Delhi District Court
State vs . Kamini on 24 January, 2022
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 78/19
U/s 33/38 of Delhi Excise Act
PS: Swaroop Nagar
State vs. Kamini
Date of Institution of case:13.09.2019
Date of Judgment reserved: 24.01.2022
Date on which Judgment pronounced:24.01.2022
JUDGMENT
Case Number : 4802
Date of Commission : 17.03.2019
of offence
Name of the : Ct. Mukesh, No. 2048/OND
complainant
Name and address of : Kamini W/o Rocky
the accused R/o K347, Gali No. 5, Khadda Colony, Swaroop
Nagar, Delhi.
Offence complained : 33/38 of Delhi Excise Act of Plea of accused : Not guilty Final Order : Acquitted Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2022.01.24 15:56:24 +0530 FIR No. 78/19 State Vs. Kamini 2 BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is, that on 17.03.2019, at about 09:20 pm, near High Tension Line Pole, Gali no. 4, Swaroop Nagar, Delhi within the jurisdiction of PS Swaroop Nagar, accused Kamini was found in possession of 01 plastic katta containing 105 quarter bottles of illicit liquor of make Santra Masaledar Desi Sharab, for sale in Haryana only, without any permit or licence. Thus, according to prosecution, accused has committed offences punishable under Section 33 of the Delhi Excise Act, 2009. Further, accused was found unlawfully transporting the illicit liquor without permit and thus according to prosecution, accused has committed offence punishable under Section 38 of the Delhi Excise Act, 2009. Thereafter, upon investigation statements of witnesses were recorded. Subsequently, an FIR was registered against the accused.
2. Investigation was completed and police report under section 173 Cr.P.C. was filed under section 33 of the Delhi Excise Act, 2009 of the prescribed duty. Accused also committed offence punishable u/s 38 of Delhi Excise Act, 2009 as per the investigating agency and charges were framed under the section as well.
3. Copy of charge sheet and annexed documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused was framed under section U/s 33/38 of the Delhi Excise Act, 2009 vide order dated 12.10.2021.
FIR No. 78/19 Digitally
State Vs. Kamini signed by
RICHA
RICHA SHARMA
SHARMA Date:
2022.01.24
15:56:31
+0530
3
Thereafter, accused pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined three witnesses.
6. PW1 is Ct. Mukesh, No. 2048, OND, PS Alipur. He deposed, that on 17.03.2019, he was posted as constable at PS Swaroop Nagar. On that day, he was on patrolling duty in beat no. 2. At about 09:20 pm, he reached at Gali No. 4, near High Tension Line Pole, Kushak Road, Swaroop Nagar,Delhi and he saw that one lady was having a plastic katta on her shoulder. On suspicion, he stopped the said lady and asked about the plastic katta but she could not give any satisfactory answer. He checked the plastic katta and found it containing quarter bottles of illicit liquor. On inquiry, accused/ lady revealed her name as Kamini.
He gave the said information at PS. After some time, HC Ram Sewak alongwith W/Ct. Sumitra reached at the spot. He handed over the custody of accused and recovered liquor to IO. IO requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. IO checked the kattas and found it containing 105 quarter bottles of illicit liquor. IO took out 1 quarter bottle of illicit liquor as a sample and remaining liquor again was put into the katta. IO sealed the sample quarter bottle and remaining liquor with the seal of SK. After use, IO handed over seal to him. IO filled form M 29 at the spot. IO seized the liquor, vide memo which is Ex.PW1/A, bearing his signature at point A. IO recorded his statement, which is Ex.PW1/B, bearing his signature at point A. Thereafter, IO prepared rukka on the basis of his statement and handed over the same to him for registration of FIR. Accordingly, he went to the PS and got registered Digitally signed FIR No. 78/19 RICHA by RICHA SHARMA Date: State Vs. Kamini SHARMA 2022.01.24 15:56:37 +0530 4 the present FIR. After registration of FIR, he came back to the spot and handed over the copy of FIR and original rukka to IO. IO mentioned the FIR number on the seizure memo and M29 Form. IO prepared site plan on the spot at his instance, which is Ex.PW1/C. IO recorded the disclosure statement of accused, which is Ex.PW1/D, bearing his signature at point A. Accused was arrested and personally searched vide memos which is Ex.PW1/E and Ex.PW1/F, bearing his signature at point A. After that, accused was medically examined. Accused was released on police bail by the IO. Case property was deposited in Malkhana.
This witness was duly crossexamined by Ld. Defense Counsel.
7. PW2 is W/Ct. Sumitra, No. 1582, OND, PS Narela. She deposed, that on 17.03.2019, she was posted as W/Constable at PS Swaroop Nagar. On that day, she alongwith HC Ram Sewak went to the spot i.e. near Hightention Line, Gali No.4, Swaroop Nagar, Delhi, where, they met with the Ct. Mukesh. Ct. Mukesh handed over the custody of accused Kamini and recovered liquor to IO. IO requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. Legal notice could not be served to the public persons due to lack of time. Without wasting time, IO checked the kattas and found it containing 105 quarter bottles of illicit liquor. IO took out 1 quarter bottle of illicit liquor as a sample and remaining liquor again was put into the katta. IO sealed the sample quarter bottle and remaining liquor with the seal of SK. After use, IO handed over seal to Ct. Mukesh. IO filled form M29 at the spot. IO seized the liquor, vide memo which is already exhibited as Ex.PW1/A. IO recorded statement of Ct.Mukesh and prepared rukka on the basis of statement of Ct.Mukesh and handed over the same to Ct. Mukesh for registration of FIR No. 78/19 Digitally signed by RICHA SHARMA RICHA State Vs. Kamini SHARMA Date:
2022.01.24 15:56:45 +0530 5 FIR. Accordingly, Ct.Mukesh went to the PS and got registered the present FIR. After registration of FIR, Ct.Mukesh came back to the spot and handed over the copy of FIR and original rukka to IO. IO mentioned the FIR number on the seizure memo and M29 Form. IO prepared site plan on the spot at instance of Ct.Mukesh, which is already exhibited as Ex.PW1/C. IO recorded the disclosure statement of accused, which is already exhibited as Ex.PW1/D. IO arrested the accused Kamini, vide arrest memo, which is Ex.PW1/E. She further deposed, that she conducted personal search of the accused Kamini and IO prepared personal search memo, which is already exhibited as Ex.P1/F. After that, accused was medically examined. Accused was released on police bail by the IO. Case property was deposited in Malkhana.
This witness was duly crossexamined by Ld. Defense Counsel.
8. PW3 is IO/HC Ram Sewak, No. 974/ OND, District Line, Bawana. He deposed, that on 17.03.2019, he was posted as HC at PS Swaroop Nagar. On that day, on receipt of DD No. 41B, which is Ex.PW3/A, he alongwith W/Ct. Sumitra went to the spot i.e. near Hightention Line, Gali No.4, Swaroop Nagar, Delhi, where, they met with the Ct. Mukesh. Ct. Mukesh handed over the custody of accused Kamini and recovered liquor to Ct. Mukesh. He requested 4 to 5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. Legal notice could not be served to the public persons due to lack of time. Without wasting time, he checked the kattas and found it containing 105 quarter bottles of illicit liquor.
He took out 1 quarter bottle of illicit liquor as a sample and remaining liquor again was put into the katta. He sealed the sample quarter bottle and remaining liquor with the seal of SK. After use, he handed over the seal to Ct. Mukesh. He filled form FIR No. 78/19 Digitally signed by RICHA State Vs. Kamini RICHA SHARMA Date:
SHARMA 2022.01.24 15:56:50 +0530 6 M29 at the spot, which is Ex.PW3/B, bearing his signature at point A. He seized the illicit liquor, vide memo which is already exhibited as Ex.PW1/A, bearing his signature at point B. He recorded statement of Ct.Mukesh, which is already exhibited as Ex.PW1/B, bearing his signature at point A and he prepared rukka on the basis of statement of Ct.Mukesh, which is Ex.PW3/C bearing his signature at point A and handed over the same to Ct. Mukesh for registration of FIR. Accordingly, Ct.Mukesh went to the PS and got registered the present FIR. After registration of FIR, Ct.Mukesh came back to the spot and handed over the copy of FIR and original rukka to him.
He further deposed, that he mentioned the FIR number on the seizure memo and M29 Form. He prepared site plan on the spot at instance of Ct.Mukesh, which is already exhibited as Ex.PW1/C, bearing his signature at point A. He recorded the disclosure statement of accused, which is already exhibited as Ex.PW1/D, bearing signature at point B. He arrested accused Kamini, vide arrest memo, which is already exhibited as Ex.PW1/E, bearing his signature at point B. W/Ct. Sumitra conducted personal search of the accused Kamini and he prepared personal search memo, which is already exhibited as Ex.PW1/F, bearing his signature at point B. After that, accused was medically examined. Accused was released on police bail by the IO. Case property was deposited in Malkhana. On 29.04.2019, he sent the sample of case property to Excise Laboratory, ITO. He received the result of sample and he attached the same with the case file. After completion of investigation, he prepared chargesheet and filed the same in the court for trial.
This witness was duly cross examined by Ld. Defence Counsel.
09. After completion of prosecution evidence, statement of accused under Section Digitally signed FIR No. 78/19 by RICHA SHARMA RICHA State Vs. Kamini SHARMA Date:
2022.01.24 15:56:56 +0530 7 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused, to which she denied the allegations made against her and claimed herself to be innocent and pleaded that she has been falsely implicated in this case. Accused denied to lead any evidence in his defence and the same was closed.
10. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and carefully have perused the record.
11. It is argued by the Ld. APP for the state, that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit liquor without permit. It is further stated, that there are ocular and documentary evidence on record to bring home the guilt of the accused.
12. Per contra it is argued by the Ld. Counsel for the accused, that non joinder of public witness despite availability casts a shadow of doubt on prosecution story.
Moreover, alcohol was not recovered from the possession of accused and that she is falsely implicated in present case and that there is no independent evidence against her.
13. It is a cardinal principle of criminal jurisprudence, that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law, that in order to successfully bring home the guilt of the accused, prosecution is suppose to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, Digitally FIR No. 78/19 signed by RICHA RICHA SHARMA State Vs. Kamini SHARMA Date:
2022.01.24 15:57:03 +0530 8 in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
14. In present case prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened at about 09:20 p.m. and it is admitted fact, that public persons were available at the spot, which is evident from the testimony of PW1, who stated in his examination in chief, that IO had requested 45 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. PW1 further stated in his cross examination, that "It is correct that public persons were present at the spot when I reached there".
It was held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
15. In present case, IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility, that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were admittedly present. Even then, the IO failed to join any public witness.
FIR No. 78/19 Digitally signed by State Vs. Kamini RICHA RICHA SHARMA SHARMA Date: 2022.01.24 15:57:09 +0530 9
All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
16. Another material thing which is required to be discussed about the case of prosecution is, that on 17.03.2019, PW1 was on patrolling duty in beat No.2, meaning thereby, that at the relevant time, he was not in the PS and it seems that he was outside the PS, then as per Punjab Rules, he being on duty was required to enter his departure & arrival to & from the PS Swaroop Nagar in the DD register of the said PS. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934: "22.49 Matters to be entered in Register No. IIThe following matters shall, amongst others, be entered:
(c)The hour of arrival and the 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. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. Note: Lines & Police Posts, where Register no.II is maintained.
17. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW 1. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the presence of PW1 at the spot. Hence, it creates doubt in the prosecution story.
Digitally signed by RICHA SHARMARICHA Date: SHARMA 2022.01.24 15:57:16 FIR No. 78/19 +0530 State Vs. Kamini 10
18. In present case, recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, an inference has to be drawn, that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused. In such circumstances fairness of investigation is doubted. Reliance can be placed on the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that "5. 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 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".
19. In present case the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness. In these circumstances, the possibility of tampering of case property cannot be ruled out.
FIR No. 78/19 Digitally signed
by RICHA
State Vs. Kamini
SHARMA
RICHA Date:
SHARMA 2022.01.24
15:57:23
+0530
11
Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
20. In view of the above said description and in the absence of any cogent evidence against the accused Kamini, she is hereby acquitted for offence under section 33/38 Delhi Excise Act. Case property be confiscated to the state as per rules and the same be destroyed. Digitally signed by RICHA SHARMA RICHA Date:
SHARMA 2022.01.24 15:57:29 +0530 (Richa Sharma) Metropolitan Magistrate07 North District Court/Delhi 24.01.2022 FIR No. 78/19 State Vs. Kamini