Delhi District Court
17. In The Case Of "Massa Singh vs . State Of Punjab" 2000(2) C.C. on 15 February, 2020
IN THE COURT OF SHRI ABHISHEK KUMAR,
METROPOLITAN MAGISTRATE : WEST-05,
TIS HAZARI COURTS, DELHI
FIR No. : 64/2015
P.S. : Anand Parbat
Case No. 68866/2016
State
v.
Dharmender @ Dharmu, S/o Sh. Phula Ram,
R/o House No. CN-665, Taliwali Basti, Anand Parbat, Delhi.
Date of institution of case : 18.05.2015
Date of reserving the judgment : (not reserved)
Date of pronouncement of judgment : 15.02.2020
JUDGMENT
1. S. No. of the Case: 68866/2016
2. Date of Commission of Offence: 26.01.2015
3. Date of institution of the case: 18.05.2015
4. Name of the Informant: SI Vidyakar Pathak
5. Name of the accused : Dharmender @
Dharmu
6.Offence complained or proved: 33 Delhi Excise Act
7. Plea of Accused: "Not Guilty"
8. Final Order: Acquitted
9. Date of Final Order: 15.02.2020
FIR No. 64/15 State v. Dharmender @ Dharmu 1 of 13
PS Anand Parbat
BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly, the facts of the case as per prosecution are that on 26.01.2015 at about 4:00 P.M. in front of the Jhuggi No. 665, Taliwali Basti, Anand Parbat, Delhi, the accused was found in possession of 05 cartons each containing 48 quarter bottles of illicit liquor as per the seizure memo Ex.PW3/A without any permit or license. The present FIR was registered against the accused and after the completion of the investigation, the chargesheet was filed before the Court. The cognizance of the offence was taken and summons were issued to the accused. The copy of the charge-sheet and the documents in compliance of Section 207 CrPC were supplied to the accused.
2. The charge was framed against the accused for offence punishable under Section 33 Delhi Excise Act on 19.05.2016 to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the prosecution evidence.
3. In prosecution evidence, the prosecution has examined 07 witnesses. The report of the chemical examiner was admitted under Section 294 CrPC. The testimony of the witnesses in a nutshell are as below:
PW1 HC Deepak Rana: The witness deposed that on 26.01.2015, he registered the present FIR on the basis of FIR No. 64/15 State v. Dharmender @ Dharmu 2 of 13 PS Anand Parbat rukka brought by Const. Mehtab at about 5:40 P.M. and sent by SI Vidyakar Pathak. The same is Ex.PW1/A (OSR). He also made endorsement on the rukka which is Ex.PW1/B. PW2 HC Anand Singh: The witness deposed that on 12.02.2015, he took 05 sample quarter bottles of liquor at the Excise Lab, Vikas Bhawan, I.P. Estate vide R.C. No. 11/21/15.
PW3 SI Vidyakar Pathak: The witness deposed that on 26.01.2015, he alongwith Const. Mehtab was on patrolling duty and upon secret information, they apprehended the accused while he was shifting one carton containing illicit liquor towards his jhuggi and upon checking found 04 other cartons of illicit liquor. All the cartons were containing 48 quarter bottles of illicit liquor in each carton. Thereafter, he filled form No. M-29 which is Ex.PW3/C and seized the illicit liquor from the government seal vide seizure memo Ex.PW3/A. He also prepared rukka which is Ex.PW3/A and sent Const. Mehtab to the police station for the registration of the FIR. Thereafter, Const. Mehtab came back on the spot alongwith copy of the FIR and original rukka. HC Lokender was marked with the investigation of the case FIR No. 64/15 State v. Dharmender @ Dharmu 3 of 13 PS Anand Parbat and he prepared site plan at his instance which is Ex.PW3/D. PW4 HC Anand Kumar: The witness deposed that on 26.01.2015, he was posted in the Intelligence Bureau of Excise Department and he has also received secret information regarding illicit liquor in Gali No. 10, Taliwali Basti, Anand Parbat. He went to the said place and found SI Vidyakar Pathak who has apprehended the accused Dharmender and has also seized 05 cartons of illicit liquor.
PW5 ASI Vijender Singh: The witness deposed that on 26.01.2015, SI Vidyakar Pathak deposited the case property in sealed condition with the seal of APRVT-V. He also submitted 05 sample quarter bottles in sealed condition. He had made relevant entry in Register No. 19 at entry No. 2131. The same is Ex.PW5/A (OSR). He has also handed over the sample quarter bottles to Const. Anand Singh vide RC No. 11/21/15. He has made the entry in this regard in Register No. 21 which is Ex.PW5/B (OSR).
PW6 HC Lokender Kumar: The witness deposed that on 26.01.2015, he was marked with further investigation FIR No. 64/15 State v. Dharmender @ Dharmu 4 of 13 PS Anand Parbat of the case in the present FIR. Further, Const. Mehtab handed the copy of the FIR and original tehreer to him. Thereafter, he alongwith Const. Mehtab went to the spot and met SI Vidyakar Pathak. Thereafter, SI Vidyakar handed over the relevant documents and the accused to his possession. He also found Const. Anand Kumar from Excise Department at the spot and recorded his statement. He arrested the accused and conducted his personal search vide memos Ex.PW6/A and Ex.PW6/B. PW7: Const. Mehtab Singh: The witness deposed that on 26.01.2015 he was on patrolling duty with SI Vidykar Pathak. They received secret information in Taliwali Basti and apprehended the accused upon the basis of the secret information alongwith the illicit liquor. He was also sent to the police station by the IO and he brought the government seal. All the case properties were seized in his presence by SI Vidyakar Pathak with the seal of "ARPVT-V" vide seizure Ex.PW3/A. Thereafter, SI Vidyakar filled form No. M-29 in his presence. Then, IO prepared tehreer and he took the same to the police station and got the FIR registered and came back at the spot with HC Lokender. Accused was arrested in his presence and the case property was deposited in malkhana.
FIR No. 64/15 State v. Dharmender @ Dharmu 5 of 13 PS Anand Parbat
4. After the prosecution evidence was closed, the matter was kept for the statement of the accused. The same was recorded on 07.02.2020. The accused did not lead the defence evidence. Thereafter, the final arguments were heard and matter was kept for orders. I have given thoughtful consideration to the submissions of the accused and the State.
5. Before proceeding further, it will be pertinent to go through Section 33 of the Delhi Excise Act, 2009 with which the accused has been charged in the present case which is as follows:-
33 Delhi Excise Act, 2009. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. - whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any license, permit or pass, granted under this Act -
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale;
(d) uses, keeps or has in his possession any material, still utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari;
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, FIR No. 64/15 State v. Dharmender @ Dharmu 6 of 13 PS Anand Parbat shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees.
6. In the present case, the prosecution has alleged that the police officials of PS Anand Parbat recovered 240 quarter bottles of illicit liquor on 19.05.2016 in front of Jhuggi No. 665, Taliwali Basti, Anand Parbat from the possession of the accused and the act of the accused violated the provision of Section 33 (F) of the Delhi Excise Act. Thus, the prosecution was obliged to prove that the accused was found in the possession of intoxicant beyond the permissible limits without any license or permit.
7. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It has to be seen whether the prosecution had been able to establish the guilt of the accused beyond reasonable doubt.
8. In the present case, the report of the chemical examiner is not in dispute as the same was admitted by the accused under Section 294 CrPC. The fact that the alleged recovery of the bottles were containing liquor has been established on the basis of sample sent to the Lab and the FIR No. 64/15 State v. Dharmender @ Dharmu 7 of 13 PS Anand Parbat report has been admitted by the accused under Section 294 CrPC which is Ex.AD-1. The amount of the bottles shown to have been recovered are 240 quarter bottles and the same are beyond the permissible limits as per the Delhi Excise Act. Therefore, the only thing left to be proved beyond reasonable doubt is the fact that the illicit liquor as stated above was recovered from the possession of the accused.
9. The counsel for the accused has argued that the most important ingredient to establish the offence under section 33 Delhi Excise Act is the possession of illicit liquor and the prosecution has failed to establish that the illicit liquor as mentioned in the seizure memo was recovered from the possession of the accused as there are no public witnesses who were joined in the investigation by the investigating agency and there is no notice that is the part of the record to show the efforts on the part of the officers to join the public witnesses in the investigation. Further, there are no departure entries brought on record to show that the witnesses were on patrolling duty. The counsel has pressed on the aspect that the proceedings as shown by the police officials were not done at the spot and were conducted by them while sitting in the police station which makes the version of the police officials improbable.
10. On the other hand, the Ld. APP for the State has argued that the prosecution has succeeded in establishing the case against the accused as all the witnesses have correctly identified the accused as the person from whose possession the illicit liquor was recovered.
FIR No. 64/15 State v. Dharmender @ Dharmu 8 of 13 PS Anand Parbat
11. In the present case, PW3 SI Vidyakar Pathak and PW7 Const. Mehtab Singh are the material / recovery witnesses. Both the witnesses have stated that they were on Patrolling duty and when they reached at Taliwali Basti, they met one secret informer who informed them about the accused being in the possession of illicit liquor outside his house. Thereafter, they went to the place as stated by the secret informer and found the accused in the possession of the illicit liquor.
12. The counsel for the accused has rightly pointed out that the prosecution could not bring on record the departure entries to show that both the recovery witnesses were on patrolling duty. Both the witnesses could not state at what time they have left the police station for patrolling duty. Both the witnesses have also not stated the number of the departure entry by which they left for patrolling duty. Making daily diary entry is very important aspect of the police working. It is required to show that a particular official had left the police station for investigation or any other official work. The absence of the same casts doubt with regard to the departure of the police officials.
13. The version of the prosecution also becomes doubtful as it has been stated by PW3 SI Vidyakar Pathak that after the registration of the FIR, he handed over the accused and the seized case property to the 2 nd IO namely PW6 HC Lokender Kumar. He has also stated that he left the FIR No. 64/15 State v. Dharmender @ Dharmu 9 of 13 PS Anand Parbat spot at about 6:45 P.M. Further, it has been stated by HC Lokender that he deposited the case property in the malkhana after concluding the proceedings at the spot. However, there is a material contradiction with regard to the handing over of the case property in the police station as it has been deposed by PW5 ASI Vijender Singh who was the MHC(M) on 26.01.2015 that the case property was deposited in a sealed condition by SI Vidyakar Pathak. As per the version of the witnesses, SI Vidyakar Pathak had left the spot by handing over the case property to the 2 nd IO. Therefore, the claim of the police officials become doubtful and there is no explanation as to how the case property was deposited by SI Vidyakar Pathak who already left the spot and HC Lokender was in the possession of the same. There is also a contradiction in the testimony of PW3 and PW7 who are the recovery witnesses. It has been stated by PW7 that IO has prepared handing over memo of the seal to him while sealing the case property. However, PW3 has stated categorically that he did not prepare any handing over memo regarding seal which was given to Const. Mehtab. It is difficult to understand that two witnesses who were together at the spot are unable to concur with each other on the point of handing over memo of the seal vide which the case property was sealed.
14. There is no departure entry with regard to the issuance of the seal to Const. Mehtab from the police station and its deposit again. It is to be noted that as per the version of the witnesses, the seal by which the case property was sealed remains in the police station. Then, it is expected that the same shall be issued through a proper mechanism by making FIR No. 64/15 State v. Dharmender @ Dharmu 10 of 13 PS Anand Parbat entries and the said entries have to be placed on record in order to show that it was issued on a particular day and time and was taken out of the police station. It is also required to show that there is no tampering with the case property at any point of time or that the case property was sealed at the place as stated by the police officials.
15. It has been stated by the witnesses PW3 and PW7 that they have asked some public persons to join the investigation before raiding the accused at the spot. But none of the public persons joined the investigation. It has not been stated by the witnesses as to how many persons they have asked to join the investigation and in what duration they raided the accused after they reached the spot which makes the claim of the PW3 doubtful with regard to the fact that whether he has asked any public witnesses to join the investigation. The testimony of the recovery witnesses are silent with regard to the joining of the witnesses at the time of recovery of the illicit liquor and preparation of the seizure memo. Though it is not essential always to join the public witnesses and the testimony of the police officials can be relied upon but when there are contradictions/discrepancies in their testimonies, it becomes pertinent that their testimony shall be corroborated through independent witnesses.
16. The case of the prosecution is suffering from material defects and there are some serious discrepancies found in the testimony of recovery witnesses. In these circumstances, it was necessary on the part of the IO FIR No. 64/15 State v. Dharmender @ Dharmu 11 of 13 PS Anand Parbat to have joined some independent witnesses to the recovery and in the absence of the same, the version put forth by the prosecution is not reliable. The prosecution could not prove that the alleged illicit liquor was recovered from the possession of the accused.
17. In the case of "Massa Singh Vs. State of Punjab" 2000(2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under : "The recovery has been effected from a public place. The investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
18. In the case of "Chana Singh Vs. State" 1986 Crl. Rev. No. 720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as and afterthought.
19. In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
FIR No. 64/15 State v. Dharmender @ Dharmu 12 of 13 PS Anand Parbat
20. In the light of the above discussion, the prosecution has failed to establish beyond reasonable doubts, the fact that the accused was found in the possession of the illicit liquor as seized by PW3. The evidence brought on record is insufficient to convict the accused. Accordingly, the benefit of doubt has to be given to the accused and the accused Dharmender @ Dharmu stands acquitted for the offence under section 33 Delhi Excise Act, 2009.
21. Accused is directed to furnish Personal Bonds under section 437A of CrPC in the sum of Rs.10,000/- which would remain valid for a period of six months.
Digitally signed by ABHISHEK ABHISHEK KUMAR
KUMAR Date: 2020.02.19
16:05:07 +0530
Announced in open Court (ABHISHEK KUMAR)
on 15th day of February 2020 Metropolitan Magistrate
West-05, Delhi
FIR No. 64/15 State v. Dharmender @ Dharmu 13 of 13
PS Anand Parbat