Delhi District Court
State vs . Suraj Fir No. 344/2017 on 13 November, 2019
State vs. Suraj FIR No. 344/2017
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
State vs. Suraj
FIR No. 344/2017
U/sec. 33 Delhi Excise Act
PS: Mundka
Date of institution of the case: 25.09.2018
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 13.11.2019
Unique I. D. No. 7605/2018
JUDGMENT
a) Date of commission of the offence : 11.12.2017
b) Name of the complainant : Head Constable Surender Singh
c) Name of the accused and his parentage : Suraj,
S/o Sh. Mohan,
R/o C-194, JJ Colony, Bawana,
Delhi
d) Offence complained of or proved : Sec. 33 Delhi Excise Act
e) Plea of the accused : Pleaded not guilty
f) Final order : Acquitted
g) Date of such order : 13.11.2019
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State vs. Suraj FIR No. 344/2017
h) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 11.12.2017, Head Constable Surender Singh along with Constable Manbir was patrolling in the area. At around 10:30 p.m., when they reached at the place Mark "A" in the site plan, they saw a person carrying a katta on his head. He, on seeing them, turned around and started walking briskly. Police party chased him and caught him. Katta was checked and it was found containing liquor. Thereafter, Head Constable Surender Singh asked 4-5 passers-by to join the proceedings but none agreed. Therefore, without wasting time, Head Constable Surender Singh seized the liquor after taking sample vide seizure memo Ex. PW2/B, sealed the liquor and sample with the seal of "SJ". Seal after use was handed over to Constable Manbir. Thereafter, he prepared the rukka and sent the tehrir through Head Constable Manbir to the Police Station on the basis whereof present FIR was registered against the accused.
After registration of the FIR, investigation was marked to Head Constable Krishan Kumar, who immediately reached the spot and conducted the further investigation.
After completion of the investigation, charge-sheet was filed before the court. Consequently, accused was summoned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to him as per norms.
Thereafter, charge under section 33 Delhi Excise Act (herein after referred to as the Act) was framed against the accused to which he pleaded not guilty and claimed trial.
Page No.2 of 20State vs. Suraj FIR No. 344/2017 With a view to connect the accused with the crime, the prosecution has examined as many as five witnesses.
PW1/SI Ravinder was the Duty Officer, who had recorded the FIR/Ex. PW1/B. PW2/Head Constable Surender was the complainant as well as the 1 st IO. He testified that on 11.12.2017, he was posted at police station Mundka. On that day, he alongwith Head Constable Manbir were on patrolling duty at Firani road. At about 10.:0 p.m., when they reached near Narela, they saw a man coming from the side of industrial area and holding a Katta. On suspicion, they apprehended him and checked the katta. Katta was found containing 64 quarter bottles of liquor. He asked 4-5 public persons to join the proceedings but they refused. Two quarter bottles were taken out as sample from the Katta. Case property was sealed with the seal of "SJ" and seal after use was handed over to Head Constable Manbir. Form M-29 filled at the spot. Case property was taken into possession vide seizure memo Ex. PW2/A. Thereafter, he prepared the rukka Ex. PW2/B and handed over the same to Head Constable Manbir for registration of FIR. Accordingly, he went to the police station and came back at the spot alongwith Head Constable Krishan, who conducted further investigation. PW2 tasted that he handed over the case property and accused to Head Constable Krishan.
He further stated that accused was arrested vide memo Ex. PW2/C and his personally searched was conducted vide memo Ex. PW2/D. He stated that site plan/Ex. PW2/E was prepared by the IO.
He correctly identified the accused and the sample bottles.
Page No.3 of 20State vs. Suraj FIR No. 344/2017 He during his cross-examination by the learned defence counsel stated that he saw the accused from a distance of 100 meters. He stated that he did not know the accused prior to this case. He denied the suggestion that no recovery was effected from the accused or that he has been falsely implicated in this case or that no public witness was joined in the investigation as he was not present at the spot or that entire proceedings were conducted in the police station.
He stated that he does not remember the DD entry vide which he was on patrolling duty in the area. He stated that he was patrolling on foot and accused was also on foot. He stated that no written notice was served to the persons who refused to join the proceedings. He stated that no handing over memo of seal was prepared by him. He stated that he does not remember when the seal was handed over to him and that who had handed over the seal back to him. He stated that he seized the case property vide memo Ex. PW2/A before registration of the FIR. He stated that he had mentioned the FIR number on the top of Ex. PW2/A after registration of FIR, however, he had not mentioned this fact in his CD. He stated that the samples which were produced during is evidence were not taken in his presence. He stated that Head Constable Manbir took the rukka at about 11:30 p.m., to police station and he came back at about 12:30 a.m. He sated that Head Constable Manbir had gone by a motorcycle. He voluntarily stated that he had taken the motorcycle from the police post. He stated that he did not accompany him to the police post. He stated that the distance between the police station and spot was about 10 kilometers. He denied the suggestion that he was deposing falsely.
Page No.4 of 20State vs. Suraj FIR No. 344/2017 PW3/Head Constable Manbir testified that on 11.12.2017, he alongwith Head Constable Surender was on patrolling in beat no. 5, Mundka, however, he does not remember the departure entry. At about 10:30 p.m., when they reached at Firani Road, near Ganda Nala, they saw a boy coming from the side of Nala with a plastic katta. On seeing the police party, he turned back. They apprehended him as he was found suspicious. Katta was checked and found containing quarter bottles of liquor. IO asked 4-5 persons to join the proceedings but they refused without disclosing their names and addresses. Katta was checked and found containing 32 quarter bottles of Party special and 32 quarter bottles of Santra Masaledar. Two quarter bottles were taken out as sample. Katta and sample bottles were sealed with the seal of SJ. Seal after use was handed over to him. Form M-29 was filled at the spot. Case property was taken into possession vide seizure memo Ex. PW2/A. IO prepared the rukka and handed over the same to him for registration of FIR. Accordingly, he went to the police station and got registered the FIR and thereafter came back at the spot alongwith Head Constable Krishan, who conducted further investigation.
He stated that the accused was arrested vide Ex. PW2/C and personally searched vide Ex. PW2/D. IO also prepared the site plan Ex. PW2/E. Thereafter, he left the spot.
During cross-examination, he stated that he saw accused from a distance of 15-20 feet. He did not know the accused prior to this case. He denied the suggestion that no recovery was effected from the accused or that he has been falsely implicated in Page No.5 of 20 State vs. Suraj FIR No. 344/2017 this case or that no public witness was joined in the investigation as he was not present at the spot or that entire proceedings were conducted in the police station.
He stated that he was patrolling on foot and accused was also on foot. He stated that no written notice was served to the persons who refused to join the proceedings. He stated that seal after use was handing over to him, however, his statement was not recorded regarding handing over the seal to him. He stated that he and Head Constable Krishan got deposited the case property in the malkhana but he does not remember the time. He stated that he does not remember when and where the seal was handed over to Head Constable Surender, however, it was handed over after 1-2 days. His statement was not recorded to this effect by the IO. He stated that he had not made any arrival entry in roznamcha. He stated that he had also not made departure entry on the date of incident.
He stated that no addition or alteration was made in the documents prepared prior to registration of FIR. However, he again said that later on, FIR number was mentioned by Head Constable Surender.
He stated he had gone to police station on his motorcycle bearing no. DL-9S T- 6422 at about 11:30 p.m., and came back at about 12:30 a.m. He stated that on the date of incident, he had parked his motorcycle at a police post at main Rohtak Road at about 6:00-6:30 p.m. He stated that IO had prepared the documents at Firani road on a Chabutra constructed in front of a shop. He stated that Chabutra has not been shown in the site plan. He stated that the distance between the police station and the spot was about 10 kilometers. Head Constable Surender was having Page No.6 of 20 State vs. Suraj FIR No. 344/2017 IO Kit. He stated that Head Constable Krishan informed the family members of accused about his arrest, telephonically. He stated that they went to police booth from where accused was taken to medical examination at Sanjay Gandhi Hospital. He stated that he does not remember when first IO got relieved. He stated that 1 st IO had prepared the seizure memo, Form M -29 in triplicate and rukka. He stated that his statement was recorded by Head Constable Krishan at the police station. Head Constable Krishan had prepared the site plan at the spot in his presence. He stated that Head Constable Krishan had recorded the disclosure statement of accused, prepared arrest and seizure memo. He denied the suggestion that he did not join the investigation or that he had signed all the memos while sitting in the police station or that he was deposing falsely at the instance of IO.
PW4/Head Constable Kishan was the 2nd IO of the case. He testified that on 11.12.2017, Head Constable Manbir had handed over the copy of FIR and original rukka for further investigation. Thereafter, he alongwith Head Constable Manveer went to the spot and met Head Constable Surender and the accused. He prepared the site plan at the instance of Head Constable Surender and interrogated the accused and recorded his disclosure statement/Ex.PW4/A and conducted his personal search vide personal search memo Ex.PW2/D. Thereafter, he alongwith Head Constable Manveer had taken the accused to Sanjay Gandhi hospital for his medical examination. After his medical examination, he came back at police station and lodged the accused in the lockup and deposited the case property in the Malkhana. He stated that next day, accused was produced before the court.
Page No.7 of 20State vs. Suraj FIR No. 344/2017 He further stated that after few days, sample bottles were sent through Constable Amit to Excise Control Laboratory, ITO, Delhi for analyses. He stated that he recorded the statement of witnesses.
However, he could not identify the accused in the court. Therefore, his attention was drawn towards the accused present in the court. However, he stated that he cannot say, if the person present in the court, is the same person who was arrested in the present case with the liquor bottles due to lapse of time.
He during his cross-examination by the learned defence counsel stated that he did not make any DD entry in the roznamcha while leaving the police station for investigation of the present case. He stated that the copy of the FIR and the rukka was handed over to him at about 12:05 a.m., and within 10-15 minutes, they reached at the spot on his personal bike. He stated that Head Constable Surender had handed over him one Form-29, sealed case property, two sample bottles, seizure memo and custody of accused. He stated that he did not make any addition or alteration in the documents prepared by Head Constable Surender. He stated that disclosure statement Ex.PW4/A was in his handwriting. He stated that no public person was present when he reached at the spot. He stated that when they went back to police station, he entered his arrival entry in the roznamcha, however, he does not remember the number. He stated that he had not filed the said DD entry on record alongwith the challan. He stated that the case property was seized with the seal of "SJ". He stated that he does not know when the seal was returned to Head Constable Surender as the same was not returned in his presence. He stated that he recorded the statement of witnesses in the police station. He stated that they Page No.8 of 20 State vs. Suraj FIR No. 344/2017 had gone to hospital in private car, however, he cannot tell its colour, registration number, make etc. He stated that he had deposited the case property in the Malkhana, however, he does not remember the time. He stated that he had prepared the documents while sitting on footpath under the street light. However, when his attention was drawn towards site plan, he admitted that he had not shown the street light in the site plan. He denied the suggestion that he did not conduct the investigation fairly or that case property was planted upon the accused or that he had prepared the documents while sitting in the police station or that nothing was recovered from the possession of accused or that he deposing falsely.
PW5/Constable Amit testified that on 23.04.2018, MHC (M) Praveen had given him two samples sealed with the seal of "SJ" and road certificate for depositing the same at Excise Control Laboratory, IP Estate, Delhi. He stated that after deposited the samples, he handed over the receiving to MHC(M). He stated that till that period samples remained in his custody the same were not tampered with.
He during his cross-examination by the learned defence counsel stated that he did make departure entry in the register, however, he does not remember the number. He stated that he does not remember the time when he left the police station for Excise Control Laboratory. He stated that he also do not remember the time when he came back to the police station. He denied the suggestion that he was deposing falsely.
During trial, accused had admitted the report of Excise Control Laboratory.
Page No.9 of 20State vs. Suraj FIR No. 344/2017 Thereafter, PE was closed and statement of accused under section 313 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code) was recorded to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. He denied the allegations and pleaded false implication.
Thereafter, the matter was posted for final arguments.
I have heard the rival submissions of the learned APP for State and learned defence counsel and perused the material on record very carefully.
Arguments It was argued on behalf of the State that prosecution has proved that accused was found in possession of liquor without any licence. He submitted that in view of section 52 of the Act, onus lies on the accused to rebut the presumption but he failed to rebut the presumption. He therefore, prayed that the accused may be convicted of the charge leveled against him.
Per contra, it was argued on behalf of accused that a false case has been foisted against him and nothing was recovered from the possession of the accused. He submitted that as per the version of the prosecution, PW2/Head Constable Surender and Head Constable Manbir were patrolling in the area when they and apprehended the accused with illicit liquor but no DD Entry regarding the patrolling duty was proved by the prosecution on record.
Page No.10 of 20State vs. Suraj FIR No. 344/2017 He further submitted that all the prosecution witnesses are interested witnesses and there is no independent corroboration to their statements.
In view of the above, he prayed that accused may be acquitted of the charge leveled against him.
Decision and brief reasons for the same The accused is charged for the offence punishable under section 33 of the Act. Section 33 of the Act provides punishment for unlawful import, export, transport, possession, sale etc of any intoxicant. It reads as under:-
Section 33 - Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act-
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or work; any manufactory or warehouse;
(c) bottles any liquor or purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than today or tan;Page No.11 of 20
State vs. Suraj FIR No. 344/2017
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees.
It was argued on behalf of the State that since the accused was found in possession of illicit liquor without any licence, the burden rests on him to dispel the statutory presumption raised under section 52 of the Act.
Per contra, it was argued on behalf of the accused that "presumption" can be invoked against the accused only if the prosecution successfully proves the "recovery" beyond reasonable doubt.
Section 52 of the Act provides for presumption as to commission of offence in certain cases. It reads as under:-
Page No.12 of 20State vs. Suraj FIR No. 344/2017
52. Presumption as to commission of offence in certain cases. - (1) In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
From a bare reading of section 52 of the Act, it is evident that presumption under section 52 could be drawn only if the factum of recovery is proved beyond reasonable doubt.
Now let us see whether the recovery of illicit liquor is proved by the prosecution beyond a reasonable doubt and whether the presumption of offence alleged to have been committed by the accused would arise in this case.
It is the case of prosecution that PW2/Head Constable Surender and PW3/Head Constable Manbir apprehended the accused with illicit liquor while patrolling in the area.
When asked by the learned defence counsel, PW2/Head Constable Surender said he does not remember the DD Entry vide which he was patrolling in the area. Whereas, PW3/Head Constable Manbir stated that he did not make any arrival or departure entry in the roznamcha on that day.
Page No.13 of 20State vs. Suraj FIR No. 344/2017 Whether it is obligatory for a police official to make an arrival or departure entry in the roznamcha?
For deciding the controversy, it would be advantageous to refer to clause (c) of Rule 22.49 Chapter 22 Punjab Police Rules, as applicable to NCT of Delhi, which reads as under:-
(c) 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.
From the reading of the above mentioned rule, it is evident that all police officials irrespective of their rank are bound to record their arrival and departure entry at the time of leaving their office. However, in the present case no such DD entry is placed and proved on record by the prosecution. The Hon'ble Delhi High Court while dealing with a similar situation in the case of Rattan Lal vs. State 32 (1987) DLT 1=1987 (2) Crimes 29 observed as under:
"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach, their action with reservations. The matter has to be viewed with suspicion if the provisions of law Page No.14 of 20 State vs. Suraj FIR No. 344/2017 are not strictly complied with and the least that can be said is that it is so done with an oblique motive."
In view of the above, I am of the considered view that the failure by the prosecution to bring on record the DD entries concerning the departure of the police officials for patrolling duty casts a shadow of doubt on the genuineness of prosecution version regarding recovery of illicit liquor from the possession of the accused.
Next, it is contended by the learned defence counsel that no independent witness was examined by the prosecution and all the prosecution witnesses were police officials, who could conveniently level allegations against the accused, without any shred of objective evidence.
It is settled proposition of law that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency then unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public person was not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in absence of the independent public witnesses.
In Ritesh Chakarvati vs. State 2006(4) RCR (Criminal) 480(SC), no effort was made to join an independent witness despite availability. The names of the persons from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held by the Hon'ble Page No.15 of 20 State vs. Suraj FIR No. 344/2017 Supreme Court of India that the case of the prosecution was doubtful and ultimately, the accused was acquitted.
The principle of law, laid down in Ritesh Chakarvarti's case (supra) is fully applicable to the instant case.
PW2/Head Constable Surender testified that he asked 4-5 persons to join the proceedings but none agreed and left the place without disclosing their names and addresses. When asked if any written notice was served upon those public persons, he answered in negative.
As per prosecution, public persons were available at the spot. Yet no witness from the public has been produced. Thus, failure to join witnesses from the public especially when they are available casts shadow of doubt on the prosecution case.
Next, it was argued on behalf of the accused that the illicit liquor which was allegedly recovered from the possession of the accused was never produced before the court.
In rebuttal, it is submitted by the learned APP for the State that entire case property could not be produced before the court during trial on account of destruction. He drew the attention of the court towards Mark X wherein it is stated that case property has been destroyed as per Rule 132(2) of Chapter -IX of Delhi Excise Rules, 2010. Relevant part reads as under:
"......be destroyed as per Rule 132(2) of Chapter -IX of Delhi Excise Rules, 2010. However, the samples of the confiscated liquor are required to be preserved by the Page No.16 of 20 State vs. Suraj FIR No. 344/2017 Investigating Officer and the SHO of the police station to meet the evidentiary requirements as provided under section 60 of the Delhi Excise Act, 2009..."
Section 60 of the Act provides for destruction of the intoxicants. It reads as under:-
60. Order of confiscation and destruction not to interfere with other punishment (1) The order of confiscation under section 58 shall not prevent imposition of any other punishment to which a person is liable under this Act.
(2) Notwithstanding anything contained in any other law for the time being in force, the disposal of confiscated goods in the manner, thereby non-production of case property before the trial court, shall not affect the conviction for an offence under this Act:
PROVIDED that the samples of the intoxicants and the photographs of the confiscated property may be preserved to meet the evidentiary requirements.
The Hon'ble High Court of Delhi in the case of Manjeet Singh vs. State decided on 10th September, 2014 held as under:-
"Liquor and narcotic drugs Page No.17 of 20 State vs. Suraj FIR No. 344/2017
74. Prompt action should be taken in disposing of the liquor bottles/pouches and narcotic drugs after prepar- ing a detailed panchnama containing an inventory; re- taining a sample thereof; taking photographs of the en- tire lot of seized bottles/pouches/narcotic drugs and se- curity bond. The sample shall be kept properly after sending it to the chemical analyst, if required.
75. The sample along with the photographs of the case property and the panchnama would be sufficient evi- dence at the stage of trial."
In the case in hand, as per prosecution, case property has been destroyed vide Mark X. However, during the trial, two liquor bottles were produced for the purpose of identification. The said bottles were sealed with the seal of "PK". This piece of evidence was in stark contradiction to the evidence of PW2 who testified that the case property was sealed with the seal of "SJ". Thus, it was the duty of the prosecution to explain this contradiction regarding the seal. However, the prosecution has failed in its bounden duty to explain as to whose seal was affixed on the samples bottles which were produced during the course of trial for the purpose of identification.
Further, PW2/Ist IO identified Ex.P1 and P2 i.e. the sample bottles as the same which were recovered from the possession of accused, however, during cross- examination, he testified that the sample bottles i.e. Ex.P1 and P2 were not taken in his presence.
Page No.18 of 20State vs. Suraj FIR No. 344/2017 Furthermore, neither the panchnama nor the photographs of the entire lot of seized bottles were produced at the stage of trial. Only one photograph Mark Y was produced during the course of trial by the MHC (M) from which nothing can be deciphered. The said photograph is of a bag. However, by seeing the photograph, no one can tell as to what is inside the sealed bag/katta.
Thus, it cannot be held beyond reasonable doubt that the sample bottles which were produced before the Court during evidence were the same which were allegedly recovered from the possession of the accused and whose sample was sent to laboratory for examination.
All these facts taken together are sufficient to demolish the prosecution case of recovery.
Another fact which creates doubt on the genuineness of the prosecution case is that PW2/1st Investigating Officer after sealing the sample in the first instance handed it over to 2nd IO, who in turn handed over it the MHC (M), who in turn handed it over to Constable Amit, who deposited the sample in the Excise Laboratory, New Delhi. However, neither the 1st IO not the 2nd IO stated in their deposition that the sample was not tampered with so long as it remained in their custody.
In these circumstances, I am clearly of the view that the prosecution has failed to prove this link evidence to show that the sample parcel was not tampered with by anyone before it was examined at Excise Control Laboratory, New Delhi and the benefit of the same must go to the accused.
Result
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State vs. Suraj FIR No. 344/2017
On overall appreciation of the oral and documentary evidence on record, I am of the view that the recovery of alleged liquor from the possession of accused is not proved beyond reasonable doubt; therefore, there is no presumption under section 52 of the Act.
Consequently, accused SURAJ is ACQUITTED of the crime charged.
File be consigned to record room after due compliance.
Announced in open Court on 13th day of November, 2019 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/13.11.2019 Digitally This judgment contains 20 pages and each page bears my signature. BABITA signed by BABITA PUNIYA PUNIYA Date:
2019.11.13 15:04:11 +0530 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/13.11.2019 Page No.20 of 20