Delhi District Court
State vs . Soniya on 22 January, 2022
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 448/2017
U/s 33/38 of Delhi Excise Act
PS: Jahangir Puri
State vs. Soniya
Date of Institution of case:29.08.2018
Date of Judgment reserved: 22.01.2022
Date on which Judgment pronounced:22.01.2022
JUDGMENT
Case Number : 4734/2018
Date of Commission : 24.09.2017
of offence
Name of the : HC Rajesh Kumar, PIS No. 28030818
complainant
Name and address of : Soniya W/o Sonu
the accused Jhuggi No. K153/1
Near by Metro Apartment, Jahangir Puri, Delhi.
Offence complained : 33/38 of Delhi Excise Act
of
Plea of accused : Not guilty
Final Order : Acquitted
Digitally signed
by RICHA
RICHA SHARMA
SHARMA Date:
2022.01.22
15:03:51 +0530
FIR No. 448/17
State Vs. Soniya Page 1 of 14
BRIEF REASONS FOR DECISION:
1. The case of the prosecution shown of unnecessary details is, that on 24.09.2017, at about 02:00 pm, at House No. K - 153/1, in front of Metro apartment, Jahangir Puri, Delhi, within the jurisdiction of Police Station Jahangir Puri, accused Soniya was found in possession of 01 plastic katta, containing 19 quarter bottles of illicit liquor of make Raseela Santra Masaledar Desi Sharab, for sale in Haryana only, without any permit or license. Thus, according to prosecution, accused has committed an offence punishable under Section 33/38 of the Delhi Excise Act, 2009.
Further, accused was found unlawfully transporting the illicit liquor without permit. Thus, according to prosecution, accused has committed offence punishable under Section 33/38 of the Delhi Excise Act, 2009. Thereafter, upon investigation statements of witnesses were recorded. Subsequently, an FIR was registered against the accused.
2. Investigation was completed and police report under section 173 Cr.P.C. was filed under section 33 of the Delhi Excise Act, 2009 of the prescribed duty. Accused also committed an offence punishable u/s 38 of Delhi Excise Act, 2009 as per the investigating agency and charges were framed under this section as well.
3. Copy of charge sheet and annexed documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused was framed under section U/s 33/38 of the Delhi Excise Act, 2009, vide order dated 08.08.2019. Thereafter, accused pleaded not guilty and claimed trial.
Digitally signedRICHA by RICHA SHARMA SHARMA Date: 2022.01.22 15:03:56 +0530 FIR No. 448/17 State Vs. Soniya Page 2 of 14
5. In order to prove its case, prosecution examined six witnesses.
6. PW1 is HC Rajesh, No. 373/NW, PS Jahangir Puri. He deposed, that on 24.09.2017, he was posted at PS Jahangipuri as a H/Constable. On that day, he alongwith Jaganlal, W/Ct. Pinki and Ct. Vijay were on patrolling duty in the area of K Block, Jahangirpuri. They met with a secret informer and he informed him that one lady is selling liquor at H. No. K 153 in front of metro apartment, Jahangir Puri. He requested 2 to 3 public persons to join the investigation but none of them agreed and left the spot without disclosing their name and addresses.
He instructed Ct. Vijay that after purchasing liquor from the lady, he would give signal to them. They stood at a distance of about 50 meter from the spot. Thereafter, Ct. Vijay went to the above mentioned house and after purchasing one quarter bottle for Rs.100/ from the above mentioned lady, he gave signal to them with his hand. Immediately, he alongwith Ct. Jaganlal and W/Ct. Pinki entered in the above mentioned house.
W/Ct. Pinki had apprehended the above mentioned lady and on inquiry the lady revealed her name as Soniya. One plastic katta containing 19 quarter bottles of illicit liquor of make Rasila Santra Masaledar Desi Sharab was recovered from the possession of accused Soniya. Ct. Vijay also handed over to him quarter bottle which he had purchased from the possession of accused. He prepared pullanda of one quarter bottle which Ct. Vijay had given to him and sealed it with the seal of R.K. Thereafter, he took out 2 quarter bottles from the plastic katta and remaining 17 quarter bottles were again put into the plastic katta. He prepared pullanda of quarter bottle and remaining liquor and sealed it with the seal of RK. He also filled M 29 Form. Thereafter, he seized the recovered liquor and sample vide memo, which is Ex. PW1/A. M29 Form is exhibited as Ex. PW1/B. Thereafter, he prepared rukka as Ex. PW1/C and handed over the same to Ct. Jaganlal for registration of FIR.
FIR No. 448/17 State Vs. Soniya Page 3 of 14 Digitally signed by RICHA RICHA SHARMA
SHARMA Date: 2022.01.22
15:04:02 +0530
Accordingly, he went to the PS Jahangir Puri and got registered the present FIR and thereafter he came back to the spot and handed over the copy of FIR and original rukka to him. In the meantime, ASI Raj Pal also reached at the spot. Thereafter, he handed over the copy of FIR, original rukka, seizure memo, M 29 Form, case property and custody of accused to IO ASI Raj Pal as further investigation of this case was marked to him.
IO/ASI Raj Pal prepared site plan i.e. Ex. PW1/D. Thereafter he left the spot, IO recorded his statement.
This witness was duly crossexamined by Ld. Defense Counsel.
7. PW2 is Ct. Jagan Lal, No. 2410/NW, PS Ashok Vihar. He deposed, that on 24.09.2017, he was posted at PS Jahangipuri as a HC. On that day, he alongwith HC Rajesh, W/Ct. Pinki and Ct. Vijay were on patrolling duty in the area of K Block, Jahangirpuri. At about 02:00 pm, they reached near Metro Apartment, K Block, Jahangir Puri, where they met with one secret informer and he informed to HC Rajesh, that one lady is selling liquor at house no. K 153 in front of metro apartment, Jahangir Puri. HC Rajesh requested 2 to 3 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. He further stated that Ct. Vijay was in civil dress, therefore, HC Rajesh made him a fake/ decoy customer and handed over Rs.100/ to Ct. Vijay. HC Rajesh had signed on the currency note before handing over to the Ct Vijay.
Thereafter, HC Rajesh instructed to Ct. Vijay that after purchasing liquor from the lady, he would give a signal to them. They stood at a distance of about 50 meter from the spot. Thereafter, Ct. Vijay went to the above mentioned house and after purchasing one quarter bottle for Rs.100/ from the above mentioned lady, he gave signal to them with his hand. Immediately, PW2 along with HC Rajesh and W/Ct. Pinki entered in the above mentioned house.
FIR No. 448/17 State Vs. Soniya Page 4 of 14 Digitally signed RICHA by RICHA
SHARMA
SHARMA Date: 2022.01.22
15:04:06 +0530
W/ct. Pinki had apprehended the above mentioned lady and on inquiry the lady revealed her name as Soniya.
Thereafter, one plastic katta containing 19 quarter bottles of illicit liquor of make Rasila Santra Masaledar Desi Sharab was recovered from the possession of accused Soniya. Ct. Vijay also handed over to HC Rajesh one quarter bottle which he had purchased from the accused Soniya. On formal search was conducted by W/ct. Pinki, Rs.100/ note which HC Rajesh had given to the Ct. Vijay was recovered from the possession of accused. HC Rajesh prepared pullanda of one quarter bottle which Ct. Vijay had given to HC Rajesh and sealed it with the seal of RK. Thereafter, HC Rajesh took out 2 quarter bottles from the plastic katta and remaining 17 quarter bottles were again put into the plastic katta. HC Rajesh prepared pullanda of quarter bottle and remaining liquor and sealed it with the seal of RK. HC Rajesh also filled M29 Form. Thereafter, HC Rajesh seized the recovered liquor and sample vide memo already exhibited as Ex.PW1/A. Thereafter, HC Rajesh prepared rukka, which is already Ex.PW1/C and handed over the same to him for registration of FIR. Accordingly, he went to the PS Jahangir Puri and got registered the present FIR. After registration of FIR, he handed over the copy of FIR and original rukka to IO ASI Raj Pal as further investigation was marked to him. Thereafter, he alongwith ASI Raj Pal came back to the spot.
Thereafter, HC Rajesh handed over the seizure memo, M29 Form, case property and custody of accused to IO ASI Raj Pal.
IO ASI Raj Pal prepared site plan at the instance of HC Rajesh which is already Ex.PW1/D. IO recorded disclosure statement of the accused, which is Ex.PW2/A. Thereafter, accused was arrested by the IO, vide arrest memo, which is Ex.PW2/B. Thereafter, accused was personally searched by W/ct. Pinki and IO prepared personal FIR No. 448/17 State Vs. Soniya Page 5 of 14 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.22 15:04:11 +0530 search memo, vide personal search memo, same is Ex.PW2/C. During personal search of accused, Rs.200/ (100 x 2) were recovered from the possession of accused. IO recorded statement of PW2. PW 2 stated that he can identify the case property if shown to him.
This witness was duly crossexamined by Ld. Defense Counsel.
8. PW3 is W/Ct. Pinki, No. 1529/NW. She deposed that on 24.09.2017, she was posted at PS Jahangir Puri as constable. On that day she was on patrolling duty alongwith HC Rajesh & Constable Jagan Lal. Information was received by HC Rajesh through a secret informer, that a women near Metro Apartment Jahangir puri is selling illicit liquor and she can be caught red handed, if raid is conducted in the said area. Thereafter, HC Rajesh Swung the inquiry into action and asked the passers by to join the raid but they all refused and let giving their own reasons. Thereafter, HC Rajesh called Constable Vijay who was on patrolling duty at the spot and gave him a hundred rupee note after putting his initial on the same for the purpose of catching the accused red handed. Thereafter, constable Vijay was told to hand over the said note to the accused and make a gesture and in this way the accused could be caught. Thereafter, constable Vijay did as per the plan and constable Jagan Lal, HC Rajesh reached the spot where the accused was present. On reaching there constable Vijay told them that he had bought the illicit liquor from the accused and on checking the quarter bottle it was found that the same was meant for sale in Haryana only and it was of make santra rasiladar dasi sarab. On checking, they found the accused in possession of one white katta containing 19 quarter bottles of illicit liquor. Thereafter, the accused revealed her name as Soniya w/o Sonu. IO requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses.
FIR No. 448/17 State Vs. Soniya Page 6 of 14 Digitally signed RICHA by RICHA
SHARMA
SHARMA Date: 2022.01.22
15:04:17 +0530
IO took out 2 quarter bottles of sample quarter bottles. IO put the remaining quarter bottles of illicit liquor in the white cloth. IO prepared pullanda of gatta petties and sample quarter bottles of illicit liquor and sealed it with the seal of RK. IO filled form M29.
Thereafter, IO seized the case property, vide seizure memo, which is already Ex.PW1/A. IO prepared rukka and handed over the same to Ct. Jagan Lal for registration of FIR. Accordingly, he went to the PS and got registered the present FIR. After registration of FIR, he came back to the spot and handed over the copy of FIR and original rukka to PW3.
IO mentioned the FIR number on the seizure memo and M29 form. Thereafter, IO prepared site plan. Accused was arrested, vide memos which is already Ex.PW2/B. He conduced the personal search of accused and IO prepared personal search memo, vide personal search memo, which is already Ex.PW2/C. During personal search accused Soniya was in possession of Rs.200/. IO recorded disclosure statement of accused, which is already Ex.PW2/A. After medical examination, accused was produced before the Court and sent to JC. IO deposited the case property in the Malkhana.
This witness was duly crossexamined by Ld. Defense Counsel.
9. PW4 is ASI Rajpal, No. 696/NW, PS Vijay Vihar. He deposed, that on 24.09.2017, he was posted at PS Jahangir Puri as ASI. On that day, further investigation of this case was marked to him by the concerned SHO. On the same day, he reached at the spot i.e. at House No. K153/1, in front of Metro Apartment, Jahangir Puri, Delhi, where he met with HC Rajesh and W/Ct. Pinki. He prepared site plan at the instance of HC Rajesh, which is already Ex.PW1/D. FIR No. 448/17 State Vs. Soniya Page 7 of 14 Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2022.01.22 15:04:21 +0530 He recorded disclosure statement of the accused Soniya, vide disclosure memo, which is already Ex.PW2/A. He arrested the accused, vide memo which is already Ex.PW2/B. W/Ct. Pinki conducted personal search of the accused Soniya and PW4 prepared personal search memo which is already Ex.PW2/C. Thereafter, PW4 deposited the case property in the malkhana and the accused Soniya produced before the Court and she was sent to JC.
On 13.10.2017, PW4 sent the sample of case property to Excise Laboratory, ITO, Delhi vide Road Certificate No. 191/21/17 through Ct. Mukesh.
After deposit of sample to the Laboratory, Ct. Mukesh received a receiving copy and handed over the same to PW4. PW4 recorded statement of witnesses.
After completion of investigation, he prepared chargesheet and filed the same in the court for trial.
This witness was duly cross examined by Ld. Defence Counsel.
10. PW5 is Ct. Mukesh, No. 2659/NW, PS Shalimar Bagh. He deposed, that on 13.10.2017, he was posted at PS Jahangir Puri as Constable. On that day, on the instruction of IO ASI Rajpal Singh, he collected the sealed sample from the concerned MHC(M), vide RC no. 191/21/17 and thereafter deposited the same at Excise Office, ITO, Delhi. Further, the seal of the sample was not tampered with as long as it was in his possession.
This witness was duly cross examined by Ld. Defence Counsel.
11. PW6 is Ct. Vijay, No. 2130/NW, PS Shalimar Bagh. He deposed, that on 24.09.2017 he was posted at PS Jahangirpuri as Constable. On that day, he alongwith Jaganlal, W/Ct. Pinki and HC Rajesh were on patrolling duty in the area of K Block Jahangir Puri. At about 2p.m., they reached near Metro Apartment, K Block, FIR No. 448/17 State Vs. Soniya Page 8 of 14 Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2022.01.22 15:04:26 +0530 Jahangir Puri, where they met with one secret informer and he informd them that one lady is selling liquor at H. No. K 153, in front of Metro Apartment, Jahangir Puri. IO requested 2 to 3 persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. He was in civil dress, therefore, IO made him a fake / decoy customer and handed over Rs. 100/ to him after signing on the Rs. 100 / note.
IO instructed to him, that after purchasing liquor from the lady, he would give signal to them. They stood at a distance of about 50 meter from the sport. Thereafter, he went to the above mentioned house and after purchasing one quarter bottle for Rs. 100/ from the above mentioned lady, he gave signal to them with his hand and immediately, the raiding team entered in the above mentioned house.
Thereafter, W/Ct. Pinki had apprehended the above mentioned lady and on inquiry the lady revealed her name as Soniya.
One plastic katta containing 19 quarter bottles of illicit liquor of make Rasila Santra Masaledar Desi Sharab was recovered from the possession of accused Soniya. He also handed over to IO quarter bottle which he had purchased from the accused Soniya. On formal search conducted by W/Ct. Pinki, Rs. 100/ note which IO had given to him was recovered from the possession of accused. IO prepared pullanda of one quarter bottle which he had given to IO and sealed with the seal of RK.
Thereafter, IO took out 2 quarter bottles from the plastic katta and remaining 17 quarter bottles again put into the plastic katta. IO prepared pullanda of quarter bottle and remaining liquor and sealed with the seal of RK. IO also filled M 29 Form. Thereafter, IO seized the recovered liquor and sample vide memo Ex. PW1/A. Thereafter, IO prepared rukka and handed over the same to Ct. Jaganlal for registration of FIR. Accordingly, he went to the PS Jahangir Puri and got registered the present FIR. After registration of FIR, he came back to spot and handed over the copy of FIR and original rukka to IO. In the meantime, ASI Raj Pal also reached at FIR No. 448/17 State Vs. Soniya Page 9 ofsigned Digitally 14 RICHA by RICHA SHARMA SHARMA Date: 2022.01.22 15:04:30 +0530 the spot. Thereafter, IO handed over the copy of FIR, original rukka, seizure memo, M 29 Form, case property and custody of accused to IO ASI Raj Pal as further investigation of this case was marked to IO ASI Raj Pal. IO ASI Raj Pal prepared that site plan Ex. PW1/D. This witness was duly cross examined by Ld. Defence Counsel.
12. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused, to which she denied the allegations made against her and claimed herself to be innocent and pleaded that she has been falsely implicated in this case. Accused denied to lead any evidence in his defence and the same was closed.
13. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and have carefully perused the record.
14. It is argued by the Ld. APP for the state, that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit liquor without permit. It is further stated, that there are ocular and documentary evidence on record to bring home the guilt of the accused.
15. Per contra it is argued by the Ld. Counsel for the accused, that non joinder of public witness despite availability casts a shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused and that she is falsely implicated in present case and that there is no independent evidence against her.
Digitally signed by RICHA RICHA SHARMA
SHARMA Date:
2022.01.22
15:04:36 +0530
FIR No. 448/17
State Vs. Soniya Page 10 of 14
16. It is a cardinal principle of criminal jurisprudence, that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law, that in order to successfully bring home the guilt of the accused, prosecution is suppose to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
17. 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. Incident happened at about 02:00 p.m. and it is admitted fact, that public persons were available at the spot, which is evident from the testimony of PW3 to PW6, who stated in their examination in chief, that IO had requested 45 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. It was held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
18. In present case, IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility, that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public FIR No. 448/17 State Vs. Soniya Page 11 of 14 Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2022.01.22 15:04:40 +0530 persons were admittedly present. PW1 categorically stated in his crossexamination, that " It is correct that the spot is a residential area ".
All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
19. Another material thing which is required to be discussed about the case of prosecution is, that on 24.09.2017, PW1 HC Rajesh, PW2 Ct. Jagan Lal, PW3 W/Ct. Pinki and PW4 Ct. Vijay were on patrolling duty in the area of K Block, Jahangir Puri, Delhi, meaning thereby, that at the relevant time, they were not in the PS and it seems that they were outside the PS, then as per Punjab Rules, they being on duty was required to enter their departure & arrival to & from the PS Jahangir Puri in the DD register of the said PS. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934: "22.49 Matters to be entered in Register No. IIThe following matters shall, amongst others, be entered:
(c)The hour of arrival and the 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. 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. Note: Lines & Police Posts, where Register no.II is maintained.
20. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW1 HC Rajesh, PW2 Ct. Jagan Lal, PW3 W/Ct. Pinki and PW4 Ct. Vijay.
Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the FIR No. 448/17 State Vs. Soniya Page 12 of 14 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2022.01.22 15:04:45 +0530 presence of PW1 HC Rajesh, PW2 Ct. Jagan Lal, PW3 W/Ct. Pinki and PW4 Ct. Vijay at the spot. Hence, it creates doubt in the prosecution story.
21. In present case, it appears that recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, an inference has to be drawn, that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused. In such circumstances fairness of investigation is doubted. Reliance can be placed on the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that;
"5. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) 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. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
22. In present case the seal was neither handed over to an independent witness nor deposited in Malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness.
FIR No. 448/17 State Vs. Soniya Page 13 of 14 Digitally signed RICHA by RICHA
SHARMA
SHARMA Date: 2022.01.22
15:04:51 +0530
In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court 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 the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
23. In view of the above said description and in the absence of any cogent evidence against the accused Soniya, she is hereby acquitted for offence under section 33/38 Delhi Excise Act. Case property be confiscated to the state as per rules and the same be destroyed. Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.22 15:04:58 +0530 (Richa Sharma) Metropolitan Magistrate07 North District Court/Delhi 22.01.2022 FIR No. 448/17 State Vs. Soniya Page 14 of 14