Delhi District Court
State vs Mustkim @Mika on 7 April, 2025
IN THE COURT OF MS. DEEKSHA SETHI, JMFC-08, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-016397-2019 ID No. : 9201/2019 FIR No. : 427/2018 U/s : 33 Delhi Excise Act P.S. : Uttam Nagar State v/s Mustkim @ Mika a) Name & address of the : ASI Ramtek complainant No. 2613/DW PS Uttam Nagar b) Name & address of : Mustkim @ Mika accused s/o Hakimuddin r/o Hno. A-2/33, Hastsal Road, Uttam Nagar, New Delhi. c) Date of Commission of : 21.05.2018 offence d) Offence complained of : 33 Delhi Excise Act e) Plea of the accused : Pleaded not guilty. f) Final Order : Acquitted. g) Date of Institution : 04.04.2019 h) Judgment Pronounced on : 07.04.2025 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 21.05.2018, at about 8:30 PM, accused Mustkim @ Mika was found in possession of 80 quarter bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only, at Khera Park, near A-3 Block, Uttam Nagar, New Delhi. Thereafter, the complainant ASI Ramtek informed about the said incident State v/s Mustkim @ Mika Page 1 of 12 Cr. Case No. 9201/2019 to the duty officer at the police station and police official from PS Uttam Nagar reached at the spot. Thereafter, an FIR bearing no. 427/2018 u/s 33 Delhi Excise Act was registered at PS Uttam Nagar. Investigation of the case was thereafter handed over to Investigating Officer HC Krishan Kumar.
Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e.,Mustkim @ Mika. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against him, to which he had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined the following witnesses:
(i) PW-1 ASI Ramtek Yadav has deposed that in the year 2018, he was posted at PS Uttam Nagar as ASI.
On 21.05.2018, he was on patrolling duty at beat no. 2 alongwith Ct. Harbhajan Singh. At about 8:30 PM, during patrolling when they reached at Khera Park, Uttam Nagar, they found that one person namely Mustkim @ Mika was carrying two white plastic State v/s Mustkim @ Mika Page 2 of 12 Cr. Case No. 9201/2019 bags. Upon checking, the said two plastic kattas were found to be containing 80 quarter bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only 180 ml each. He took out one quarter bottle as a sample and put it in white pullanda and sealed it with the seal of RT. Remaining 79 quarter bottles were again put in the same two plastic bags and sealed with the seal of RT. He shared the said information with duty officer of PS Uttam Nagar. He also prepared tehrir ExPW1/A and got the case registered through Ct. Harbhajan. He seized the illicit liquor vide seizure memo ExPW1/B. He prepared seal handing over memo ExPW1/C. He filled up form M-29. He handed over the accused and case property to HC Krishan. HC Krishan recorded the disclosure statement of accused and also arrested the accused in his presence. HC Krishan prepared site plan at his instance. He took the accused to get his medical examination conducted to DDU hospital. Witness correctly identified the accused in the court. HC Krishan recorded his statement u/s 161 CrPC. Witness also identified the case property and the same was exhibited as Ex.P-1 and the remaining case property was destroyed vide order dated 26.07.2018 and the said order was exhibited as Ex. P-2. This witness was thoroughly cross examined by Ld. Defence counsel.
State v/s Mustkim @ Mika Page 3 of 12 Cr. Case No. 9201/2019(ii) PW-2 HC Harbhajan has deposed that in the year 2018, he was posted at PS Uttam Nagar as a constable. On 21.05.2018, he was on patrolling duty at beat no. 2 alongwith ASI Ramtek. At about 8:30 PM, during patrolling when they reached at Khera Park, Uttam Nagar, they found that one person namely Mustkim @ Mika was carrying two white plastic bags. Upon checking, the said two plastic kattas were found to be containing 80 quarter bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only 180 ml each. ASI Ramtek took out one quarter bottle as a sample and put it in white pullanda and sealed it with the seal of RT. Remaining 79 quarter bottles were again put in the same two plastic bags and sealed it with the seal of RT. ASI Ramtek shared the said information with duty officer of PS Uttam Nagar. ASI Ramtek also prepared tehrir ExPW1/A and got the case registered through him. ASI Ramtek seized the illicit liquor vide seizure memo ExPW1/B. ASI Ramtek prepared seal handing over memo ExPW1/C. ASI Ramtek filled up form M-29. ASI Ramtek handed over the custody of accused and case property to HC Krishan. HC Krishan recorded the disclosure statement of accused ExPW2/A and HC Krishan arrested the accused in his presence. ASI Ramtek took the accused to his medical examination to DDU hospital. Witness correctly identified the accused in State v/s Mustkim @ Mika Page 4 of 12 Cr. Case No. 9201/2019 the court. HC Krishan recorded his statement u/s 161 CrPC. Witness also identified the case property and the same was exhibited as Ex.P-1 and the remaining case property was destroyed vide order dated 26.07.2018 and the said order was exhibited as Ex. P-2. This witness was thoroughly cross examined by Ld. Defence counsel.
(iii) PW-3 HC Krishan has deposed that in the year 2018, he was posted at PS Uttam Nagar as head constable. The investigation of the present case was marked to him after registration of FIR. He reached at the spot, with Ct. Harbhajan. After reaching the spot, he met with ASI Ramtek who handed over the custody of accused Mustkim @ Mika and case property and seizure memo to him. After that he prepared site plan at the instance of ASI Ramtek Ex. PW1/D. Thereafter, he arrested the accused vide arrest memo Ex.PW2/B. He also conducted personal search memo Ex. PW3/A. He asked some public persons to join the investigation but all of them refused. Thereafter, he left the spot alongwith accused and case property and reached at the police station and after reaching at PS Uttam Nagar, he deposited the case property in Malkhana. After taking instructions from him, ASI Ramtek alongwith accused went to DDU Hospital for getting medical examination conducted of accused. After medical examination they both came at PS Uttam Nagar. On next day, he State v/s Mustkim @ Mika Page 5 of 12 Cr. Case No. 9201/2019 produced the accused before concerned court and concerned court sent him to JC. During investigation, he also recorded the statement of witnesses U/s 161 CrPC. After completion of investigation, he submitted the charge-sheet before the concerned court. The witness identified the accused in court. This witness was cross examined by ld. Defence counsel.
(iv) PW-4 ASI Shiva Nand has deposed that on 21.05.2018, he was posted at PS Uttam Nagar as MHCM. On that day, he took case property/ samples sealed with seal of RT from IO ASI Ramtek and entry to this respect was made in register no. 19 at serial no. 4999 (Ex. PW4/A). On 03.07.2018, Ct. Dault Ram took the case property for depositing the same at Excise Office, Vikas Bhawan, ITO, Delhi vide RC certificate No. 225/2021/18 and after depositing the same, submitted the acknowledgement back into the malkhana. The RC certificate was exhibited as Ex.PW4/B. This witness was not cross examined by ld. Defence counsel despite having been given an opportunity to do so.
5. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR no. 427/2018, result analysis of Excise Control Laboratory and DD no. 59B dated 21.05.2018. The above-said documents were exhibited as Ex. X-1, Ex.X-2 and Ex. X-3 respectively.
State v/s Mustkim @ Mika Page 6 of 12 Cr. Case No. 9201/2019Accordingly, the concerned witnesses were dropped by the prosecution.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC r/w section 281 CrPC was recorded wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was innocent and falsely implicated. The accused chose not to lead any evidence in his defence.
7. It is argued by Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of quarter bottles of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
State v/s Mustkim @ Mika Page 7 of 12 Cr. Case No. 9201/2019Findings of the Court
10.It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11.The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the examination of PW-1 ASI Ramtek Yadav (the complainant and first IO), PW-2 HC Harbhajan and PW3 HC Krishan (the second IO) reveals that the first IO ASI Ramtek had asked some public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non- joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case.
State v/s Mustkim @ Mika Page 8 of 12 Cr. Case No. 9201/2019In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.'' (Emphasis supplied)
13.In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
14.Perusal of the record further reveals that there is a delay of about forty days in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the State v/s Mustkim @ Mika Page 9 of 12 Cr. Case No. 9201/2019 CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
15.In the instant case, alleged recovery was made on 21.05.2018 yet the samples were sent to the Excise Control Laboratory for examination on 03.07.2018, i.e., after about forty days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
16.It is observed that the complainant as well as the first IO in the present case is the same police official. Thus, the initial proceedings prior to registration of FIR and the subsequent investigation were carried out by the same official. In Mohan Lal Vs. State of State of Punjab, (2018) SCC Online SC 974, the Hon'ble Apex Court has held as under:
"If an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be State v/s Mustkim @ Mika Page 10 of 12 Cr. Case No. 9201/2019 proved. It would be illogical to presume and contrary to normal human conduct, that he would at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.
It is therefore held that a fair investigation, which is but the very foundation of a fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in-laws carrying a reverse burden of proof."
(Emphasis supplied)
17.Thus, it is a settled proposition of law that the informant and the investigator must not be the same person. In the present case, ASI Ramtek Yadav is the complainant as well as the first IO of the present case and in view of the law laid down by the Hon'ble Apex Court, the same raises doubts over the nature of investigation carried out and thus, creates a dent on the prosecution version.
18.Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a katta which contained illicit liquor was recovered from the possession of the accused. The accused Mustkim @ Mika is, therefore, acquitted of the offence u/s 33 Delhi Excise Act.
State v/s Mustkim @ Mika Page 11 of 12 Cr. Case No. 9201/201919.This judgment contains 12 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
20.Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
Digitally
ANNOUNCED IN THE OPEN COURT signed by
DEEKSHA
TODAY, i.e., ON 07.04.2025 DEEKSHA SETHI SETHI Date:
2025.04.07 16:10:11 +0530 Deeksha Sethi Judicial Metropolitan First Class-03 South-West District/New Delhi 07.04.2025 State v/s Mustkim @ Mika Page 12 of 12 Cr. Case No. 9201/2019