Delhi District Court
State vs . Kanta Devi on 31 August, 2022
IN THE COURT OF SH. SUKHMAN SANDHU,
M.M.-03 (SOUTH DISTRICT), SAKET NEW DELHI.
State Vs. Kanta Devi
FIR No. : 679/2016
P.S. : Neb Sarai
U.S. : U/s. 33 Delhi Excise Act.
JUDGMENT
a. Sl. No. of the case and : 1825/2017 dt. 12.05.2017 date of its institution b. Name of the complainant : HC Sukhbinder Singh.
c. Date of commission of
offence : 23.08.2016.
d. Name of the accused : Smt. Kanta Devi
W/o Sh. Om Prakash,
R/o House No. 778/13, L-1st,
Sangam Vihar, New Delhi.
e. Offence complained of : U/s 33 of Delhi Excise Act.
f. Plea of accused : Pleaded not guilty.
g. Final order : Acquitted.
h. Date of such order : 31.08.2022.
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. In brief, the story of prosecution is that on 23.08.2016 at 9 AM at House No. 778/13, L-1st Sangam Vihar, New Delhi, within the jurisdiction of Neb Sarai, accused was found in possession of illicit liquor, without any license or permit. Accused has therefore been sent to face trial for offence punishable under Section 33 of Delhi Excise Act.
2. After completion of the investigation, the charge-sheet was filed in the Court. Copies were supplied to accused and after completion of necessary formalities, charge under Section 33 of Delhi Excise Act was framed against accused on 12.01.2018 to which she pleaded not guilty and claimed trial.
3. The prosecution to prove its case, examined four witnesses.
4. PW1 Ct. Rakesh deposed as under;
"That on 23.08.2016, he was posted as a constable at PS Neb Sarai and was on emergency duty from 8PM to 8AM, that on receipt of DD 56A by HC Sukhwinder / IO, thereafter he alongwith IO reached at House No. 778/13, Sangam Vihar where some persons were selling liquor and purchasing the same from an old lady, the public persons left the spot and at the spot, Ct. Rakesh Kumar and IO found two plastic sacks of white colour, one of them containing 200 quarter of Asli Santra Maseledar Deshi Sharab of 180 ml each for sale in Haryana only and another containing 150 quarters of Asli Santra Maseledar Deshi Sharab of 180 ml each for sale in Haryana only. Thereafter, Ct. Rakesh Kumar identified you in court and one public person has named you as Kanta Devi who were selling the liquor, thereafter the IO had handed over the original rukka to Ct. Rakesh Kumar for registration of FIR. That witness correctly identified the accused as well as the case property".
5. PW2 HC Ramesh Chand was duty officer on 23.08.2016 and on that day at about 11.35PM, Ct. Rakesh produced a rukka sent by HC Sukhvinder for registration of FIR, on the basis of which he registered the FIR Ex PW2/A and made his endorsement Ex PW2/B on the rukka.
6. PW3 ASI sukhwinder Singh deposed as under;
" That he was posted as HC at PS Neb Sarai, he alongwith Ct. Rakesh reached at House No. 778/13, Sangam Vihar where some persons were selling liquor and purchasing the same from an old lady, the public persons left the spot and at the spot, Ct. Rakesh Kumar and IO found two plastic sacks of white colour, one of them containing 200 quarter of Asli Santra Maseledar Deshi Sharab of 180 ml each for sale in Haryana only and another containing 150 quarters of Asli Santra Maseledar Deshi Sharab of 180 ml each for sale in Haryana only. Thereafter, Ct. Rakesh Kumar identified you in court and one public person has named you as Kanta Devi who were selling the liquor, thereafter the IO had handed over the original rukka to Ct. Rakesh Kumar for registration of FIR. Further it has come in evidence against you that case property was sealed by him. Further he prepared the rukka / therir , site plan, seizure memo. Further, he idnetified the case property as well as you during his testimony in Court".
7. PW4 HC mahender Singh deposed as under;
"That on 23.08.2016, I was posted as HC at PS Neb Sarai. On that day, Ct. Rakesh handed over me the copy of FIR and original rukka of the present case at PS Neb Sarai as the further investigation of this case was marked to me. Thereafter, I along with Ct. Rakesh reached at spot i.e., Gali no. 13, House No. 778, L-1st Sangam Vihar, New Delhi, where I met with HC Sukhvinder and accused Kanta Devi alongwith case property i.e. illicit liquor. Thereafter, HC Sukhvinder handed over me the custody of case property and document. Thereafter, I interrogated the accused Kanta Devi. Thereafter I prepared site plan at the instance of HC Sukhwinder, which is already Ex PW1/B. Thereafter, accused was orally directed to join the invest KANTA igation as and when required and she was not arrested because she was old aged lady and due to odd time on that day. Thereafter, case property was deposited in the malkhana of PS. On 15.10.2016, I served notice u/s. 41.A CrPC, upon the accused which is now Ex PW4/A. Accused was also bound down in the present case vide memo Ex PW4/B. In the month of January, 2017, the sample of illicit liquor were sent to Excise Lab through Ct. Rajesh. During the course of investigation, I recorded the statement of witness u/s. 161 CrPC, and I also got collected the result from Excise Lab. Thereafter, I prepared the charge sheet and submitted before this Hon'ble Court. Witness correctly identified the accused and case property during his evidence.
08. Prosecution evidence was closed by order of this court on 21.07.2022.
09. Statement of accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC"), where all incriminating evidence was put to her. The accused denied all the allegations vehemently.
10. I have heard the arguments of both the parties and perused the record.
11. It has been argued by the Ld. APP for the State, that the essential ingredients for an offence under Section 33 of the Delhi Excise Act have successfully been proved by the prosecution beyond reasonable doubt, the witnesses have supported each other's testimony and have thus stood the test of cross examination.
12. Per contra, it has been argued by the Ld. Counsel for the accused that there are numerous contradictions in the case as put forth by the prosecution and the basic parameters of law essential for a conviction under Section 33 Excise Act have not been proved by the prosecution.
13. Firstly, it has been argued by the Ld. Counsel for the accused that the proof of recovery of the case property which is the essence of the offence under Section 33 Excise Act, is doubtful on account of lack of public witnesses to support the factum of the recovery, the examination of the police witnesses, wherein PW1 has stated that the case property was taken to the Police Station by an auto and on the other hand it was stated by PW4 that the case property was taken by a private vehicle.
14. Secondly, Ld. Counsel for the accused has stated that the documents, that is the seizure memo and Form 29 which were stated to have been prepared before the registration of FIR, bear the FIR number. A specific question was also put to the witnesses whether anything was added to the said documents after registration of the FIR, to which the witnesses replied that nothing was added. Further Ld. Counsel has argued that no departure or arrival entries were made by the police officials.
15. Thirdly, it has been submitted that while the FIR was registered on 23/08/2016, the sample of the alleged illicit liquor was sent only on 16/01/2017.
16. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubt and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt inevitably has to go to the accused.
17. In the case in hand, the seizure memo was prepared before registration of FIR. However, seizure memo Ex PW1/B contains the FIR number on the same but there is no explanation furnished by prosecution, as to how and under what circumstances, the same has appeared. The same causes reasonable doubt with respect to recovery of the illicit liquor, especially viewed in the absence of any public witnesses, the doubt with respect to the vehicle in which the said case property was taken to the police station, and absence of any departure and arrival entries made by the police officials. In this regard, I place my reliance upon judgment of the the Hon'ble High Court of Delhi rendered in Giri Raj Vs. State 83 (200) DELHI LAW TIMES 201, wherein the Hon'ble High Court of Delhi held as under :
"The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This give rise to two inferences that either the FIR (Ex.PW2/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 situation, 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". The same view was adopted in the case of Mohd. Hashim. Appellant Vs. State 2000 CRI.L.J. 15010 Pawan Kumar Vs. Delhi Administration, 1987 CCC 585 and Mewa Ram Vs. State 200 CRI.L.J.114.
18. 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 the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials read alongwith the attending circumstances, gives rise to a doubt with respect to the veracity of the case as put forth by the prosecution. Reference in this regard can be made to Rattan Lal Vs. State 1987 (2) Crimes 29.
19. In the present case, as per PW3 ASI Sukhbinder Singh, public persons were requested to join the investigation. However, it is clear that no efforts were made to join the independent witnesses despite their availability which causes a serious dent in the story of the prosecution. Reliance in this regard is placed upon Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
20. Moreover the statutory presumption envisaged in Section 52 of the Delhi Excise Act, also cannot be invoked in the present case as the alleged recovery of liquor from the accused has become doubtful in view of the reasons mentioned above.
21. Hence, in view of the above discussion serious doubts have been cast in the case as put forth by the prosecution, the recovery of the contraband itself seems doubtful in the manner as alleged, the supporting documents indicating the factum of the recovery, the seizure memo, seem to be ante dated. To have a conviction in these facts and circumstances, would be a travesty of justice. The prosecution, thus, has failed to prove the guilt of the accused Kanta Devi. Accordingly, the accused Kanta Devi is hereby acquitted.
Announced and dictated in (SUKHMAN SANDHU)
the open Court on 31.08.2022 MM(03) / South District
Saket / New Delhi