Delhi District Court
State vs . Pinki on 24 December, 2021
IN THE COURT OF MS. SHIVLI TALWAR
METROPOLITAN MAGISTRATE - 06, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
FIR No. 365/2017
PS - Civil Lines
U/s - 33/38 Delhi Excise Act
State Vs. Pinki
JUDGMENT
(a) Criminal Case No. 12073/2019
(b) CNR No. DLCT02-023539/2019
(c) Date of 29.12.2017 commission of offence
(d) Name of the HC Diwakar complainant
(e) Name of the Pinki S/o Lt. Raj Pal Singh Saini R/o Gali No.-2 accused person(s), behind Daya Form House Shakti Nagar, PS Vijay his parentage and Nagar Gaziabad, UP.
residence
(f) Offence(s) 33/38 Delhi Excise Act
complained of or
proved
(g) Plea of the Pleaded not guilty
accused
(h) Final Order Acquitted
(i) Date of institution 21.09.2021
of case
(j) Date when 24.12.2021
judgment was
reserved
(k) Date of judgment 24.12.2021
Brief reasons for the decision of the case: -
1. The genesis of the prosecution story is that on 29.12.2017 at about 4:43 AM near Chandgi Ram Akhada, CNG Petrol Pump, Outer Ring Road, Delhi, SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2021.12.24 18:04:50 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 1 of 21 within the jurisdiction of PS Civil Lines, a Hyundai Accent car bearing registration no. UP 16 J 2170 was found near the divider in accidental condition. Upon search of the said vehicle, 14 cartons containing 48 quarters of liquor bottles were found. It was later found that the said vehicle was owned by the accused namely Pinki and he was carrying the illicit liquor without any licence, permit or pass and in contravention of the notification issued by Delhi Government and the said liquor was not of Delhi Excise and he possessed the same having knowledge that the same had been transported/ unlawfully imported into Delhi without prescribed duty being paid on it.
2. On finding a prima facie case to proceed against the accused, cognizance of the offence was taken by Ld. Predecessor of this Court on 21.09.2019 and accused was duly summoned. Since the accused was charge-sheeted without arrest, he was admiteed to court bail and the provisions of Section 207 Cr.P.C. were duly complied with. Formal charge u/s 33/38 Delhi Excise Act was framed against the accused on 25.02.2020 by Ld. Predecessor of this Court to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined nine witnesses:
PW1 HC Diwakar (Complainant and 1 st IO), PW2 Ct. Mukesh, PW3 ASI Prem, PW4 Ct. Nityanand, PW5 Ct. Bharat Lal, PW6 Neeraj Prakash Verma, PW7 Raj Kishore Puri, PW8 Ct. Rinku and PW9 ASI Pramod Tiwari (2nd IO).
4. The record transpires that during the course of trial, the accused admitted DD No. 11A dated 29.12.2017 and the present FIR as well as DD No. 6PP dated 29.12.2017 and the examination of formal witnesses qua such documents was accordingly dispensed with.
5. The prosecution evidence was closed on 04.12.2021 and the accused was SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2021.12.24 18:04:57 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 2 of 21 examined u/s 313 r/w 281 Cr.P.C. on 13.12.2021 wherein all incriminating evidence was put to him. The accused submitted that he is innocent and has been falsely implicated in the present case and that the case property was planted upon him. The accused opted not to lead any evidence in his defence.
6. Prior to delving into the merits of the present case, it is relevant to discuss the testimonies of the prosecution witnesses.
7. PW1 HC Diwakar is the complainant/ 1st IO. He deposed that on 29.12.2017, he was on emergency duty. On the intervening night of 28/29.12.2017 at 4:43 AM, he received DD No. 6PP, pursuant to which he reached at the spot alongwith Ct. Bharat. At the spot, he found one Hyundai Accent car bearing registration no. UP 16J 2170 in accidental condition. Upon searching the car, he found 14 boxes of illicit liquor. Meanwhile, Ct. Mukesh who was on patrolling duty also came to the spot. Upon opening the boxes, each box was found containing 48 quarters of illicit liquor. With the help of police officials, he took all the aforesaid boxes. Thereafter, 14 quarters, one from each box were taken out for sampling and all the samples were put in one white coloured plastic bag and sealed with the seal of 'DM'. Thereafter, he sealed all 14 boxes and prepared rukka Ex. PW1/A and handed over the same to Ct. Mukesh for registration of FIR. Pursuant to registration of FIR, Ct. Mukesh came back and handed over the original rukka as well as copy of FIR Ex. PW1/B to him. Thereafter, the witness prepared the site plan Ex. PW1/C. Thereafter, he seized Hyundai Accent Car vide seizure memo Ex. PW1/D. He also seized 14 boxes of illicit liquor vide seizure memo Ex. PW1/E. He then deposited 14 samples of illicit liquor, 14 boxes of illicit liquor and Hyundai Accent Car in the Malkhana. He also filled Form No. M-29 Ex.PW1/ F at the spot and the same was deposited in Malkhana. Consequently, he investigated in various hospitals Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:05:04 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 3 of 21 whether any person or driver had been admitted in an accident case. Thereafter, he enquired from Noida authority about the owner of the said vehicle. During investigation, he also recorded statement of Sh. Raj Kishore who was the first owner/registered owner of the vehicle. He also recorded statement of Ct. Bharat and Ct. Mukesh. Thereafter, he handed over the case file to IO ASI Pramod Tiwari. Case property i.e., sample of two quarter bottles of illicit liquor bearing FIR No. 365/17 were produced by the MHC(M) who submitted that the remaining samples of case property have been destroyed as per Order No. 8574/2017/990-991 of Deputy Commissioner (Excise) dated 02.05.2018. Photocopy of the said order is Mark A. The witness correctly identified two photographs of 14 sealed boxes of illicit liquor labelled as P-1-2. The same are Ex. PW1/G (colly).
During his cross-examination by Ld. Defence counsel, the witness deposed that there was no public witness present at the spot at the time of the incident. He further deposed that during investigation, no CCTV footage was found. He further deposed that he reached at the spot within 5 to 10 minutes after receiving the information. He further deposed that he made DD entry while he left the police station. He further deposed that he did not know who was the registered owner of the vehicle at that time. He admitted that he had not done complete investigation regarding identification of actual owner of the vehicle.
8. PW2 Ct. Mukesh also deposed on similar lines as PW1 HC Diwakar. He deposed that on the intervening night of 28/29.12.2017, he was on night patrolling duty from 9:00 PM to 9:00 AM on his duty motorcyle. On that day, at about 4:45 AM, near Outer Ring Road while going from Chandgi Ram Akhada to Majnu ka Tilla, he noticed one Hyundai Accent white coloured car bearing registration no. UP 16 J 2170 near the divider in accidental condition. At that time, HC Diwakar and Ct. Bharat also came at Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:05:11 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 4 of 21 the spot. They did not find any injured person but they found 14 cartons containing 48 quarters bottles of liquor containing the name "Crazy Romeo for sale in Arunachal Pradesh only" in the boot and backseat of the said vehicle. They tried to trace the injured person by contacting nearby hospitals but found none. HC Diwakar marked the said cartons as P1-P14 and took out one sample from each carton and give them serial number S1- S14. They kept the said cartons in white plastic katta containing two cartons in each katta and they were sealed with the seal of 'DM'. The sample quarter bottles were kept in white polythene and their mouth were tied with white cloth and sealed with the seal of 'DM'. Form No. 29 was filled on which the seal impression of 'DM' was put. Seal after use was handed over to Ct. Bharat. HC Diwakar seized the said liquor and samples. In the meantime, HC Prem from Excise Department Delhi also came to the spot. IO prepared rukka and handed it over to the witness to get the FIR registered. The witness got the present FIR registered at PS Civil Lines and thereafter, he came back to the spot. IO prepared the site plan. The said car was seized and thereafter, the case property was deposited in the Malkhana. IO recorded his statement and relieved him. The witness correctly identified the case property i.e., two quarter bottles of illicit liquor Ex. PW2/X. During his cross-examination by Ld. Defence Counsel, the witness admitted that Ex. PW2/X does not bear his signatures. However, he denied the suggestion that Ex. PW2/X was not seized at the spot and that it was falsely planted. He further deposed that he visited the spot on the day of incident and after registration of FIR. He denied the suggestion that he did not join the investigation and that all the documents were prepared while sitting at the police station. He deposed that he did not find any CCTV footage of the incident during that time.
9. PW3 ASI Prem deposed that on 29.12.2017, he was posted as HC at Delhi Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:05:17 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 5 of 21 Excise Department. They received the information regarding the vehicle bearing registration no. UP 16 J 2170 carrying illicit liquor, pursuant to which he reached Majnu ka Tilla to intercept the said vehicle and found the vehicle in accidental condition. He also met the police officials of PS Civil Lines at the spot. HC Diwakar was carrying out the investigation and the said vehicle and illicit liquor found in it were already seized. At that time, no person related to the said vehicle and illicit liquor was found.
During his cross-examination by Ld. Defence counsel, the witness denied the suggestion that he did not reach the spot and that he did not conduct any enquiry and that he did not join the investigation.
10. PW4 Ct. Nityanand deposed that on 22.01.2018, he collected 14 quarter bottles of sample of illicit liquor from the Malkhana PS Civil Lines seized in the present FIR with the seal of 'DM' and deposited the same with Excise Department vide RC No. 21/21/18 Ex. PW4/1. He came back to the police station after depositing the sample in the Excise Department. He deposed that during this period, the sample bottle was not tampered and the same was deposited safely. He deposited the road certificate in the Malkhana PS Civil Lines. IO recorded his statement in this regard at police station.
During his cross-examination by Ld. Defence counsel, the witness denied the suggestion that he tampered with the sample.
11. PW5 Ct. Bharat Lal deposed that on the intervening night of 28/29.12.2017, he was on night emergency duty from 8:00 PM to 8:00 AM. At 4:43 AM, a call was received at police chowki regarding the accident of vehicle No. UP 16J-2170 in front of CNG petrol pump near Gurudwara. The above said vehicle was containing illicit liquor. He along with IO reached the spot i.e. Outer Ring Road while going from Chandgi Ram Akhada to Majnu Ka Tilla, where one white coloured Hyundai Accent Car bearing registration SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2021.12.24 18:05:24 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 6 of 21 number UP 16J-2170 was found in accidental condition near the divider. Ct. Mukesh was already present there. They found illicit liquor in the back seat and boot as well in 14 cartons of the vehicle. They took out the illicit liquor from the vehicle. At that time, they did not find any injured person. They tried to trace out the injured person by contacting the nearby hospital but found none. They checked the said cartons of the illicit liquor and counted them to be 14 carrying 48 quarters of illicit liquor in each carton. The bottle was printed with the name 'Crazy Romeo for sale in Arunachal Pradesh only'. HC Diwakar marked the said cartons from P-1 to P-14 and took out one sample from each carton and marked them with serial no. S-1 to S-14. They kept the said cartons in white plastic katta containing 2 cartons in each katta and the same was sealed with the seal of DM. The sample bottles were put into white plastic polythene and were sealed with the seal of DM. Form No. 29 was filled on which the seal impression of DM was put. After use of seal, seal was handed over to him and HC Diwakar seized the said liquor and samples. In the meantime, HC Prem from Excise Department came to the spot as their Department also has the knowledge of the incident. IO prepared the rukka and handed over the same to Ct. Mukesh to get the FIR registered. IO prepared the site plan and seized the accidental car bearing registration number UP 16 J-2170. IO also seized the illicit liquor. The seized vehicle and the seized illicit liquor were deposited in Malkhana PS Civil Lines. IO recorded his statement in this regard.
During his cross-examination by Ld. Defence Counsel, the witness deposed that there was no public witness at the spot when he reached there during the investigation. He further deposed that he did not know whether any CCTV camera was installed or not. He further deposed that he visited the spot twice. He denied the suggestion that he never visited the spot and remained present in the police station the entire time. He further deposed that they did not find any driver of the said vehicle. He denied the SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2021.12.24 18:05:30 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 7 of 21 suggestion that the seized liquor was planted upon the accused.
12. PW6 Neeraj Prakash Verma deposed that his part time business was of sale and purchase of second hand cars. He purchased white Accent car bearing registration no. UP 16 J 2170 from Mr. Raj Kishore Puri on 20.11.2017 and sold the same to accused on 24.12.2017. He further deposed that the accused was known to him as he was his neighbour and he produced the accused at PS Civil Lines. IO recorded his statement. His application regarding the above said fact is on record Ex.PW6/A. The photocopy of delivery receipts of the said car dated 20.11.2017 from Raj Kishore to him and delivery receipts dated 24.12.2017 from accused to him, Form 6 i.e. DL of accused, Form 23 i.e. registration certificate of the said car, Form 29 & 30 are already on record. He brought the originals of above said documents and placed the photocopies on record, Ex. PW6/B (OSR) for delivery receipts dated 24.12.2017, Form 29 & 30 Ex. PW6/C (OSR) and Ex. PW6/D(OSR). Form 6, Form 23 and delivery receipts dated 20.11.2017 Mark PW6/A1, Mark PW6/A2, Mark PW6/A3. The witness correctly identified the accused during his testimony before the Court.
During his cross-examination by the Ld. Defence Counsel, the witness deposed that he had not submitted the above said exhibited and marked documents in the RTO. He admitted that the photocopy of delivery receipts dated 24.12.2017 Ex.PW6/B did not bear the photograph of accused Pinki. He also admitted that there was no witness for the said sale transaction. He denied that all the documents were false and that they were created to falsely implicate the accused.
13. PW7 Raj Kishore Puri deposed that he sold the white Accent car bearing registration no. UP 16 J 2170 on 20.11.2017 to N.P. Verma. He deposed that he handed over the photocopy of delivery receipts of the same to the IO. He Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:05:37 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 8 of 21 further deposed that he was informed that N.P. Verma sold the said car to accused Pinki. He placed on record the carbon copy of delivery receipts dated 20.11.2017 of the said car and photocopy of the same is Ex.PW7/A (OSR).
During his cross examination by the Ld. Defence Counsel, he admitted that there was no witness to the above said transaction. He deposed that he did not submit any documents in the RTO. He denied the suggestion that the said sale of car was bogus and that it was done on the basis of false documents in order to falsely implicate the accused.
14. PW8 Ct. Rinku deposed that on 16.02.2019, he joined the investigation with IO ASI Pramod Tiwari. At about 2:00 PM, he alongwith IO reached PS Civil Lines where they met accused Pinki. IO inquired from accused and recorded his disclosure statement Ex. PW-8/A. IO served notice u/s 41A Cr.P.C. to accused. The witness correctly identified the accused during his testimony before the Court.
During his cross-examination, the witness deposed that he never visited the spot of incident as he joined investigation at a very late stage.
15. PW9 ASI Pramod Tiwari is the second Investigating Officer. He deposed that on 30.11.2018, he received the case file of the present matter as the same was marked to him for further investigation. On 13.01.2019, he served notice u/s 160 Cr.P.C. to second owner of vehicle namely Neeraj Prakash Verma who joined the investigation and stated that he bought the said car from Raj Kishore Puri on 20.11.2017 and sold the same to accused Pinki Singh Saini on 24.12.2017. He collected the documents i.e. delivery receipt dated 24.12.2017 of the said car, Form 6, Form 29, Form 30 and DL of accused. On 10.02.2019, he served notice u/s 160 Cr.P.C. to accused who came to PS Civil Lines on 16.02.2019 and he recorded his disclosure Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:05:44 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 9 of 21 statement. He made efforts to trace Vipin but could not find him. He further deposed that after discussion with the then SHO, section 279/427 IPC were removed and section 33/58 Delhi Excise Act were added as 14 cartons of illicit liquor were recovered from car bearing registration no. UP 16J 2170. He served notice u/s 41A Cr.P.C. Ex. PW-9/A to accused. He recorded statement of witnesses. He prepared the challan and filed the same before the Court. The witness correctly identified the accused during his testimony before the Court.
During his cross-examination by the Ld. Defence Counsel, the witness deposed that he did not verify the documents provided by owners of the said car from the RTO. He further deposed that he did not make registered owner an accused in the present matter as he provided him the documents for sale of the said car. He further deposed that he did not visit the spot of incident as the investigation was marked to him at a very late stage. He denied the suggestion that he did not conduct the investigation fairly and that the accused was falsely implicated in the present case.
16. This is the entire evidence on case record.
17. I have given a considered thought to the rival submissions made by Ld. APP for the State and Ld. Counsel for accused keeping in view the material available on the judicial file.
18. Ld. APP for the State has contended that prosecution has established the guilt of accused beyond all reasonable doubts and, therefore, the accused deserves to be convicted for the offences in question.
19. Per contra, Ld. Counsel for accused has argued that the accused has been falsely implicated in the present case and the case property has been planted upon him. It has been further argued that prosecution has failed to prove Digitally signed SHIVLI by SHIVLI TALWAR TALWAR Date: 2021.12.24 18:05:50 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 10 of 21 beyond reasonable doubts that the vehicle bearing registration No. UP 16 J 2170 was owned by the accused and thus, accused has been falsely implicated in the present case. It has been further argued that no independent public witness was asked to join the investigation despite availability and the only witnesses examined by the prosecution are the police officials whose testimonies are not reliable without corroboration by public witnesses. It has further been argued by Ld. Defence Counsel that none of the police officers had made departure/ arrival entry of their patrolling duty in the daily diary. Thus, the prosecution has not been able to prove its case beyond reasonable doubts and the accused is entitled to acquittal.
20. In the aforementioned backdrop, the Court shall now proceed to deliberate upon the evidence appearing on record so as to evaluate if the prosecution has proved its case on the requisite yardsticks or not.
21. Before proceeding with the appreciation of evidence, the cardinal principle of criminal jurisprudence is to be borne in mind, that prosecution has to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence. In order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of accused. It is for the prosecution to travel the entire distance from may have to must have and accused is entitled to benefit of reasonable doubts in the prosecution story and any such doubts in the prosecution case entitles the accused to acquittal.
22. It has been argued by Ld. Defence Counsel that the accused was not apprehended alongwith the illicit liquor at the spot of incident and he has been falsely implicated in the present case. Ld. Defence Counsel has argued Digitally signed SHIVLI by SHIVLI TALWAR TALWAR Date: 2021.12.24 18:05:56 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 11 of 21 that the car bearing registration no. UP 16 J 2170 was not sold to the accused as alleged by PW6 Neeraj Prakash Verma. Reference is made to the testimony of PW6, who during his cross-examination by Ld. Defence Counsel deposed that he had not submitted the documents pertaining to the alleged sale of vehicle to the accused on 24.12.2017 in the RTO. He also admitted that the photocopy of delivery receipts dated 24.12.2017 Ex. PW6/B did not bear the photograph of accused. He further admitted that there was no witness to the said sale transaction.
Ld. Defence Counsel has also drawn the attention of Court to the testimony of PW7 Raj Kishore Puri and PW9 2 nd IO ASI Pramod Tiwari. PW7 Raj Kishore Puri, during his cross-examination by Ld. Defence Counsel admitted that there was no witness to the transaction of sale of the said vehicle by him to Neeraj Prakash Verma on 20.11.2017. He further deposed that he did not submit any documents in the RTO. PW9 2 nd IO ASI Pramod Tiwari, during his cross-examination by Ld. Defence Counsel, deposed that he did not verify the documents provided by owners of the said car from the RTO. He further deposed that he did not make registered owner of the vehicle an accused in the present matter as he provided him the documents for sale of the said car.
Ld. Defence Counsel has argued that the evidence on record arising out of the testimonies of the said prosecution witnesses clearly reflects that no such transaction of sale of the said car took place in favour of the accused as alleged by the prosecution and all the documents placed on record by PW6 Neeraj Prakash Verma as well as PW7 Raj Kishore Puri were bogus and they were prepared in order to falsely implicate the accused in the present case.
23. Ld. Defence Counsel has further argued that no public witness was joined by the IO during investigation of the present case and at the time of alleged Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:06:10 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 12 of 21 recovery of the case property, despite their availability.
Perusal of record reflects that PW1/ complainant/ 1 st IO HC Diwakar and PW5 Ct. Bharat, during their cross-examination by Ld. Defence Counsel, deposed that no public witness was present at the spot.
The site plan Ex. PW1/C reflects that the place of occurrence was a busy road and it is highly improbable that no public persons were present there.
Ld. Defence Counsel submits that the prosecution has only examined police officials whose testimonies are not reliable without corroboration by public witnesses.
No doubt, it is settled law that the testimony of police witnesses can be relied upon if it inspires confidence of the court but in this case, no plausible explanation has been put forth by the prosecution for failure to join public witnesses during the investigation and specifically at the time of alleged recovery of case property, despite their availability in compliance of Section 100 (4) Cr.P.C. The same brings the seizure under a cloud of doubt.
Reference is made to the judgment of Hon'ble Punjab and Haryana High Court in the case of Roop Chand Vs. State of Haryana 1999 (1) CLR 69 wherein it was observed that, "It is well settled principle of the law that the Investigating Agency 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 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 Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:06:16 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 13 of 21 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 he witnesses from the public had refused to 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''.
Reference is also made to the judgment in the case titled as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC) wherein the Hon'ble High Court of Delhi observed that, "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 shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeeeprs 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".
This Court is of the considered opinion that in order to lend credibility to the prosecution case and to ensure transparency and fairness during search and seizure, some independent person should have been associated by the Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:06:23 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 14 of 21 IO during investigation. However, no sincere efforts were made by the IO to persuade any public witness to join the investigation and no written notice was served upon any of the public persons. It has also not been mentioned as to what action was taken against those persons who refused to join the investigation.
24. It has been further argued by Ld. Defence Counsel that case property has been tampered with as no seal handing over memo was prepared by the IO. Perusal of testimony of PW2/ Ct. Mukesh as well as PW5 Ct. Bharat reveals that pursuant to seizure of case property, IO sealed the case property with the seal of 'DM' and seal after use was handed over to PW5/ Ct. Bharat. Thereafter, after completion of necessary formalities, the case property was deposited in the Malkhana.
It is pertinent to note that the seal after use was not handed over to any independent person. It was handed over by the IO to PW5/ Ct. Bharat only. This Court is of the considered opinion that PW5 himself being a material recovery witness in the present case would always be interested in the success of the case of the prosecution and thus chances of tampering of case property cannot be ruled out.
Reference is made to the judgment of Hon'ble High Court of Delhi in Safiullah vs State (Delhi Administration) 49 (1993) DLT 193 wherein it was held that:
"It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness Public Witness .5. Even the 1.0. Public Witness .7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:06:30 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 15 of 21 the seal and the contents of the parcel cannot be ruled out."
Reference is also made to the judgment of Hon'ble Punjab and Haryana High Court in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, wherein it was held that, "The very purpose of giving seal to an independent person is to avoid tampering of the case property."
In the present case, the possibility of tampering of case property cannot be ruled out as it was lying in the same Malkhana where the police officials having possession of the seal were posted.
25. It has been further argued by Ld. Defence Counsel that no DD entry pertaining to arrival and departure of the police officials for patrolling duties has been proved on record.
In this regard, reference is made to the testimony of PW1 HC Diwakar, who during his cross-examination by Ld. Defence Counsel, deposed that he made DD entry while he left the police station. However, no such DD entry has been proved on record by the prosecution.
From the perusal of record, it emerges that no DD entry pertaining to departure for patrolling duty has been proved on record by any of the police officials.
At this juncture, it is pertinent to mention that Chapter 22 rule 49 of Punjab Police Rules 1934, provides as under:
22.49 Matters to be entered in Register no.II: The following matters shall, amongst others, be entered:
"(c) The hour of arrival and departure on duty at or from a police station Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:06:37 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 16 of 21 of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with the statement of 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 latter personally by signature or seal.
Note: The term Police Station will include or places such as Police Lines and Police Posts where register no. II is maintained."
In the present case, the said provision has not been complied with by the investigating agency. As per the prosecution version, at the relevant time, police personnel were on area patrolling duty but the DD entry vide which they had left the police station for patrolling has not been brought on record. Even the number of the said DD entry made in Register No. II has not been brought on judicial record. In the considered opinion of the Court, prosecution was under an obligation to prove on record, the above said DD entry vide which above said police officials had left the police station for patrolling duty so as to prove the possibility of availability of police personnel at the place of apprehension of both the accused persons.
Reference is made to the judgment of Hon'ble High Court of Delhi, in the case of Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed that, "If the investigation agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motice. This failure to bring on record the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
Thus, the failure to bring on record the DD entries creates a reasonable Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2021.12.24 18:06:45 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 17 of 21 doubt in the prosecution version.
26. It has been further contended by Ld. Defence Counsel that all documents of the present case were prepared in the police station and not at the spot of alleged incident and the accused has been falsely implicated in the present case.
27. Ld. Defence Counsel has also pointed out another contradiction in the testimonies of PW1 HC Diwakar, PW2 Ct. Mukesh and PW5 Ct. Bharat. It has been pointed out that PW1/complainant/1st IO HC Diwakar, during his examination-in-chief, deposed that on the intervening night of 28/29.12.2017 at 4:43 AM, upon receipt of DD No. 6PP, he reached the spot along with Ct. Bharat where they found the vehicle bearing registration no. UP 16J 2170 in accidental condition containing illicit liquor and meanwhile, Ct. Mukesh who was on patrolling duty also came to the spot.
On the other hand, PW2 Ct. Mukesh, during his examination-in-chief, deposed that on the intervening night of 28/29.12.2017 at 4:43 AM, when he was on patrolling duty, at about 4:45 AM, he found the vehicle bearing registration no. UP 16J 2170 in accidental condition and HC Diwakar and Ct. Bharat also came at the spot.
PW5 Ct. Bharat, during his examination-in-chief, deposed that when he alongwith IO reached the spot of incident, Ct. Mukesh was already present there.
Thus, the said contradiction arising in the testimonies of PW1, PW2 and PW5 further casts a shadow of doubt on the case of the prosecution.
28. It is further pertinent to note that seizure memo of the vehicle Ex. PW1/D, seizure memo of the illicit liquor Ex. PW1/E as well as Form M-29 Ex.
Digitally signed by SHIVLI SHIVLI TALWAR
TALWAR Date:
2021.12.24
18:07:09 +0530
FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 18 of 21
PW1/F bear the number and particulars of the present FIR. As per the rukka Ex. PW1/A and testimonies of prosecution witnesses, the seizure memos and Form M-29 were prepared prior to the registration of FIR. If that be the case, the prosecution has not offered any explanation whatsoever as to how number and other particulars of the present FIR are mentioned on the seizure memos and Form M-29.
Reference is made to the judgment of Hon'ble High Court of Delhi in Giri Raj vs State 83 (2000) DLT 201 wherein it was held that, "The number of the FIR (Ex. PW-2/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR (Ex. PW-2/A) had appeared on the top of the said documents, which were allegedly prepared 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."
29. It is also pertinent to note that sample of the recovered illicit liquor was sent for chemical examination on 22.01.2018 whereas the same was seized on 29.12.2017. There is a considerable delay in sending the recovered case property to the experts for the reasons best known to the IO. No justification for the same has been offered by the prosecution. The same is Digitally signed a material void in the case of prosecution. by SHIVLI SHIVLI TALWAR TALWAR Date:
2021.12.24 18:07:17 +0530 FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 19 of 21
30. The aforementioned lacunaes and contradictions surfacing from the testimonies of various prosecution witnesses makes it extremely doubtful that the accused committed the offence as alleged by the prosecution. Admittedly, PW9 / second IO ASI Pramod Tiwari did not verify the documents provided by the owners of the said car from the RTO. In such a scenario, this Court is of the firm view that prosecution has failed to prove the factum of ownership of vehicle bearing registration No. UP 16 J 2170 by the accused, the benefit of which must go in favour of the accused. It is also pertinent to note that the accused in his disclosure statement Ex. PW8/A disclosed that on 29.12.2017, he had given the said vehicle to his acquaintance namely, Vipin and after a few days, he came to know that his car had met with an accident near CNG Petrol Pump, Majnu Ka Tilla. PW9/ second IO ASI Pramod Tiwari, during his examination-in-chief, deposed that he made efforts to trace Vipin but could not find him. However, the IO has not mentioned any details regarding the efforts made to trace out Vipin. Furthermore, the recovery of case property from the said vehicle has also not been proved by the prosecution beyond reasonable doubts since no independent public witnesses have been joined during the investigation and at the time of alleged recovery of case property, thereby diluting the case of the prosecution.
31. Thus, in light of the discussion made above, this Court is of the firm view that prosecution has failed to establish the charges levelled against the accused beyond shadow of doubt. Thus, the accused cannot be held liable for the offences with which he has been charged. Accordingly, accused Pinki is acquitted in the present case for the offence punishable u/s 33/38 Delhi Excise Act.
32. The bail bonds, if any, furnished by the accused at the time of commencement of trial stand cancelled. Surety, if any, stands discharged.
Digitally signed by SHIVLI SHIVLI TALWAR
TALWAR Date: 2021.12.24
18:07:23 +0530
FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 20 of 21
Documents, if any, shall be returned to its rightful owner as per rules. Endorsement, if any, stands cancelled. Case property, if any, shall be disposed off as per rules after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to the record room after due compliance.
Digitally signed by SHIVLI TALWAR SHIVLI Date:
ANNOUNCED IN OPEN COURT TALWAR 2021.12.24
18:07:30
on : 24.12.2021 +0530
(SHIVLI TALWAR)
MM-06(C)/THC/Delhi/24.12.2021
FIR No. 365/2017 PS Civil Lines State vs. Pinki Page No. 21 of 21