Delhi District Court
State vs . Rajni on 6 September, 2022
IN THE COURT OF SH. PUNEET PAHWA,
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No.DLST02-009595-2020
IN THE MATTER OF:
State Vs. Rajni
FIR No.75/2020
PS Ambedkar Nagar
U/s 33 of the Delhi Excise Act, 2009
JUDGMENT
A) Sl. No. of the case : CR No. 2487/2020
B) The date of commission of : 27.01.2020
offence
C) The name of the complainant : Ct. Uday Chand, No.1160/SD,
PS Ambedkar Nagar
D) The name and address of : Rajni W/o Sh. Jaiky R/o House
accused No.F-1075, Subhash Camp,
Ambedkar Nagar, New Delhi.
E) Offence complained of : 33 of the Delhi Excise Act, 2009
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 06.09.2022
DATE OF INSTITUTION : 02.09.2020
DATE OF FINAL ARGUMENTS : 06.09.2022
DATE OF JUDGMENT : 06.09.2022
FIR No.75/2020 PS Ambedkar Nagar Page No.1 of 11
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The present case has originated from the charge-sheet filed by the State, against accused Rajni W/o Sh. Jaiky. As per charge-sheet, on 27.01.2020 at about 08:15 P.M., in front of Sulabh Sauchalya, Subhash Camp Jhuggi, New Delhi within the jurisdiction of PS Ambedkar Nagar, accused was found in possession of 150 quarter bottles of Asli Santra maseladar Sharab, for sale in Haryana only.
2. On the basis of the charge-sheet, court took cognizance of the offence and the accused appeared on 01.02.2021, thereafter, she was supplied with copy of charge-sheet and documents in compliance of Section 207 Cr.P.C. Court framed charge against the accused for offence punishable under Section 33 Delhi Excise Act. Charge was read over and explained to her to which she pleaded not guilty and claimed trial.
3. During trial, accused admitted under Section 294 Cr.P.C. the registration of FIR No.75/2022, PS Ambedkar Nagar without admitting its content Ex.D1; register no.19 Ex.D2; RC No.40/21/21 dated 28.02.2020 Ex.D3; and the report of Deputy Chemical Examiner Excise Department, GNCTD is Ex.D4. Also, the State examined three witnesses viz. PW-1 HC Uday Chand, PW-2 W/Ct. Priyanka and PW-3 HC Hemraj.
4. During examination in chief, PW-1 HC Uday Chand deposed that on 27.01.2020, he was posted as Ct. at PS Ambedkar Nagar. On that day, he was on area patrolling duty. While patrolling, at about 8:15 PM, when he reached near Subhash Camp Shauchalya, Dakshinpuri, New Delhi, he observed FIR No.75/2020 PS Ambedkar Nagar Page No.2 of 11 that accused was carrying plastic bag and her behaviour was suspicious. Thereafter, the witness went to the accused and inquired about the material in that bag but accused did not give satisfactory answer. Thereafter, the witness checked that bag and the said bag was found containing quarter bottles of illicit liquor which were meant for sale in Haryana only. Upon inquiry, accused revealed her name as Rajni. Thereafter, the wintess informed the police station and after some time, IO/HC Hemraj alongwith W/Ct.Priyanka reached there. Witness handed over custody of accused alongwith aforesaid bag to the IO and got statement of witness recorded which is Ex.PW1/A. IO requested 4-5 passersby to join the investigation proceedings but none agreed and left without disclosing their details. No written notice was served to those passersby due to paucity of time. Thereafter, IO checked the aforesaid bag and same was found containing 150 quarter bottles of country made liquor on which " Asli Santra Masaledar Desi Sharab for sale in Haryana only...". Thereafter, IO randomly separated one quarter bottle from the said bag as a sample and rest of the case property was put in aforesaid bag. Thereafter, IO tied the mouth of aforesaid bag with the help of white cloth strips and sealed the same with the seal of HR. Thereafter, IO filled form M-29 at the spot and IO seized the aforesaid case property vide seizure memo which is Ex.PW1/B. Seal after use was handed over to the witness. Seal handing over memo is Ex.PW1/C. IO prepared rukka and the same was handed over to the witness for registration of FIR. Thereafter, PW-1 left for PS, got the FIR registered, came back at the spot and handed over the copy of FIR and original rukka to IO. IO prepared site plan Ex.PW1/D, at his instance. Thereafter, IO inquired from the accused and recorded her disclosure statement which is Ex.PW1/E. IO gave notice u/s 41A CrPC to the FIR No.75/2020 PS Ambedkar Nagar Page No.3 of 11 accused. IO recorded statement of witness u/s 161 CrPC. Witness deposed that he can identify the case properties, if shown to him. Witness correctly identified the accused before the Court. PW-1 was duly cross-examined by Ld. Counsel for the Defence.
5. PW-2 W/Ct. Priyanka deposed that on 27.01.2020, she was posted at PS Ambedkar Nagar. On that day, she alongwith IO/HC Hemraj went to the spot i.e. Subhash Camp Shauchalya, Dakshinpuri, New Delhi. There they went to Ct. Uday and one lady whose name was later on revealed as Rajni i.e. accused. Ct. Uday handed over custody of accused to IO. After which, PW2 took custody of accused. Ct. Uday also handed over the illicit liquor to IO. IO got the statement of Ct. Uday recorded which is Ex.PW1/A. IO requested 4-5 passersby to join the investigation proceedings but none agreed and left without disclosing their details. No written notice was served to those passersby due to paucity of time. Thereafter, IO checked the aforesaid bag and same was found containing 150 quarter bottles of country made liquor on which "Asli Santra Masaledar Desi Sharab for sale in Haryana only...". Thereafter, IO randomly separated one quarter bottle from the said bag as a sample and rest of the case property was put in aforesaid bag. Thereafter, IO tied the mouth of aforesaid bag with the help of white cloth strips and sealed the same with the seal of HR. Thereafter, IO filled form M-29 at the spot and IO seized the aforesaid case property vide seizure memo which is Ex.PW1/B. Seal after use was handed over to Ct. Uday. IO prepared rukka and the same was handed over to Ct. Uday for registration of FIR. Thereafter, IO inquired from accused and recorded her disclosure FIR No.75/2020 PS Ambedkar Nagar Page No.4 of 11 statement which is Ex.PW1/E. IO gave notice u/s 41A CrPC to accused. IO recorded statement of PW-2 under Section 161 CrPC. Witness deposed that he can identify the case properties, if shown to him. Witness correctly identified the accused and the case property produced by the MHC(M) before the Court i.e. Ex.P1. PW-2 was duly cross-examined by Ld. Counsel for the Defence.
6. PW-3 HC Hemraj, deposed that on 27.01.2020, he was posted at PS Ambedkar Nagar. On that day, he alongwith W/Ct.Priyanka went to the spot i.e. Subhash Camp Shauchalya, Dakshinpuri, New Delhi. There they met Ct. Uday and one lady whose name was later on revealed as Rajni i.e. the accused. Ct. Uday handed over custody if accused to the PW3. After which Ct. Priyanka took the accused in her custody. Ct. Uday also handed over the illicit liquor to the witness. Witness got the statement of Ct. Uday recorded which is Ex.PW1/A. He requested 4-5 passersby to join the investigation proceedings but none agreed and left without disclosing their details. No written notice was served to those passersby due to paucity of time. Thereafter, he checked the aforesaid bag and same was found containing 150 quarter bottles of country made liquor on which "Asli Santra Masaledar Desi Sharab for sale in Haryana only...". Thereafter, PW-3 randomly separated one quarter bottle from the said bag as a sample and rest of the case property was put in aforesaid bag. Thereafter, PW-3 tied the mouth of aforesaid bag with the help of white cloth strips and sealed the same with the seal of HR. Thereafter, IO filled form M-29 at the spot, which is Ex.PW3/A and he seized the aforesaid case property vide seizure memo FIR No.75/2020 PS Ambedkar Nagar Page No.5 of 11 which is already Ex.PW1/B. Seal after use was handed over to Ct. Uday vide memo Ex.PW1/C. Witness prepared rukka which is Ex.PW3/B and the same was handed over to Ct. Uday for registration of FIR. Thereafter, witness inquired from accused and recorded her disclosure statement which is already Ex.PW1/E. He gave notice u/s 41A CrPC to accused which is Ex.PW3/C. He recorded the statement of witnesses u/s 161 CrPC. Witness deposed that he can identify the case properties, if shown to him and the same is Ex. P-1 (Colly). Witness correctly identified you before the Court. PW-3 was duly cross-examined by Ld. Counsel for the Defence.
7. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him, to which he pleaded innocence and claimed to have been falsely implicated. Accused chose not to lead any defence evidence. Final arguments of both the parties were heard at length.
COURT OBSERVATION:
8. At the outset, it is pertinent to note that Section 33 Delhi Excise Act read as:
"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 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; FIR No.75/2020 PS Ambedkar Nagar Page No.6 of 11
(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.
9. It is the case of prosecution that on 27.01.2020 at about 08:15 P.M., in front of Sulabh Sauchalya, Subhash Camp Jhuggi, New Delhi within the jurisdiction of PS Ambedkar Nagar, accused was found in possession of 150 quarter bottles of Asli Santra maseladar Sharab, for sale in Haryana only, without having any license or permit to possess the same and thereby, accused had committed an offence punishable under Section 33 Delhi Excise Act, 2009. Per contra, it is the Defence of accused that no public witness joined the proceedings. Also, there is discrepancy in time of depositing of case property.
10. In order to prove the alleged offence, the prosecution is first and foremost required to prove the recovery of illicit liquor from the possession FIR No.75/2020 PS Ambedkar Nagar Page No.7 of 11 of accused. In order to prove the said recovery, it is a mandate to comply provision of section 100 (4) of the Cr.PC. Accused is residing in a residential colony but no public person has been examined. Under these circumstances, there is absolute non compliance of Section 100 Cr.PC Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. All the witnesses admitted that there were shops and houses near the spot. It appears that no sincere effort was made to join respectable witnesses from the same locality. Moreover, as per the prosecution, the case property was taken in an auto-rickshaw, however, neither the details of that auto-rickshaw have been furnished nor the driver of that auto-rickshaw has been examined as a witness.
11. In this regard reliance is being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were FIR No.75/2020 PS Ambedkar Nagar Page No.8 of 11 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".
12. In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the Investigating Agency 19.01.2013 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 FIR No.75/2020 PS Ambedkar Nagar Page No.9 of 11 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 names 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 the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining 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".
13. Prosecution has failed to prove when a number of people from the public locality were available, why the testimony of said witnesses were not recorded.
14. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every FIR No.75/2020 PS Ambedkar Nagar Page No.10 of 11 ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal)
662).
15. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused, the benefit of which accrues in her favour. Accused Rajni W/o Sh. Jaiky is accordingly acquitted for the offence under section 33 Delhi Excise Act. Her Bail Bond stands cancelled. Surety Bond stands discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on proper receipt and identification.
16. Case property, if any, be confiscated to the State after the expiry of the period of the appeal.
17. File be consigned to Record Room, after due compliances.
(PUNEET PAHWA) CHIEF METROPOLITAN MAGISTRATE DISTRICT SOUTH, SAKET COURTS COMPLEX Announced in the open Court On 06th September, 2022 FIR No.75/2020 PS Ambedkar Nagar Page No.11 of 11