Delhi District Court
State vs . on 12 May, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 1402/2021
Unique Case ID No. -: DLSW020068272021
FIR No. -: 775/2020
Police Station -: Chhawla
Section(s) -: 33 Delhi Excise Act
In the matter of -
STATE
VS.
SUNITA DEVI
W/o Sh. Babu Lal,
R/o H. no. 22, Dwarka Vihar,
Najafgarh, New Delhi.
.... Accused
1. Name of Complainant : Ct. Jitender
2. Name of Accused : Sunita Devi
Offence complained of or
3. : 33 Delhi Excise Act
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 19.08.2020
offence
6. Date of Filing of case : 25.01.2021
7. Date of Reserving Order : 12.05.2023
8. Date of Pronouncement : 12.05.2023
9. Final Order : Acquitted
Argued by -: Ld. APP for the State.
Ld. counsel for the accused.
Cr. Case No. 1402/2021 State vs. Sunita Devi Page 1 of 13
BRIEF STATEMENT OF REASONS FOR THE DECISION FACTUAL MATRIX -
1. Succinctly, it is the case of the prosecution that on 19.08.2020, at about 08.10 PM, at main road, Goyla Dairy, near Nehru Academy, within the jurisdiction of PS Chhawla, accused Sunita Devi was found in possession of illicit liquor i.e. 125 quarter bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only, without any license or permit for the same. As such, it is alleged that she committed an offence punishable under Section 33 of the Delhi Excise Act, 2009 (hereinafter, "Excise Act").
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of subject FIR, the investigating officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against accused was filed. After taking cognizance of the offence, she was summoned to face trial for the abovesaid offence.
3. On her appearance, a copy of charge-sheet was supplied to her in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter,"CrPC"). On finding a prima facie case against the accused, charge under Section 33 Delhi Excise Act was framed against her. She pleaded not guilty to the charge and claimed trial.
Cr. Case No. 1402/2021 State vs. Sunita Devi Page 2 of 13PROSECUTION EVIDENCE -
4. The matter was then fixed for recording of PE. In support of its version, prosecution has examined a total of five witnesses-
Witness Name Nature of testimony
PW-1 HC Mukul/ He supported the case of prosecution.
Recovery He deposed that he was on patrolling
witness duty on 19.08.2020, with Ct. Jitender,
when he apprehended the accused in
possession of illicit liquor, upon the tip of a secret informer. He deposed that upon this, he called for the IO, who came to the spot with Ct. Anita, seized the case property in his presence vide seizure memo Ex PW1/A, bearing his signatures at point A, prepared the site plan Ex PW1/B, interrogated the accused vide memo Ex PW1/C, , and also served a notice under Section 41 A CrPC upon the accused. He identified the sample case property in his testimony, Ex P1 and relied upon the order Mark P-2 vide which remaining case property was destroyed. He was duly cross examined and discharged.
PW2 HC Jitender/ He supported the case of the Recovery prosecution as well. He deposed that he witness was on patrolling duty on the day of incident with HC Mukul, when the accused was apprehended by them in possession of illicit liquor. He deposed that the illicit liquor was recovered from the possession of the accused by the IO, in his presence. He proved on record seizure memo of case property Ex.
PW1/A, site plan Ex PW1/B, his own statement Ex PW2/A He identified the sample case property Ex P-1, and the Cr. Case No. 1402/2021 State vs. Sunita Devi Page 3 of 13 remaining case property from the photographs Ex P3. He was duly cross examined and discharged.
PW3 HC Pradeep He testified that he had received the Kumar/ sample case property, sealed with the formal seal of "DS" on 28.08.2020 vide Road witness Certificate Ex PW3/A, and the same was deposited by him for testing in the Excise Laboratory the same day. He was duly cross examined and discharged.
PW-4 HC Anita She testified that she had accompanied the IO HC Dharmender on 19.08.2020 for the investigation of the subject FIR. She deposed that IO apprehended the accused in her presence, and also seized the case property vide seizure memo Ex PW1/A , which bears her signatures at point C thereof, in her presence . She deposed that despite request of IO, no public persons joined the investigation. In her testimony, she also relied upon the site plan Ex PW1/B which was prepared by the IO in her presence, and correctly identified the sample case property Ex P1, and remaining case property from the photographs, Ex P3.
She was duly cross-examined and discharged.
PW5 HC He deposed that investigation of the Dharmender/ case was marked to him vide DD no. Investigation 99A. He deposed that he had seized the officer case property, sealed the same with the seal of 'DS' and apprehended the accused on the date of incident. He supported the case of the prosecution and deposed about the codal formalities done by him. In his testimony, he relied on the documents being the seizure memo of case property Ex. PW1/A, Cr. Case No. 1402/2021 State vs. Sunita Devi Page 4 of 13 form M-29 Ex PW5/A, tehrir Ex.
PW5/B and notice under Section 41A CrPC Ex. PW5/C. He was cross examined at length before being discharged as a witness.
5. The remaining document i.e. FIR no. 775/2020 PS Chhawla Ex. A1, Certificate under Section 65B of Indian Evidence Act, Ex. A2 and Excise result dated 28.10.2020 Ex. A3 were put to the accused, and were admitted by her under Section 294 CrPC. Accordingly, the corresponding witnesses were dropped from the list of prosecution witnesses. PE was closed thereafter.
6. Thereafter, in order to accord an opportunity to the accused to personally explain the incriminating circumstances appearing in evidence against her, the statement of accused was recorded without oath under Section 313/281 CrPC. She submitted that she is innocent and has been falsely implicated in the present case. She stated that the recovery was planted on her. To a specific query, she stated that she does not wish to lead defence evidence in the affirmative.
7. The matter was then fixed for final arguments. Final arguments heard. Record perused. Considered.
8. To prove the charge under Section 33 Delhi Excise Act against the accused, prosecution had to prove:-
(i) accused was found in possession of case property.Cr. Case No. 1402/2021 State vs. Sunita Devi Page 5 of 13
(ii) The case property is illicit liquor of a description, the possession of which without any permit or license contravened the provision of law.
9. Record reveals that several crevices have been pointed out by the accused in the case of prosecution, leading this Court to the conclusion that recovery of case property from the accused was not proved by the prosecution as per law.
10. It is the case of the prosecution that the alleged recovery of the case property was made from the accused from a busy road. The area of the alleged recovery, therefore, was presumably crowded. Despite this, no public witnesses were joined in the prosecution. The witnesses of the prosecution, PW1, PW2, PW4 and PW5 deposed on oath that despite availability of independent public witnesses, no such witnesses were joined in the investigation. PW1, PW2, PW4 and PW5 deposed that a request was made to public witnesses to join the investigation, but they refused, as a result of which no independent witnesses were joined in the investigation. Admittedly, however, IO did not serve any notice upon these witnesses consequent to this refusal.
11. Now, it is true that non-joining of independent witnesses cannot be a sole ground to discard the entire prosecution story, in view of the law laid down by the Hon'ble Supreme Court of India in Appabhai versus State of Gujarat AIR 1988 SC 696, evidence in each case has to be weighed in light of the peculiar factual matrix of the same. Non-joining of Cr. Case No. 1402/2021 State vs. Sunita Devi Page 6 of 13 public witnesses, despite their easy availability, reflects lack of genuine efforts on the part of the prosecution, denting its case. The IO could have easily served notice in writing to the witnesses, to make them join the investigation. But not to be. Where the IO has failed to make genuine efforts to join public witnesses, veracity of the case of prosecution becomes doubtful. At this juncture, this court seeks guidance from the law laid down by the Hon'ble High Court of Delhi in Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC):-
"18.It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is 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 shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
12. Further, the present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by a police official namely Ct. Jitender, who was on patrolling duty at the relevant time and Cr. Case No. 1402/2021 State vs. Sunita Devi Page 7 of 13 place, as per the prosecution story. He is stated to be a chance witness at the spot, but his presence thereat could not be proved by prosecution beyond reasonable doubt. He deposed that he had made a departure entry before he proceeded for his duty, being GD no. 81A. However, the said documents does not bear his signatures, and has not been proved by prosecution as per law. This testimony doesn't support the case of prosecution. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and 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 shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. As such, entry made by DD writer, not containing signatures of witness, does not fulfill requirement of law. Reference can be placed upon Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
"if the investigating 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 Cr. Case No. 1402/2021 State vs. Sunita Devi Page 8 of 13 complied with and the least that can be said is that it is so done with an oblique motive. 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."
13. It is also evident from the record that prosecution has made no efforts whatsoever to dig out the source from which the illicit liquor was procured by the accused. Lack of any efforts on part of the police to interrogate the accused on these lines is also reflective of a shoddy investigation, benefit of which, must accrue to the accused.
14. As per case of prosecution, the sample of case property was sealed with the seal of "DS". However, property brought to court was unsealed. As, such it could not be established by prosecution that any liquor was seized from accused, and the samples brought to court were samples of said case property.
15. Further, the samples were sent for testing on 28.08.2020, despite the fact that the alleged recovery was made on 19.08.2020. The fact that the prosecution has failed to explain where the property was present during the intervening period of more than nine days also casts a shadow of doubt on the case of the prosecution. None of the witnesses examined by the prosecution have stated that the samples of illicit liquor taken for examination from the time they were taken and till the time the said samples were handed over to the Public Analyst, the samples were not tampered with. In this regard, Hon'ble Delhi High Cr. Case No. 1402/2021 State vs. Sunita Devi Page 9 of 13 Court has held in Datu Ram v. State (Delhi) :1996(1) Crimes 604 : 1996(36) DRJ 527 : 1997(1) CCR 18as follows :
"In the State of Rajasthan v. Daulat Ram, 1980, C.C. Cases 83 (S.C), the Supreme Court observed that the prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the court could conclude that the seals remained intact throughout. Unfortunately, thiswarning seems to have fallen on deaf ears at least as far as this case is concerned.
3.Does the evidence as noticed above satisfy the requirement highlighted by the Supreme Court in Daulat Ram's case? The answer, to my mind, has necessarily to be in the negative.
4.The parcels were allegedly sealed at the spot by the Investigating Officer and if the Moharer Malkhana is to be believed the same were deposited with him by the said officer. However, the Investigating Officer no where says so. In any case, even if it be taken that the parcels were actually deposited by him, was it not for him to assure the Court that so long as they had remained in his possession they had not been tampered with? This, however, is not the end of the matter. The Investigating Officer nowhere says that he had filled the C.F.S.L. form nor is there anything, either in his statement or in the statement of the Moharer Malkhana or even in the entry made in the Register, that any such form was ever deposited. The Cr. Case No. 1402/2021 State vs. Sunita Devi Page 10 of 13 Constable who took the sample parcel also no where speaks of his having deposited any such form with the C.F.S.L. There are judgments of this court in which it has been held that absence of such evidence would be fatal to the prosecution. Reference, in this connection may be made to Chameli Devi v. State, 1993 JCC 293, Mool Chand v. State, 1993 (2) Delhi Lawyer 14, Anoop Joshi v. State, 1992 (2) CC Cases 314, Jagdish Prasad v. State, 55(1994) DLT 315 and Munni Lal v. The State, 1994 IV AD (Delhi) 1099.
5.Last, but not the least, the report of the C.F.S.L. itself, the relevant portion of which has already been reproduced above, cannot be considered to be such as to inspire the confidence of the Court with regard to the seals on the sample parcel. As would be apparent though it does show that the parcel received was having " the seal impression as per specimen enclosed intact" we are not told as to what was the "specimen enclosed". This further takes away the sting from the prosecution version".
16. Similarly, in Chandra Wati v. State (Delhi) :
1991(44) DLT 31 : 1991 JCC 508 it was also held by Hon'ble Delhi High Court that the prosecution has to bring on record the link evidence to show that the sample of the recovery alleged to have been made by the police witness from the accused was analysed in the CFSL without it being tampered with by any one, failure of which is a ground in favour of the accused.
17. Mark P2 is the order of the Assistant Commissioner Cr. Case No. 1402/2021 State vs. Sunita Devi Page 11 of 13 (Excise), whereby the case property of the present case has been ordered to be destructed. In Manjit Singh vs. State (2014) 214 DLT 646, the Hon'ble High Court of Delhi had observed that detailed panchnama containing the inventory should be prepared and photographs of the entire lot should be taken. It was further observed in Para No. 75 that the sample alongwith photographs and panchnama would be sufficient evidence during trial. In the present case, no panchnama was produced. Photographs of the entire lot of the case property were not produced, however, as is revealed by perusal of the document Ex. P3. Even with respect to the photograph, PW1, PW2, PW4 and PW5 admitted that the contents of the bag are not visible in the photograph. The same only shows a bag, with no seal visible. PW-1 has conceded to this effect his testimony. In this regard, even though Section 60 of the Excise Act provides that non production of case property does not affect the conviction, however, at the same time, the provision also lays down that samples and photographs of the confiscated property are to be preserved to meet evidentiary requirements. Without any proper photographs, the standard cannot be said to be met beyond reasonable doubt.
18. The fact that seizure memo of the case property Ex PW1/A mentions the FIR number, even though the seizure was made prior in time as per the case of prosecution, further dents the case of prosecution. No cogent explanation was given by the IO/PW4 to explain this discrepancy.
19. The fact that the IO or any other recovery witness Cr. Case No. 1402/2021 State vs. Sunita Devi Page 12 of 13 did not take any photographs of the case property at the time of recovery, despite easy availability of camera-phones, further casts a shadow of doubt on the case of prosecution.
20. When considered cumulatively, these factors show that accused has pugged various holes in the case of prosecution, and the benefit of this accrues to the accused Sunita W/o Babu Lal, who thus stands acquitted of the offence punishable under section 33 Delhi Excise Act, 2009.
Pronounced in open court on 22.05.2023 in presence of accused person.
This judgment contains 13 pages and each page has been signed by the undersigned. Digitally signed by MEDHA MEDHA ARYA ARYA Date:
2023.05.15 16:35:30 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 22.05.2023.Cr. Case No. 1402/2021 State vs. Sunita Devi Page 13 of 13