Delhi District Court
State vs . Mohd. Irfan & Anr. on 18 September, 2018
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MAGISTRATE-01 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.77/15
PS Lahori Gate
State Vs. Mohd. Irfan & Anr.
CNR No.DLCT-02-001716/15
JUDGMENT
(a) CIS No. 289892/16
(b) Date of offence 28.03.2015
(c) Complainant ASI Pratap Singh, No. 2635/N, PS Lahori
Gate, Delhi.
(d) Accused 1. Mohd. Irfan S/o. Sh. Shamsuddin R/o.
Village Sakin Bahadur Pur, PS Thakur Ganj,
Panchyan, Dudoti, District Kishan Ganj,
Bihar. Temporary Address:- House No.
583/1, Pusta No. 3 ½ , Kartar Nagar, PS
Usman Pur, Delhi.
2. Ranjeet S/o. Sh. Sat Naryan Prasad
Gupta, R/o. Village Balwa Tola, PS
Dhankoda, District Katihar, Bihar (pleaded
guilty).
(e) Offence 33/47 Delhi Excise Act
(f) Plea of accused Pleaded Not guilty
(g) Date of Institution 08.05.2015
(h) Final Order Acquitted
(i) Date when judgment was 18.09.2018
reserved
(j) Date of judgment 18.09.2018
1. The present FIR was registered at PS Lahori Gate against the accused persons namely Mohd. Irfan and Ranjeet for the offence U/s 33/47 Delhi Excise Act. FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.1 of 15
2. It is pertinent to mention here that accused Ranjeet was convicted and sentenced on pleading guilty vide order dated 03.07.2015.
3. The allegations against the accused are that on 28.03.2015, at about 5:30 pm, near Peeli Kothi, SPM Marg, Lahori Gate, accused Mohd. Irfan along with co-accused Ranjeet (convicted) were found in possession of 24 petties of illicit liquor placed in an auto driven accused Mohd. Irfan without any permit or licence and in contravention of the notification issued by Delhi Administration. According to prosecution, the accused thereby committed offence punishable under Section 33/47 Delhi Excise Act.
4. After completion of the investigation, charge-sheet was filed and both the accused persons were supplied with copies of challan alongwith annexures in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for the offence u/s 33 Delhi Excise Act was put to the accused Mohd. Irfan vide order dated 03.07.2015, to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In order to prove its case, prosecution has examined 4 witnesses.
6. PW-1 is HC Jagan Prasad, who proved registration of present FIR Ex. PW-1/A, endorsement on rukka Ex. PW-1/B and Certificate under Section 65-B of Evidence Act Ex. PW-1/C.
7. In the cross examination PW-1 deposed that Ct. Sandeep reached at police station at about 7:30 am, that he remained at police station till 7:50 am
8. PW-2 is ASI Pratap Singh, who deposed that on 28.03.2015, he was posted as a ASI at PS Lahori Gate, on that day, he was on patrolling duty, that during patrolling Ct. FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.2 of 15 Vipin and Ct. Sandeep met him, that in the meantime, secret informer also met them there, that secret informer told him that illicit liquor was being taken in one TSR bearing no. DL-1RM-6473 from the side of Badarpur via Old Delhi Railway Station, that he constituted a raiding party and asked 3/4 passerby to join the investigation but none agreed and left the place without disclosing their names and addresses, that Secret informer also left the place, that he placed barricades at Peeli Kothi and started checking TSRs, that at about 5:30 am one TSR bearing no. DL-1RM-6473 came from the side of Pulrani Delhi and they stopped it, that they saw that some gatta petties were lying in the rear portion of the TSR and one person was putting his hand on it, that the said person disclosed his name as Ranjit Kumar, that the driver of the TSR disclosed his name as Mohd. Irfan, that they put down the recovered pettis on the ground and checked it, that total petties were 24 in number, that 12 petties were containing 48 quarter bottles each and on each quarter bottle it was written Ginnies Whiskey for sale in Haryana etc., that another 12 petties were containing 50 quarter bottles each and on each quarter bottle it was written cash Santra Orange for sale in Haryana only etc., that total quarter bottles were 1176 in number, that from each petti, two quarter bottles were taken as samples, that he put 4 petties in one katta each and total kattas were six in number and thereafter, he sealed the case property along with the sample with the seal of PS, that seal after use was handed over to CT. Sandeep, that Form M-29 was filled at the spot, that thereafter, he seized the illicit liquor vide seizure memo Ex. PW-2/B, that Form M-29 is Ex. PW-2/C, that he also prepared rukka Ex. PW-2/D and handed over the same to Ct. Sandeep for registration of case, that Ct. Sandeep along with HC Rajnish came at the spot and further investigation was handed over to HC Rajnish, that IO prepared site plan at his instance Ex. PW-2/E. Thereafter, MHC(M) has produced case property i.e. plastic kattas containing four petties each sealed with the seal of PS, that seal has been broken with the permission of the Court and 24 petties have been taken out, that the said petties were containing 1128 quarter bottles (plastic/glass), that witness has correctly identified the case property as Ex. P-
1. MHC(M) also produced TSR bearing no. DL-1RM-6473, that witness has correctly identified the same as Ex. P-2.
FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.3 of 15
9. In the cross examination PW-2 deposed that he had received secret information, that when he stopped the TSR, accused Irfan was driving the vehicle and accused Ranjeet was sitting on the rear seat with 24 petties of illicit liquor. He admitted that near the spot many trucks/transport vehicles were stationed, he asked such truck drivers to join the investigation but they did not agree for the same. He deposed that no written notice was served upon such persons who refused to join the investigation, that no investigation was made regarding the source of the illicit liquor, that Ct. Sandeep left the spot with rukka at about 7:30 am, that he came back at the spot at about 8:45 am, that one another police official Vipin was with them, that the seizure memos were prepared before sending the rukka, that the memos were prepared while sitting at the spot, that the police booth was at at distance of 5-10 paces from the spot where TSR was stopped, that the police station is at the distance of 1/2 km from the spot. He admitted that there is some over writing at point A & B in the seizure memo Ex. PW- 2/A, that there is some over writing at point A of seizure memo of TSR. He deposed that he had not got verified the documents of the TSR in question. He voluntarily deposed that he cannot say whether second IO got verified the documents in question or not. He further deposed that the site plan was prepared at his instance at 9:15 am. He admitted that at that time, public persons was not asked to join the investigation. He deposed that he had left the spot at about 9:15 am. He denied that no recovery was effected as alleged from the accused persons, that accused persons have been falsely implicated in the present case, that all the writing work was done while sitting at PS, that he is deposing falsely.
10. PW-3 is Ct. Sandeep, who deposed that in the intervening night of 27/28.03.2015, he along with constable Vipin was on patrolling duty, that at about 5:00 am, ASI Pratap Singh met them at Pull Mithai, that he told them that secret informer had told him that illicit liquor would be transported in a TSR bearing no. D L-1RM-6473 which is coming from Badarpur, that IO/ASI Pratap Singh asked 3-4 passersby to join the investigation but none agreed and left the place without disclosing their name and addresses, that FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.4 of 15 they put the barricades in front of Pili Kothi, SPM Marg and starting checking the vehicles, that the above said TSR came there from the side of ODRS and they stopped it, that one person was sitting in the rear portion of the said TSR by putting his hand on the petties (cardboard box), that IO made inquiry from the said person who was putting his hand on the said petties, that he did not give any answer, that they checked the said petties and it was found 24 in numbers, that 12 petties were containing quarter bottles of Ginnie and other 12 petties were containing plastic quarter bottles of Cash Santra Masaledar Desi Sharab, that the 12 petties which were containing Ginnie quarter bottles were containing 48 quarter bottles each and the other 12 petties which were containing plastic quarter bottles of Cash Santra Masaledar Desi Sharab 50 plastic quarter bottles each, that total quarter bottles were 1176 in number, that IO took out two quarter bottles from each of the petties for the purpose of sample, that IO put the 12 petties in the three white plastic kattas which were containing Ginni Quarter bottles and they were given serial number from A-1 to A-3, that IO put other 12 petties which were containing plastic quarter bottles in three white plastic kattas and gave them serial number A-4 to A-6, thereafter, kattas along with samples were sealed with the seal of PS, that Form M-29 was filled at the spot, that IO seized the illicit liquor along with the above said TSR vide seizure memo Ex. PW-2/A and Ex. PW-2/B, that seal after use was handed over to him, that thereafter, at about 07:30 am, IO handed over him the rukka and send him for registration of the case, that he got registered the FIR, that further investigation was handed over to HC Rajneesh, that they both came back at the spot, that ASI Pratap told him everything, that HC Rajneesh conducted personal of both the accused persons Irfan and Ranjit Singh (pleded guilty), that IO arrested the accused persons, that same are Ex. PW-3/A to Ex. PW-3/D, that disclosure statement of accused persons are Ex. PW-3/E and Ex. PW-3/F. Thereafter, MHC(M) has produced the TSR bearing no. DL-1RM-6476, that witness has identified the TSR Ex. P-2 and plastic kattas containing petties of illicit liquor are Ex. P-1.
11. In the cross examination, PW-3 deposed that he cannot tell at what time IO received the secret information, that raiding party was constituted in his presence and he along FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.5 of 15 with ASI Pratap and Ct. Vipin were the members of raiding party, that he do not remember whether IO obtained permission from senior officer for constituting raiding party, that no public persons agreed to join the investigation and no written notice was served upon them, that there was moving traffic on the road where TSR was stopped, that the site plan was prepared by HC Rajneesh, that no public person was made witness to the site plan, that IO did not record the statement of any public person in his presence, that he cannot tell the place where IO received the secret information, that they remained at the spot for about 4-5 hours during which proceedings were conducted, that disclosure statements of accused persons were recorded in his presence by HC Rajnish, that he reached at PS with rukka for registration of case at about 7:35 am, that IO conducted personal search of the accused persons at the spot, that all the writing work was done at the spot. He admitted that no public persons were asked to join the investigation at the time of personal search of accused. He denied that all the writing work was done while sitting at PS that is why there is no public persons as witness. He admitted that no public persons was made witness at the time of arrest. He denied that Mohd. Irfan has been falsely implicated in the present case and he has no relation with accused Ranjit who was the actual culprit, that there is no relation of Mohd. Irfan with illicit liquor, that he is deposing falsely, that Mohd. Irfan did not make any disclosure statement and his signatures were obtained on blank papers.
12. PW-4 is ASI Rajnish Kumar, who deposed that on 28.03.2015, he was posted at PS Lahori Gate as HC, that on that day, he was present in the PS and DO handed over him a copy of FIR and original rukka through Ct. Sandeep for conducting further investigation in the present case, that on receiving the FIR and original rukka, he along-with Ct Sandeep went to the spot i.e. Pili Kothi, SPM Marg, Lahori Gate, Delhi where ASI Pratap Singh and Ct. Vipin, was also present along-with two persons along with case property i.e. the illicit liquor and one TSR bearing registration no. DL-1RM- 6473, that ASI Pratap Singh handed over him the case property i.e. TSR and illicit liquor along with the sample duly sealed with the seal of 'PS', seizure memos already Ex.PW2/A and Ex. PW-2/B and form M-29, that ASI Pratap Singh handed over him FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.6 of 15 two persons whose names after interrogations were revealed as Ranjit and Mohd. Irfan, that he prepared the site plan at the instance of ASI Pratap Singh Ex.PW2/E, that after conducting interrogation, he arrested the accused persons Ranjeet and Mohd. Irfan vide arrest memos Ex.PW3/A and Ex. PW-3/B respectively and conducted their personal search vide memos Ex.PW3/D and Ex. PW-3/C respectively, that accused Ranjeet is already convicted on acceptance of his plea of guilt, that he recorded the detailed disclosure statement of accused persons Ranjeet and Irfan Ex. PW-3/F and Ex. PW-3/E respectively, that he seized the documents of TSR bearing registration no. DL-1RM-6473 vide seizure memo Ex. PW-4/A, that he recorded the statement of ASI Pratap Singh and he was discharged from the spot, that he along-with Ct. Sandeep, Ct. Vipin and both the accused persons took the recovered illicit liquor to PS, that the case property was deposited in malkhana of PS and the accused persons were lodged in lock-up of PS after their medical examination, that he recorded statement of other witnesses in the present case, that he gave notice under Section 133 M.V. Act to Mohd. Irfan, Ex. PW-4/B, that in reply to the same, Mohd. Irfan submitted that he is the owner of the aforesaid TSR and was driving the same on the day of incident i.e. 28.03.2018 in the reply Ex. PW-4/C, that on 07.04.2015, he sent the aforesaid samples from malkhana of PS Lahori Gate to excise laboratory, ITO for chemical examination through Ct. Sandeep vide RC No. 21/21/15 dated 07.04.2015 Ex. PA-2, that the receipt of the samples at the Excise Laboratory is mark A to A in Ex. PA-2, that at the time, the samples were sent to excise lab, the same were intact and not tampered with, after some days, he collected the report of chemical examiner Ex. PA-2, that he also obtained verification report of RC of aforesaid TSR from Transport Department, GNCT, Delhi, Ex. PW-4/D, that after completion of investigation, he prepared the challan and filed the same before Hon'ble Court for judicial verdict, that he can identify the case property if shown to him, that case property i.e. illicit liquor is exhibited during the testimony of P-1 (colly) and the TSR is Ex. P-2.
13. In the cross examination, PW-4 deposed that they reached at the spot at about 8:45 am, that his duty hours on that day were from 8:00 am to 8:00 pm, that he received the FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.7 of 15 rukka and copy of FIR at about 8:35 am, that no public witness was examined in presence. He admitted that when he reached at the spot no public person was present there, that he has not seized the case property in the present case, that the same has already been seized by the First IO of the present case, that spot is residential area and public persons were coming and going from there, that no public person was joined by him during the investigation. He voluntarily deposed that none agreed to join the investigation and left the spot without disclosing their names and addresses. He admitted that no notice was served upon the public persons who refused to join the investigation, that no person from the local resident were ask to join the investigation. He deposed that he finally left the spot at about 1:30 pm. He denied that accused persons were not arrested at the spot, that all the investigation were done while sitting at the PS, that he is deposing falsely at the instance of 1 st IO.
14. Perusal of the record reveals that PW/Ct. Vipin was dropped from the list of witnesses vide order dated 02.12.2016 on separate statements of Ld. APP for the State as two witnesses ASI Pratap Singh and Ct. Sandeep had already been examined on the same lines.
15. Vide separate of Ld. APP for the State dated 26.05.2018, witness namely PW Brijender Singh and Mechanical Examiner were dropped from the list of witnesses as accused has admitted the documents i.e. report of Chemical Examiner Ex. PA-1 and road certificate no. 21/21/14 dated 07.04.2015 Ex. PA-2.
STATEMENT OF ACCUSED
16. PE was thereon closed by the Court and statement of accused was recorded u/s 281/313 CrPC vide order dated 04.07.2018, wherein the accused Mohd. Irfan denied all the incriminating evidence against him and stated that he has been falsely implicated in this case. Since, the accused did not wish to lead any defence, hence, matter was fixed for final arguments straightaway.
FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.8 of 15
17. Final arguments heard. File perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
18. In the case in hand the accused Mohd. Irfan is charge for the offence u/s 33/47 Delhi Excise Act.
19. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant/ state in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed as follows:-
20. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. Record shows that PW-2, PW-3 and PW-4 have deposed that the place of apprehension of accused alongwith illicit liquor was a public/residential place and that public persons were requested to join the raiding team but they refused to and no notices were given to the pubic persons who refused to join the investigation. Further, admittedly there some truck driver were also present at the spot and they were asked to join the investigation who did not agree still police officials neither served any notice upon them to initiate prosecution for refusal nor recorded their names or addresses to show that the police officials made bonafide efforts to persuade the public persons to join the investigation.
21. It is apparent from the testimony of PWs that all the proceedings regarding seizure and sealing of case property was done by police officials who were posted in the same FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.9 of 15 police station and not by any independent witness which makes it highly probable that the entire proceeding were conducted at the police station, that the case property was tampered with and that the alleged recovery was planted upon the accused at the police station.
22. The non-joining of public witnesses/residential/truck drivers who were present at the spot are fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses/shopkeeper and no efforts seem to have been made for joining independent witnesses.
23. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
24. 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 place was residential area and one or two persons from the locality could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the public persons had declined to join the raiding party, the police could have later on taken legal action against such persons 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".
25. In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.10 of 15 street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
26. Considering the aforesaid observations made by the Higher Courts, the omissions /failure on the part of investigating agency to join independent public witnesses creates reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
27. Further, PW-2 and PW-3 deposed that they were on patrolling duty on the date of apprehension of accused, however, perusal of the record reveals that there is no such DD entry placed on record to show their arrival and departure from the police station. Prosecution witnesses have failed to prove documentary evidence or the DD entries to show their movement from the police station for patrolling or investigation of the case.
28. Regarding the value of making DD entry it is worth mentioning that as per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under :-
22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
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. 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.
FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.11 of 15 Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 19872 (2) Crimes 29 the Hon'ble Delhi High Court "Wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the court will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly 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."
29. In the preset case, the above said provision appears to have not been complied with by prosecution. These omissions on the part of the prosecution create doubt on the version that the accused was personally searched / arrested with the alleged liquor at the spot by the said PWs.
30. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.12 of 15 crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
31. Furthermore, the testimony of PWs, record and the perusal of rukka shows that the seizure memo Ex. PW-1/A and Form M-29 was prepared prior to the dispatch of the Rukka and registration of the FIR. However, perusal of the said documents clearly shows that the FIR number and other particulars of the present case are mentioned on the said documents. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those documents which were prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
32. Being guided by abovesaid case laws, it can be said that the search, seizure and FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.13 of 15 recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
33. Further, PW-2 categorically admitted in his cross examination that there is some over writing at point A & B inthe seiuzure memo Ex. PW-2/A and there is also some over writing at point A of seizure memo of TSR which creates doubt about the veracity of aforesaid documents.
34. It is pertinent to note that in the case in hand 24 petties of illicit liquor was found from the possession of accused persons despite that no investigation done by the IO regarding the source of liquor for the reasons best known to the investigation agency.
FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.14 of 15
35. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
36. Perusal of record reveals that information about the illicit liquor was given by some secret informer and said secret informer played an important role in initiating the proceedings and for nabbing the accused. However, no plausible explanation has been given for not citing and examining said secret informer as witness in order to prove the case of prosecution for the reasons best known to the investigating agency.
37. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, non joining and examination of independent public witnesses, the prosecution has failed to establish its case against the accused beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Mohd. Irfan stands acquitted of the offence u/s 33/47 Delhi Excise Act accordingly.
38. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
39. File be consigned to the record room after due compliance.
SHILPI Digitally signed
by SHILPI JAIN
Announced and Signed in the Open Court JAIN Date: 2018.09.18
17:02:06 +0530
on 18.09.2018 (Shilpi Jain)
MM-01(Central)/THC/Delhi
18.09.2018
FIR No. 77/15 PS Lahori Gate State Vs. Mohd. Irfan & Anr. Page no.15 of 15