Delhi District Court
State vs . Anoop Paswan @ Triloki on 10 January, 2019
1
IN THE COURT OF ANUBHAV JAIN, METROPOLITAN MAGISTRATE,
SOUTHEAST, SAKET COURTS, NEW DELHI.
FIR NO. 302/16
PS OIA
U/s 33/38 Delhi Excise Act
State Vs. Anoop Paswan @ Triloki
JUDGMENT
A. SL. NO. OF THE CASE : 334/2/16
B. DATE OF INSTITUTION : 08.12.2016
C. DATE OF OFFENCE : 05.05.2016
D. NAME OF THE : Ct. Puran Mal
COMPLAINANT : No. 2426/SE
E. NAME OF THE ACCUSED : Anoop Paswan
S/o Sh. Janardhan Paswan
F. OFFENCE
COMPLAINED OF : U/s 33 Delhi Excise Act
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 10.01.2019
Brief Statement of Reasons for Decision :
1. The accused person is produced before the court to stand trial for the offence punishable u/s 33/38 of Delhi Excise Act.
2. In brief facts of the case are that on 05.05.2016 ASI Suresh Tyagi received DD No. 20A upon which he reached at Gole Kuan, Tehkhand, near Prime Tower, OIA where he met Ct. Pooran Mal and Ct. Virender who handed over the accused Anoop Paswan to the IO. It is stated by Ct.
2Virender that on the said date he alongwith Ct. Virender were on beat duty when at about 12.15 pm they reached near Prime Tower, OIA they found one person who was carrying a white plastic katta upon his head and upon seeing the police officials, he started moving towards Tehkhand Village. He further stated that upon apprehension he was arrested and upon checking the said plastic katta illicit liquor was found in the same.
It is further stated that IO asked 45 public persons to join the investigation, however none of them joined. It is further stated that upon checking total 96 quarters of Asli Santra Desi Masaledar Sharaab for sale in Haryana only was found in the plastic katta from which one was kept aside as sample and remaining bottles of illicit liquor were kept in the said plastic katta with a white cloth and were sealed with the seal of 'ST' and seal was handed over to Ct. Pooran and the case property was deposited in Malkhana.
IO got FIR registered against the accused u/s 33/38 Delhi Excise Act and the site plan was prepared at the instance of Ct. Ravinder Pal. Accused was arrested and his disclosure statement was recorded. Thereafter IO recorded the statement of witnesses u/s 161 CrPC and the accused Anoop was sent to JC. The Excise Commissioner was informed and the samples was sent to Excise Laboratory, Delhi and the result was received thereof. After completion of investigation, chargesheet was filed against the accused Anoop Paswan u/s 33/38 of Delhi Excise Act.
3. Accused appeared before the court on 10.01.2017 and copy of the charge sheet and documents annexed therewith were supplied to accused u/s 207 CrPC. Thereafter on the same day charge u/s 33/38 of Delhi Excise Act was framed against the accused by Ld. Predecessor Court to which 3 accused pleaded not guilty and claimed trial. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution examined following witnesses :
4.1 PW1 HC Virender deposed that on 05.05.2016, he was posted as constable at PSOIA and on that day, he alongwith Ct. Pooran was on patrolling duty near DLF Tower, OIA, PhaseI, New Delhi. He further deposed that on that day at around 12:15 pm, they saw accused Anoop coming from Tehkhand village who took turn after seeing them and upon suspicion they apprehended him. He further deposed that accused was carrying plastic katta and upon checking the katta and it was found containing 96 quarter bottles of illicit liquor of brand santra masaledar desi sharab for sale in Haryana only. He further deposed that Ct. Pooran called IO/HC Suresh and IO came at the spot and requested few public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. He further deposed that IO had counted the bottles of illicit liquor and got separated one bottle of illicit liquor as sample and thereafter, kept remaining bottles in the plastic katta and duly sealed it with the seal of ST. He further deposed that the sample bottle was also sealed with the seal of 'ST' and after using the seal, same was handed over to Ct. Pooran. He further deposed that IO prepared the seizure memo Ex.PW1/A and got the FIR registered through him. He further deposed that after registration of FIR, he came back at the spot and handed over the original rukka and copy of FIR to the IO and IO filled up form M29. He further deposed that accused was arrested and his personal search was conducted Ex.PW1/B and Ex.PW1/C. He further deposed that case property 4 was deposited in malkhana and accused was brought to PSOIA. He correctly identified the accused and case property in the court.
4.2 PW2 Ct. Pooran deposed similar in the lines of PW1 and same is not being reiterated here for the sake of brevity.
4.3 PW3 Ct. Jeetam deposed that on 31.05.2016 he took the case property i.e. one quarter bottle of illicit liquor to Deputy Commissioner of Excise Department.
4.4 PW4 SI Raghunath proved the FIR Ex. PW4/B. 4.5 PW5 ASI Bachoo Singh deposed that on 31.05.2016 he was posted as HC / MHC(m) at PSOIA and on that day he had sent samples of illicit liquor to Excise Laboratory, LBlock Vikas Bhawan vide RC No. 78/21/16 Ex. PW5/A through Ct. Jeetam. He further deposed that Ct.
Jeetam got the samples deposited to the Excise Laboratory and thereafter came to PSOIA and handed over him the receiving. He further deposed that the pullandas were not tampered till it remain in his possession.
4.6 PW6 ASI Suresh Tyagi deposed that on 05.05.2016 he was posted as HC at PS OIA and on that day he after receiving DD No. 20A regarding illicit liquor reached at the spot i.e. Prime Tower, near Gola Kuan, Tehkhand OIA Phase1 where he met Ct. Puran and Ct. Virender who had apprehended the accused and illicit liquor at the spot. He further deposed that thereafter Ct. Puran informed him that accused Anoop was carrying illicit liquor in white katta and on checking of the said katta he found 96 quarter bottles of illicit liquor of Rasila Santra Masaledar desi sharab for sale in Haryana only. He further deposed that he took out one quarter bottle as sample and remaining case property and the sample were sealed with the seal of "ST" and seal was handed over to Ct. Puran. He further deposed that said case property were taken into police possession vide seizure 5 memo Ex. PW1/A and he filled form M29 at the spot. He further deposed that he recorded statement of Ct. Puran Ex. PW2/A and prepared the rukka Ex. PW6/A and got the FIR registered through Ct. Virender. He further deposed that after registration of FIR, Ct. Virender returned to spot with original rukka and copy of FIR and the same were handed over to him. He further deposed that he prepared the site plan at the instance of Ct. Puran Ex. PW6/B and recorded disclosure statement of accused Ex. PW6/C and after interrogation he arrested and carried out the personal search of the accused vide memo Ex. PW1/B and PW1/C. He further deposed that after medical examination of the accused, accused was sent to the lock up. He further deposed that he also prepared punchnama of case property Ex. PW6/D and case property was deposited in the malkhana. He further deposed that sample of case property was sent to Excise Laboratory through Ct. Jeetam vide RC No. 78/21/16 and after that accused produced before the Court and sent to JC. He further deposed that during the course of investigation he also recorded statement of witnesses and after completion of investigation, filed the charge sheet in the court. He correctly identified the accused and case property in the court.
It is pertinent to state in here that the accused has admitted the Excise Laboratory report u/s 294 CrPC vide his separate statement dt. 27.09.2018 and same is Ex. A1.
5. Thereafter, statement of the accused U/s 313 CrPC was separately recorded on 01.11.2018 to which accused denied all the allegations as levelled against him by the prosecution and further stated that he has been 6 falsely implicated in the present case. He further chose not to lead any defence evidence.
6. I have heard Ld. APP for the state and Ld. counsel for the accused person. I have carefully perused the case file.
7. It is argued by Ld. APP for the State that prosecution has able to prove that the recovery was effected from the accused person. He further argued that as per the Excise Laboratory Report, the substance which was seized from the accused person was alcohol and as such prosecution has able to prove its case beyond reasonable doubts and accused person is liable to be convicted.
8. On the other hand it is argued by counsel for accused that no public witness has been made by the IO and that accused person is falsely implicated in the present case and that he is entitled to be acquitted.
9. It is the case of prosecution that the accused Anoop was found in possession of illicit liquor while he was carrying the same in the katta.
It is pertinent to state in here that although as per the case of prosecution the seizure memo were prepared prior to lodging of FIR, however the abovesaid documents bears the FIR number. In Pradeep Saini v. State 2009 SCC OnLine Del 2803 it has been observed by Hon'ble High Court of Delhi that :
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution the sketch Ex.PW3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW2/B. 7 Surprisingly, sketch Ex.PW3/D of the knife contains the number of the FIR registered in the present case. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW2/B has appeared on the document, which was allegedly prepared before registration of the FIR. This gives rise to two inferences; either the FIR Ex. PW 2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said document 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 knife in the manner alleged by the prosecution.
10. It is further pertinent to state in here that only one photograph of the alleged case property has been placed on record. Perusal of said photograph merely shows that one sack is lying in a tied condition, however it cannot be made out as to whether the said sack is having the case property or not. Further the case property was never produced before the court in the present matter.
11. It is further pertinent to state in here that although it is admitted by the IO and other public person were present at the spot, however the IO has not joined any public person in the investigation. Further perusal of record reveals that no efforts were made by the IO to join any public person in the investigation. In Surender @ Dheeraj v. State 2018 SCC OnLine Del 7506, it was observed by Hon'ble High Court of Delhi:
77. The arrests of the accused were all in public places and yet none of the arrests were in the presence of independent public witnesses. Parrotlike statements to the effect that passersby were asked but declined to join 8 are given by the IOs in the present case. This does not convince the Court. In Kehar Singh v. State (1988) 3 SCC 609 : AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this contention, the Supreme Court observed:
"It may be as technically argued by the learned Additional Solicitor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal Search. But it is wellknown that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of this accused is no other evidence except the evidence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution."
78. In the present case every arrest is on the basis of both information provided by and identification by a secret informer who is not produced as a PW. Most arrests have taken place from open public places and during times when there is a lot of movement of the public. It is therefore difficult to accept that in every such instance, no independent witness was available. The circumstance of arrest has not been convincingly proved by the prosecution.
912. Reliance is also placed upon the judgment passed by Hon'ble High Court of Delhi in Anoop Joshi vs. State 1999 (2) CC Cases 314 (DHC) and by Hon'ble High Court of Punjab and Haryana in Roop Chand vs. State of Haryana 1999 (1) Crl. 69.
13. It is further pertinent to state in here that although 96 quarter bottles were recovered from the possession of accused, as per the case of prosecution only one bottle was kept aside for sample and the sample was not taken from the remaining bottles said to have containing illicit liquor recovered from the possession of accused person. As such there is nothing on record placed by the prosecution to show that bottles alleged to be recovered from the possession of accused were having illicit liquor as sample was not taken out from them and neither the samples were sent for Excise Laboratory for verification.
14. As per the case of prosecution, Ct. Virender and Ct. Puran Mal were on patrolling duty at the time of recovery of the liquor from the possession of the accused. However, the prosecution has failed to place and prove on record the departure entry of the said witnesses vide which they allegedly together left the police station for the purpose of patrolling in the area. The said departure entry was indispensable for establishing their presence at the spot of alleged recovery. Therefore, their presence at the alleged place, time and date of recovery of the illicit liquor from the possession of the accused is doubtful.
15. Considering the fact that :
10a) no public witness was joined in the investigation despite the recovery and arrest was made at a public place,
b) that seizure memo bears FIR number, although the FIR was lodged subsequent to preparation of seizure memo,
c) case property was not produced before the court neither there is any photograph on record which can show the seized bottles of illicit liquor
d) the samples were not taken from all the bottles alleged to be seized,
e) the departure entry of Ct. Puran Mal and Ct. Virender is not placed on record, same raises serious doubts upon the recovery of illicit liquor alleged to have been shown from the accused persons.
16. Accordingly, in view of the aforesaid facts, it has to be concluded that the prosecution has failed to establish beyond reasonable doubt that the alleged recovery was infact made from accused.
17. Section 52 of Delhi Excise Act 2009 provides that presumption is raised with respect to commission of offence until the contrary is proved that the accused has committed the offence punishable under that section in respect of any intoxicant, steal utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
18. Hence, before the presumption is raised the prosecution has to establish that illicit liquor was recovered from the accused. However, in this case, the prosecution has failed to prove that illicit liquor was recovered 11 from the possession of accused. Accordingly, the presumption of Section 52 of the Act ibid cannot be invoked.
19. In view of the law and facts discussed above, prosecution has failed to prove its case beyond reasonable doubts. In view of the same accused Anoop Paswan @ Triloki stands acquitted for the offence u/s 33 Delhi Excise Act.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 10.01.2019 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 11 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE, SOUTHEAST, SAKET COURTS, NEW DELHI