Delhi District Court
State vs . Laxmi on 16 December, 2022
IN THE COURT OF MS. NEHA MITTAL
METROPOLITAN MAGISTRATE-04/CENTRAL: DELHI
STATE Vs. Laxmi
FIR No. 355/2012
Case No. 297204/2016
P.S. : SARAI ROHILLA
U/s 33 DELHI EXCISE ACT
Date of institution of case : 20.02.2014
Date on which case reserved for judgment : 16.12.2022
Date of judgment : 16.12.2022
JUDGMENT :
a) Date of offence : 10.10.2012 b) Offence complained of : U/s 33 Delhi Excise Act c) Name of complainant : Ct. Ravinder Kumar d) Name of accused, : Laxmi her parentage : W/o Manoj local & permanent residence R/o:- Juggi No. A 124, Dayabasti RPF Line, Sarai Rohilla, Delhi e) Plea of accused : Pleaded not guilty f) Final order : Acquittal FIR No. 355/2012 State Vs. Laxmi Page No. 1 of 10 BRIEF FACTS OF CASE:
1. The case of the prosecution is that on 10.10.2012 at about 04:00 PM, in the open space behind Railway Godown, Daya Basti, Delhi, accused was found in possession of seven cartons containing illicit liquor as per the seizure memo Ex. PW3/A in violation of Rule 20 of Delhi Excise Rules 2010, and thereby accused committed offence punishable U/s 33 Delhi Excise Act.
2. On the basis of material filed along with the charge-sheet, charge u/s 33 Delhi Excise Act was framed against accused on 02.06.2015 to which she pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 06 witnesses.
4. PW1 HC Pramod Tyagi deposed that on 10.10.2012, on information of secret informer, he reached behind the godown of railway station where SI Sunil, Ct. Ravinder and W/Ct. Harmeet Kaur were already present with the accused. He further deposed that 7 cartons of illicit liquor were recovered from the accused out of which on six cartons, envy ground Besto Whisky of 118 ML for sale in Chandigarh only was inscribed. Each cartons is containing 48 quarters each out of which 4 bottles each were taken out as a sample and the seventh carton contained 12 bottles of Mc Dowellas (I) for sale in Haryana only out of which one bottle was taken out as a sample. He further deposed that remaining case property was sealed with the seal of SK. He identified the photographs of case property Ex. P1 (colly) and sample case property as Ex. P2 and Ex.P3. He identified the accused correctly. The witness FIR No. 355/2012 State Vs. Laxmi Page No. 2 of 10 was duly cross-examined by Ld. Counsel for accused.
5. PW2 SI Vijay Singh proved FIR Ex. PW2/A and endorsement on rukka Ex. PW2/B. The witness was duly cross-examined by Ld. Counsel for accused.
6. PW3 ASI Ravinder deposed that while he was on patrolling duty on 10.10.2012 at about 03:45 PM, he was informed by one secret informer regarding a lady in possession of illicit liquor upon which he asked the public persons to join the investigation but none agreed. He further deposed that on reaching the spot, he found the accused having white plastic tirpal which was containing seven cartons of illicit liquor and then on information being sent to PS, SI Sunil Kumar alongwith W/Ct. Harmeet came to the spot. He further deposed that IO seized the liquor vide seizure memo Ex. PW3/A, recorded his statement Ex.PW3/B, arrested the accused vide arrest memo Ex.PW3/C and site plan Ex.PW3/D was prepared. He identified the accused correctly. The witness was duly cross-examined by Ld. Counsel for accused.
7. PW4 W/Ct. Harmeet Kaur deposed that on 10.10.2012, she reached at spot alongwith IO SI Sunil Kumar where Ct. Ravinder produced the accused alongwith illicit liquor. She further deposed that some independent public person asked to join the investigation but they refused. She proved the personal search memo of accused Ex.PW4/A. Remaining testimony of this witness is on the same lines as PW3. He identified the accused correctly. The witness was duly cross-examined by Ld. Counsel for accused.
8. PW5 Bijender Singh, Chemical Examiner proved his report Ex.PW5/A. The witness is not cross examined by Ld. Counsel for accused FIR No. 355/2012 State Vs. Laxmi Page No. 3 of 10 despite opportunity.
9. PW6 SI Sunil deposed on the same lines as PW4 W/HC Harmeet Kaur. He also proved Form M29 Ex.PW6/A and rukka Ex. PW3/B. He identified the accused correctly. The witness was duly cross-examined by Ld. Counsel for accused.
10. Thereafter, prosecution closed its evidence. All incriminating facts were explained to accused u/s 313 r/w 281 Cr.P.C. After understanding the same, accused submitted she was called by police at PS Sarai Rohilla and the present case was implanted on her. She claimed that police officials have deposed falsely against her and no such liquor was recovered from her.
11. Accused did not lead any defence evidence. Thereafter, arguments of both parties were heard. It is argued by counsel for accused that the accused has been falsely implicated in the present matter and she is entitled to be acquitted as no independent witness has been examined by the prosecution. Hence, it is prayed that the accused be acquitted. On the other hand, Ld. APP for the State has argued that the testimonies of the all the prosecution witnesses are corroborative of each other and guilt of the accused stands proved beyond reasonable doubt. Hence, it is prayed that the accused be convicted for the offences charged.
12. I have considered the material facts and circumstances of the case. Record has been perused.
13. With respect to the charge under Section 33 of the Delhi Excise Act, the case of the prosecution is that on the fateful day the accused was FIR No. 355/2012 State Vs. Laxmi Page No. 4 of 10 found in possession of illicit liquor without any permit or licence. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
14. Relying upon Section 52 of the Delhi Excise Act, Ld. APP 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, 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".
15. 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 pre-requisite 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, that the accused can be FIR No. 355/2012 State Vs. Laxmi Page No. 5 of 10 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.
16. The prosecution has failed to join any independent witness in the present matter. The effect of non-joining of independent witnesses can very well be analyzed in light of the provisions of Section 165 Cr.P.C r/w Sec. 100 of Cr.P.C. Sub-Sec. 4 to Section 100 of Cr.P.C. mandates that while conducting search under chapter VII, two or more independent and respectable inhabitants of the locality (in which the place to be search is situated or of any other locality, if no such inhabitants of the said locality is available or is willing to be a witness to the search), shall be called upon to attend and witnesses the search. Furthermore, the officers conducting search may issue an order in writing in this regard.
17. It is a settled proposition of law that Sub-section 4 to Sec. 100 of Cr.P.C. is a directory provision however, the explanation of non-joining of independent witness should also be plausible. In nearly each and every case, a general explanation is given that no public witness volunteered to join the search/investigation and it appears that even the "directory" provision has been made nugatory. Such a vital provision cannot be made a dead letter in the statute book as it is intended to curb any false recovery.
18. No cogent explanation has been put forth by the prosecution for non-joining of independent witness. This court cannot lose sight of the fact FIR No. 355/2012 State Vs. Laxmi Page No. 6 of 10 that the recovery was affected from a public area. In such a situation, it was incumbent on part of recovery witnesses and IO to make efforts to join any independent witness. At-least one of the residents of the locality or passerby could have been joined in the investigation to witness the alleged recovery which is alleged to have been made from a public place during morning. There is nothing on record to reflect that any sincere attempt was made by recovery witnesses and IO to join any of them in the investigation. The reluctance of public persons to join an independent witness is rather strange. There was sufficient time with the IO to at-least note down the names of the persons who had refused to join the investigation. No notice whatsoever, was given to the public persons at the spot either to join the investigation. This creates a doubt on the very recovery of illicit liquor from the accused. In my considered opinion, it would be highly unsafe to record the finding of guilt against the accused on the basis of testimony of police witnesses.
19. It is correct that corroboration from a public witness is not essential but if a case is entirely based on the statements of the police officials, despite availability of public witnesses, the Court is put to a caution. In case titled as Roop Chand Vs. State of Haryana reported as CC Cases 3 (HC), it was held as that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an after thought and liable to be rejected.
20. Further, in the case of Hem Raj Vs. State of Haryana AIR 2005 FIR No. 355/2012 State Vs. Laxmi Page No. 7 of 10 SC 2110, it has been observed that:-
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things form the beginning was not examined by the prosecution. None examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witness raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
21. 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 investigating conducted by him. This aspect of the case has not been properly appreciated by the court below".
22. 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 & accused is entitled to benefit of doubt.
23. No efforts whatsoever have been made by the prosecution to search clue about the source from where illicit liquor was arranged by the accused. At-least, some efforts must have been made by the police to interrogate the accused and conduct the requisite investigation to know as to from where the accused arranged such huge quantity of illicit liquor. It FIR No. 355/2012 State Vs. Laxmi Page No. 8 of 10 could be a result of either a hasty investigation or a shoddy investigation but in either case, the benefit should go to the accused.
24. Moreover, seal after use was not handed over to any independent person and no seal handing over or seal returning memo was placed on record and sample was sent to the Excise Lab after more than 20 days of the seizure. All these circumstances force the court to lead to an inference that the seal or case property were definitely tampered with and thus, it creates an adverse inference against the case of the prosecution.
25. There are many other contradictions in the testimonies of the prosecution witnesses which shake the foundation of the case of the prosecution. PW-1 has deposed in his cross-examination that the secret informer remained with him for about 30-45 minutes whereas PW-3 has stated that the secret informer left after pointing towards the accused. Further, PW-1 has deposed that Ct. Ravinder came to the spot within 20 minutes alongwith copy of FIR whereas PW-4 has deposed that he took about 1-1.5 hours to return to the spot alongwith FIR.
26. The main witness of the case is PW-3 Ct. Ravinder who found the accused in possession of the illicit liquor and the subsequent proceedings were conducted in his presence. It is to be noted that he has claimed that he was on patrolling duty when he spotted the accused. As per Punjab Police Rules, whenever a police official departs from the police station, a departure entry has to be made mentioning the time of departure and the purpose of same. However, no such DD entry/record has been filed alongwith chargesheet or otherwise during the trial. Accordingly, an FIR No. 355/2012 State Vs. Laxmi Page No. 9 of 10 adverse inference arises against prosecution in view of Section 114 Indian Evidence Act (Illustration g). Perusal of record rather shows that DD No. 5A dated 10.10.2012 is on record wherein it is noted that Ct. Ravinder left for patrolling at 09:15 PM. The said DD Entry has not been proved by the prosecution and even if it had been proved, it would not have supported the case of prosecution at all because the recovery has shown to be effected at 04:00 PM i.e. much prior to the time when Ct. Ravinder left for patrolling duty.
27. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
28. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against her in the present case. Accused Laxmi w/o Manoj is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act.
Digitally
File be consigned to record room. signed by
NEHA NEHA MITTAL
Date:
MITTAL 2022.12.16
12:13:11
+0530
PRONOUNCED IN THE OPEN COURT (NEHA MITTAL)
TODAY ON 16th DECEMBER 2022 MM-04 (CENTRAL),
DELHI
FIR No. 355/2012 State Vs. Laxmi Page No. 10 of 10