Delhi District Court
Fir No:750/17 Ps: Dabri State vs . Surender on 19 April, 2022
[1]
IN THE COURT OF ASHISH KUMAR MEENA
METROPOLITAN MAGISTRATE-02, DWARKA COURT,
NEW DELHI.
FIR No.:750/2017
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 27603/2018
State
Vs.
Surender
S/o Sh. Budh Singh
R/o RZV-23, Nanda Block,
Mahavir Enclave-I, Delhi
...... Accused
1. Sl. No. of the case : 27603/2018
2. The date of offence : 07.12.2017
3. The name of the complainant : Ct. Devender
4. The name of the accused : Sunrender
5. The offence complained : 33 Delhi Excise Act
6. The plea of the accused : Pleaded not guilty
7. Argument heard on : 13.04.2022
8. The date of order : 19.04.2022
9. The final order : Acquitted
JUDGMENT:
1. Briefly stated, accused Surender is facing trial for the allegations that on 07.12.2017, at about 3.10 PM, at H. No. RZV-23, Nanda Block, Mahavir Enclave, Part-I, New Delhi within the jurisdiction of PS Dabri, accused was found in possession of 45 quarter bottles of illicit liquor of Cash Santara for sale in Haryana only and 45 quarter bottles of NV Bestow Whiskey for sale in Haryana only. Upon registration of FIR, FIR No:750/17 PS: Dabri State Vs. Surender [2] investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused was summoned after taking cognizance of offence. The accused was charged u/s 33 of the Delhi Excise Act and accordingly, the charge was framed against the accused to which accused pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined two witnesses. Ct. Devender (PW1) (Complainant) has deposed that 07.12.2017, he was posted as Ct. at PS Dabri and at about 3.10 PM, he alongwith Ct. Devender, No. 904/SW were patrolling in beat no. 6 and when they reached house no. RZV- 23, Nanda Block, Dabri, New Delhi, they found one person sitting near on the cot and one gunny bag was kept near his cot. When they saw him, he tried to hide the gunny bag under the cot. Upon inquiry and search they came to know that 45 qurater bottles were kept loose in the gunny bag and 45 quarter bottles in a petty. He informed the Duty Officer about the same and after some time, HC Ishwari Lal came to spot. He handed over the case property and the accused Surender. HC Ishwari Lal recorded his statement which is Ex. PW1/A. He prepared the tehrir and sent him to the PS while handing over the tehrir. He came back to the spot alongwith copy of FIR and original tehrir. IO prepared the site plan at his instance as Ex. PW1/B. IO seized the illicit liquor vide seizure memo Ex. PW1/C. IO has recorded disclosure statement of accused Ex. PW1/D in his presence. IO arrested the accused vide arrest memo Ex. PW1/E. IO took out two samples of the case property and sealed them with the seal of 'IL' and FIR No:750/17 PS: Dabri State Vs. Surender [3] handed over the seal to me. He went to PS and deposited the seal with MHC(M). IO recorded his statement. During examination prosecution has produced case property i.e. one quarter bottle of 'Asli Santara Masaledar Desi Sharab' and one quarter bottle of 'Besto Whiskey' in unsealed condition as Ex. P1 and Ex. P2. MHC(M) has also produced one destruction order of Deputy Commission Excise dated 07.04.2018 on which at serial no. 2, the present FIR and its case property is mentioned for destruction. The same is Ex. P3.
4. PW2, HC Ishwari Lal has also deposed on same lines of PW1. Apart from statement of complainant, PW2 has deposed that he prepared rukka vide Ex. PW2/1 and handed over the same to Ct. Devender who came back to the spot alongwith copy of FIR and original tehrir. DD no. 68B is Ex. PW2/2. DD no. 65B is Ex. PW2/3. Personal search memo of accused was perpared vide Ex. PW2/4.
5. Apart from these documents, the accused admitted the genuineness of FIR and Chemical examiner report u/s 294 Cr.PC, without admitting the content of the same. Prosecution evidence was thereafter closed.
6. Statement of accused was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case and recovery of case property has been falsely implanted upon him. Further, the accused did not wish to lead defence evidence.
7. Final arguments heard. Case file perused.
8. Short point for determination before this court is as under:
FIR No:750/17 PS: Dabri State Vs. Surender [4] '' Whether on 07.12.2017, at about 3.10 PM, at H. No. RZV-23, Nanda Block, Mahavir Enclave, Part-I, New Delhi, accused was found in possession of illicit liquor without any licence and permit punishable u/s 33 Delhi Excise Act''
9. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution case beyond reasonable doubt. Ld. APP for the state submitted that there is sufficient material available on record to convict the accused and hence prayed for conviction of accused as per the evidence produced by the prosecution witnesses.
10. It is argued by the Ld. Counsel for the accused that the accused is innocent and falsely implicated in the present matter. Ld. Counsel submitted that the Prosecution has failed to prove recovery made against the accused beyond reasonable doubt. Ld. Counsel for the accused has pointed out the material contradiction made during the examination of prosecution witnesses. Furthermore, Ld. Counsel for the accused submitted that be accused is liable to the acquitted in the present case.
11. In the present case accused is charged under Section 33 of Delhi Excise Act. Before appreciating the evidence in hand, it is important to go through the relevant provision of the Act:
Section 33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act--
(a) manufactures, imports, exports, transports or FIR No:750/17 PS: Dabri State Vs. Surender [5] 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, 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 but which may extend to one lath rupees.
It is also significant to note that Section 52 of Delhi Excise Act presumes that accused has committed the offence (u/s 33 of the act) for the possession of which accused is unable to account satisfactorily. However, this presumption can be rebutted if proved contrary. It is further to be noted that it is duty of prosecution to fulfill the initial requirement of u/s 52 of the Act. Section 52 of the Act lays down as follows:
Section 52. 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, implement or FIR No:750/17 PS: Dabri State Vs. Surender [6] apparatus, for the possession of which he is unable to account satisfactorily.
(2) XXXXXXX
12. 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. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of liquor in this case, makes the prosecution version highly doubtful. Incident is stated to have taken place at about 3.10 PM and it is evident from the testimony of PW-1 and PW-2 that accused was apprehended alongwith the alleged illicit liquor at public place, but still no public independent person was cited as a witness in this case. Though all the witnesses have stated in their testimony that some public persons were requested to join, but none of them agreed. Therefore, it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution and all these facts makes the alleged recovery very doubtful. Severe contradiction can be seen between the statement of both witnesses. No such document is available on record, which reflects that IO has taken any action to make sure that he could arrange for independent witnesses. It also to be noted that mere statement of IO does not prove the inability of IO of non joining the independent witnesses.
13. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may FIR No:750/17 PS: Dabri State Vs. Surender [7] 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".
14. 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 that in every case the police officials are to be treated as unworthy of reliance but their failure to FIR No:750/17 PS: Dabri State Vs. Surender [8] 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".
15. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court 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 FIR No:750/17 PS: Dabri State Vs. Surender [9] supplied]
16. 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 and substantiates the defence version that there is false implication of the accused in the present case and that the recovery has been falsely planted upon the accused. Further, considering facts and circumstances of the present case in the light of ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the above- mentioned facts create serious doubt on the case of the prosecution.
17. Further, as per evidence on record, the seal after use was not given to any independent public person. Even, no seal handing over memo is on record. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is 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 FIR No:750/17 PS: Dabri State Vs. Surender [10] the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
18. Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"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."
19. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and 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 shall be entered vide a separate entry and 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. In the present case, all these departures or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
20. From the aforesaid discussion, it is very clear that the FIR No:750/17 PS: Dabri State Vs. Surender [11] manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of liquor, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
21. Hence, accused Surender S/o Sh. Budh Singh R/o RZV- 23, Nanda Block, Mahavir Enclave-I, New Delhi stands acquitted of the offence under section 33 of Delhi Excise Act, he has been charged and tried with. Ordered accordingly.
Digitally signed ASHISH by ASHISH
KUMAR MEENA
KUMAR Date:
MEENA 2022.04.19
15:42:18 +0530
Announced in the open court (Ashish Kumar Meena)
on 19.04.2022 MM-02/Dwarka Court,
New Delhi, 19.04.2022
It is certified that the present judgment runs into eleven Digitally signed pages and each page bears my signature. ASHISH by ASHISH KUMAR KUMAR MEENA Date:
MEENA 2022.04.19
15:42:23 +0530
Ashish Kumar Meena)
MM-02/Dwarka Court,
New Delhi, 19.04.2022
FIR No:750/17 PS: Dabri State Vs. Surender