Delhi District Court
State vs Mangal Singh on 5 July, 2024
IN THE COURT OF MS. EBBANI AGGARWAL,
JUDICIAL MAGISTRATE FIRST CLASS-03, NORTH-WEST,
ROHINI COURTS, DELHI
Cr. Case No. 47/2023
FIR No.: 125/2021
P.S.: Raj Park
State Vs. Mangal Singh
U/s. 33/38 of Delhi Excise Act, 2009
STATE
VERSUS
MANGAL SINGH
S/o Late Sh. Kishor
R/o U-51, Mangolpuri
Raj Park, Delhi
Date of institution of case : 04.01.2023
Date of reserving the judgment : 05.07.2024
Date of pronouncement of judgment : 05.07.2024
JUDGMENT
CNR No. DLNW020481052022
Date of Commission of Offence 10.03.2021
Name of the complainant Ct. Sunny Kumar
Name of the accused Mangal Singh
Offence complained or proved Section 33/38 of Delhi
Excise Act, 2009
Plea of the Accused Pleaded not guilty
Final Order Acquitted
Digitally signed
by EBBANI
EBBANI AGGARWAL
AGGARWAL Date:
2024.07.05
15:58:57 +0530
State vs. Mangal Singh FIR no. 125/2021 P.S. Raj Park Page No. 1 of 8 BRIEF FACTS, COGNIZANCE AND CHARGE
1. Facts, in brief, as alleged by the prosecution are that on 10.03.2021 at about 09:30 PM, near Pankaj Gas Agency, T.U. Block, Mangolpuri Road, Delhi, within the jurisdiction of P.S. Raj Park, accused Mangal Singh was found in possession of illicit liquor for sale in Haryana, without any license or permit.
2. Investigation was carried out and upon completion, the in- stant charge-sheet alleging an offence punishable under Section 33/38 of Delhi Excise Act, 2009 was filed against the accused. Thereafter, cognizance of the offence was taken and the accused was summoned.
3. Upon appearance of accused, copy of charge sheet and an- nexed documents was supplied to the accused in compli- ance of Section 207 of Code of Criminal Procedure, 1973. (hereinafter referred to as "Cr.P.C.")
4. Prima facie case was made out against the accused Mangal Singh and charge for an offence punishable under Section 33/38 of Delhi Excise Act, 2009 was framed against him on 11.01.2024 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for record- ing of prosecution evidence.
5. Statement of accused in terms of Section 294 of Cr.P.C. was recorded wherein the accused admitted the genuineness of FIR no. 125/21 PS Raj Park i.e Ex. A-1, Endorsement on Rukka which is Ex. A-2, Certificate u/s 65-B Indian Evidence Act regarding the aforesaid FIR i.e. State vs. Mangal Singh FIR no. 125/2021 P.S. Raj Park Page No. 2 of 8 Digitally signed by EBBANI EBBANI AGGARWAL AGGARWAL Date: 2024.07.05 15:59:04 +0530 Ex. A-3, GD No. 82 which is Ex. A-4, GD No. 97A which is Ex. A-5 and Excise Result which is Ex. A-6, without admitting the contents of the same.
6. In view of the above, witnesses mentioned at serial no. 3 and 6 in the list of prosecution witnesses were dropped PROSECUTION EVIDENCE
7. In order to substantiate the allegations, the prosecution examined three witnesses, i.e., PW-1 Ct. Sunny Kumar, PW-2 HC Ajay who were part of the patrolling team and PW-3 ASI Rajesh Kumar is the IO who has filed the present chargesheet. PW-1, 2 and 3 have correctly identified the accused as well as case property which is Ex. P-3 (Colly) and have deposed on similar lines as the case of prosecution. Further, PW-1, PW-2 and PW-3 were duly cross-examined by the Ld. Counsel for the accused wherein all the three witnesses have further supported the case of the prosecution.
8. On submissions of Ld. APP for State, witness mentioned at serial no. 5 in list of prosecution witnesses was also dropped and since, no other witness was left to be examined, prosecution evidence was closed on 05.06.2024.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.
9. Statement of accused person in terms of Section 313 Cr.PC. read with Section 281 Cr.P.C. was recorded wherein all the incriminating evidence were put to the accused, to which the accused stated that he has been falsely implicated in this case. Further, the accused person Digitally signed by EBBANI State vs. Mangal Singh FIR no. 125/2021 P.S. Raj Park Page No. 3 of 8 EBBANI AGGARWAL AGGARWAL Date:
2024.07.05 15:59:10 +0530 did not opt to lead defence evidence and the matter was listed for final arguments.
FINAL AGRUMENTS
10. It has been argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has been able to prove beyond reasonable doubt that ac- cused was found in possession of illicit liquor without per- mit and has submitted that accused be convicted of the of- fence charged.
11.Per contra, it has been argued by Ld. Counsel for the ac- cused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. Counsel that non-joinder of pub- lic witness despite availability casts shadow of doubt on prosecution story. It is further argued by Ld. Counsel for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to an in- dependent witness. At the end, it is submitted that the pros- ecution has miserably failed to prove its case beyond rea- sonable doubt and therefore, the accused be acquitted of the alleged offence.
DISCUSSION ON MERITS
12.This Court has carefully perused the case record, has heard arguments advanced by Ld. APP for the state as well as by Ld. Counsel for accused and has carefully gone through the entire material available on record and evidence led on behalf of the prosecution.
Digitally
signed by
EBBANI
EBBANI AGGARWAL
AGGARWAL Date:
2024.07.05
15:59:17
+0530
State vs. Mangal Singh FIR no. 125/2021 P.S. Raj Park Page No. 4 of 8
13.In order to establish commission of offence under Section 33/38 of Delhi Excise Act, 2009, prosecution has to prove possession of illicit liquor, without any licence or permit beyond reasonable doubt. Therefore, short point for determination before this Court is as under:
"Whether on 10.03.2021 at about 09:30 PM, near Pankaj Gas Agency, T.U. Block, Mangolpuri Road, Delhi, within the jurisdiction of P.S. Raj Park, accused Mangal Singh was found in possession of illicit liquor, without any license or permit?"
14.In order to prove the recovery of the illicit liquor from accused, prosecution has relied upon seizure memo and testimony of the three witnesses, who all are police witnesses.
Absence of independent witnesses
15.It is the case of the prosecution that the accused was apprehended and the illicit liquor was recovered from him at around 09:30 PM from a public place and despite that, no independent public person has been made as a witness. This fact makes the manner of conducting of inquiry, seizure and search etc. on the spot of arrest of accused alongwith the alleged recovery of the illicit liquor highly suspicious.
16.With respect to the same, testimony of PW-3/IO is being discussed who has deposed that after apprehension of the accused, public persons were available at the spot. PW-3/IO requested public persons to join the investigation, but all the public persons refused to join the Digitally signed by EBBANI State vs. Mangal Singh FIR no. 125/2021 P.S. Raj Park Page No. 5 of 8 EBBANI AGGARWAL AGGARWAL Date:
2024.07.05 15:59:24 +0530 same and left the spot without disclosing their names and addresses. However, perusal of the record shows that no written notice was served on the public persons by PW-3/IO and in absence of the written notice, explanation given by PW-3/IO cannot be accepted by this Court.
17. In the case of Anoop vs. State, 1992 (2) C.C. Cases 314 (HC), the Hon'ble High Court of Delhi has held under:
"18. It is repeatedly laid down by this Court that 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".
18.In view of the same, a mere statement of non-availability or unwillingness of public person to join as a witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the presence of public witnesses. Therefore, this Court is of the opinion that no sincere efforts have been made by the IO to join public witnesses and non-joining of independent witness casts a doubt on the fairness of the investigation as well as recovery of the illicit liquor from the possession of accused.
Other inconsistencies in the case of prosecution
19.No handing over memo of the seal has been placed on record and it has only been stated that the seal was handed Digitally signed by EBBANI EBBANI AGGARWAL State vs. Mangal Singh FIR no. 125/2021 P.S. Raj Park Page No. 6 of 8 AGGARWAL Date:
2024.07.05 15:59:41 +0530 over to one of the police officials only which further casts doubt as the possibility of tampering with the recovered alleged case property cannot be ruled out in entirety. [Reliance has been placed on judgment passed by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622]
20.Accordingly, the fact of recovery of the alleged case property from the possession of accused persons remains clouded which cast a doubt upon the case of the prosecution and prosecution has not been able to prove the same beyond reasonable doubt.
CONCLUSION
21. It is trite in criminal jurisprudence that in order to bring home a charge against the accused, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt on basis of cogent, convincing and reliable evidence and in case of any doubt, the benefit must necessarily be extended to the accused.
22.In view of the facts and circumstances of the present case, marshalling of evidence placed on record and legal position, this Court is of the opinion that prosecution has not been able to discharge the burden cast upon it beyond reasonable doubt and there are sufficient doubts regarding recovery of alleged case property from accused. Therefore, benefit of doubt should be extended to the accused and accused Mangal Singh S/o Late Sh. Kishor is hereby acquitted for alleged commission of offence under Section 33/38 of Delhi Excise Act, 2009. EBBANI Digitally signed by EBBANI AGGARWAL AGGARWAL Date: 2024.07.05 15:59:48 +0530 State vs. Mangal Singh FIR no. 125/2021 P.S. Raj Park Page No. 7 of 8
23.Case property be confiscated to the State.
24.This judgement contains 8 pages and all pages have been digitally signed by undersigned.
Digitally
signed by
EBBANI
EBBANI AGGARWAL
AGGARWAL Date:
Announced in open Court (EBBANI AGGARWAL) 2024.07.05
on 05.07.2023 JMFC-03, North-West, Rohini, Delhi
15:59:54
+0530
State vs. Mangal Singh FIR no. 125/2021 P.S. Raj Park Page No. 8 of 8