guilt of the accused. Considering the facts that no independent witness was cited or examined and DD entries not FIR No. 243/2019 State Vs Bakshish Singh 10/11 proved, when kept in juxtaposition to each other, shrouds clouds of suspicion over the prosecution version.
20) Thus, this court is of the considered view that the benefit of doubt in the present case be given to the accused and he is entitled to be exonerated of the charges against him in the present case. Thus, accused Bakshish S/o Shri Satnam Singh is hereby acquitted of the offence punishable under Section 33/38 of the Delhi Excise Act.
Announced in open court (NEHA PANDEY)
on 07th November, 2023 MM6/North District
Rohini Courts/Delhi.
FIR No. 243/2019 State Vs Bakshish Singh 11/11