Delhi District Court
16. In The Case Of "Massa Singh vs . State Of Punjab" 2000(2) C.C. on 10 October, 2019
IN THE COURT OF SHRI ABHISHEK KUMAR,
METROPOLITAN MAGISTRATE : WEST-05,
TIS HAZARI COURTS, DELHI
FIR No. : 152/2014
P.S. : Anand Parbat
Case No. 60191/2016
State
v.
Manju, W/o Sh. Anil,
R/o House No. 753/3, Baba Fareedpuri,
West Patel Nagar, Anand Parbat, Delhi.
Date of institution of case : 23.03.2015
Date of reserving the judgment : 04.10.2019
Date of pronouncement of judgment : 10.10.2019
JUDGMENT
1. S. No. of the Case: 60191/2016
2. Date of Commission of Offence: 05.04.2014
3. Date of institution of the case: 23.03.2015
4. Name of the Informant: W/ASI Kiran Sethi
5. Name of the accused : Manju
6.Offence complained or proved: 33 Delhi Excise Act
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7. Plea of Accused: "Not Guilty"
8. Final Order: Acquitted
9. Date of Final Order: 10.10.2019
BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly, the facts of the case as per prosecution are that on 05.04.2014 at about 10:45 A.M. in front of House No. 753/3, Baba Fareedpuri, West Patel Nagar, Anand Parbat, Delhi, accused was found in possession of 02 plastic bags containing 94 quarter bottles in one plastic bag and 54 quarter bottles in another bag as per the seizure memo Ex.PW3/A without any permit or license. The present FIR was registered against the accused and after the completion of the investigation, the chargesheet was filed before the Court on 23.03.2015. The cognizance of the offence was taken and summons were issued to the accused. The copy of the charge-sheet and the documents in compliance of Section 207 CrPC were supplied to the accused.
2. The charge was framed against the accused for offence punishable under Section 33 Delhi Excise Act on 18.02.2016 to which she pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the prosecution evidence.
3. In prosecution evidence, the prosecution has examined 07 witnesses.
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The FIR alongwith report of the chemical examiner were admitted under Section 294 CrPC. The testimony of the witnesses in a nutshell are as below:
PW1 W/Const. Sangeeta: The witness deposed that on 05.04.2014, she joined the investigation alongwith HC Mukesh and SI Deepak and went to House No. 753/3, Baba Fareedpuri and met W/ASI Kiran Sethi who handed over seizure memo and seized liquor in sealed condition and accused to SI Deepak. Thereafter, SI Deepak prepared the site plan at the instance of W/ASI Kiran Sethi and arrested the accused vide arrest memo Ex.PW1/A and personal search was conducted vide search memo Ex.PW1/B. PW2 ASI Vijender Singh: The witness deposed that the HC Mukesh deposited the case property in the malkhana and he made the entry in register No. 19 at serial No. 1987.
PW3 ASI Kiran Sethi: The witness deposed that on 05.04.2014, she alongwith HC Mukesh were on patrolling duty and when they reached main road of Baba Fareedpuri, they met one FIR No. 152/14 State v. Manju 3 of 13 PS Anand Parbat secret informer who told them that one lady can be caught at some distance with illicit liquor. Thereafter, they went to that place and saw the accused shifting the liquor inside her house and asked many public persons to join the investigation but none of them agreed and left the spot. She formed a raiding party immediately with HC Mukesh and reached near Shiv Mandir and apprehended the accused who was found in the possession of two plastic kattas which were containing 148 quarter bottles of illicit liquor. She seized the liquor vide seizure memo Ex.PW3/A and prepared the rukka Ex.PW3/B and sent HC Mukesh for the registration of the FIR who came alongwith IO SI Deepak and W/Const. Sangeeta alongwith the FIR.
PW4 HC Raja Rao: The witness deposed that on 11.11.2014, he collected two sample quarter bottles with form No. M-29 and deposited the same in the Excise Lab at ITO vide RC No. 116/21/14.
PW5 SI Deepak Singh: The witness deposed that on 05.04.2014, HC Mukesh handed over FIR No. 152/14 State v. Manju 4 of 13 PS Anand Parbat one tehreer and copy of FIR for further investigation and he went to the spot with him and W/Const. Sangeeta. There he met W/ASI Kiran Sethi who handed over the case property, seizure memo, other documents and the accused to him. He prepared the site plan. Thereafter, he arrested the accused.
PW6 HC Mukesh: The witness deposed that on 05.04.2014, he was on patrolling duty with ASI Kiran Sethi and they met a secret informer at main road of Baba Fareedpuri, who informed about a lady having illicit liquor and then they went to the said place and found the accused in the possession of two plastic kattas containing 148 quarter bottles of illicit liquor. Thereafter, he was sent to police station to bring the seal and he brought the same i.e. "APRVT-II". Thereafter, the seal was handed over to him after use. He also took the tehreer to the police station and got the FIR registered and came back to the spot alongwith SI Deepak and W/Const. Sangeeta.
The accused was arrested in his presence.
PW7 ASI Brij Lal: The witness deposed that n
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05.04.2014, he has received secret information regarding the sale of illicit liquor at House No. 753/3 and he reached there and found W/ASI Kiran Sethi and HC Mukesh present there alongwith the illicit liquor. Proceedings were conducted by W/ASI Kiran Sethi in his presence.
4. After the prosecution evidence was closed, the matter was kept for the statement of the accused. The same was recorded on 06.09.2019. The accused did not lead the defence evidence. Thereafter, the final arguments were heard and matter was kept for orders. I have given thoughtful consideration to the submissions of the accused and the State.
5. Before proceeding further, it will be pertinent to go through the Section 33 of the Delhi Excise Act, 2009 with which the accused has been charged in the present case which is as follows:-
33 Delhi Excise Act, 2009. 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 license, permit or pass, granted under this Act -
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale;
(d) uses, keeps or has in his possession any material, still FIR No. 152/14 State v. Manju 6 of 13 PS Anand Parbat utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari;
(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 which may extend to one lakh rupees.
6. In the present case, the prosecution has alleged that the police officials of PS Anand Parbat recovered illicit liquor on 05.04.2014 outside House No. 753/3, Baba Fareedpuri from the possession of the accused and the act of the accused violated the provision of Section 33 (F). Thus, the prosecution was obliged to prove that the accused was found in the possession of intoxicant beyond the permissible limits without any license or permit.
7. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It has to be seen whether the prosecution had been able to FIR No. 152/14 State v. Manju 7 of 13 PS Anand Parbat establish the guilt of the accused beyond reasonable doubt.
8. In the present case, the registration of the FIR and the report of the chemical examiner is not in dispute as the same were admitted by the accused under Section 294 CrPC. The alleged recovery as shown by the prosecution with regard to the liquor and the fact that the bottles which were seized containing the liquor has been established on the basis of sample sent to the Lab and the report has been admitted by the accused under Section 294 CrPC which is Ex.AD-3. The amount of the bottles shown to have been recovered are 148 quarter bottles and the same are beyond the permissible limits as per the Delhi Excise Act. Therefore, the only thing left to be proved beyond reasonable doubt is the fact that the illicit liquor as stated above was recovered from the possession of the accused.
9. The counsel for the accused has argued that the most important ingredients to establish the offence under section 33 Delhi Excise Act is the possession of illicit liquor and the prosecution has failed to establish that the illicit liquor as mentioned in the seizure memo was recovered from the possession of the accused as there are no public witnesses who were joined in the investigation by the investigating agency and there is no notice that is the part of the record to show the efforts on the part of the officers to join the public witnesses in the investigation. Further, there are no departure entries brought on record to show that the witnesses were on patrolling duty and there is no entry with regard to the FIR No. 152/14 State v. Manju 8 of 13 PS Anand Parbat issuance of the seal by which the illicit liquor was sealed and seized. There are many contradictions in the testimony of the recovery witnesses which makes the case of the prosecution doubtful.
10. On the other hand, the Ld. APP for the State has argued that the prosecution has succeeded in establishing the case against the accused as all the witnesses have correctly identified the accused as the person from whose possession the illicit liquor was recovered.
11. In the present case, PW3 W/ASI Kiran Sethi and PW6 HC Mukesh are the material / recovery witnesses. Both the witnesses have stated that they were on patrolling duty and they had met a secret informer at main road of Baba Fareedpuri and thereafter, they went to the place as stated by the secret informer and found the accused shifting the liquor inside her house. PW3 has stated that she has seized the illicit liquor before sending rukka to the police station. PW6 has stated that he went to the PS Anand Parbat to bring the seal and came back at the spot alongwith the government seal i.e. "APRVT-II" and handed over the same to PW1. Both the witnesses have not stated about the departure entry by which they left for patrolling duty. The prosecution has also failed to bring the same on record. Further, there is no entry to show that HC Mukesh got the government seal issued and brought the same to the place of spot and deposited it back in the police station. Both the witnesses did not state any time at which they have received the information from the secret informer. Making daily diary entry is very important aspect of the police FIR No. 152/14 State v. Manju 9 of 13 PS Anand Parbat working. It is required to show that a particular official had left the police station for investigation or any other official work. The absence of the same casts doubt with regard to the departure of the police officials. Further, the seal by which the case property was sealed also remains in the police station and it is expected that the same shall be issued through a proper mechanism by making entries and the said entries have to be placed on record in order to show that it was issued on a particular day and time and was taken out of the police station. It is also required to show that there is no tampering with the case property at any point of time or that the case property was sealed at the place as stated by the police officials. Absence of the same, makes the claim of the police officials doubtful. Both the witnesses in their examination in chief did not state at what time they reached the house of the accused and also at what time the secret informer left. Further, there is a material discrepancy in the statements of the witnesses as PW3 has never stated that PW7 ASI Brij Lal had come on the spot but PW6 has stated that he also reached the spot when the accused was apprehended by them. Perusal of the statement of PW7 shows that he reached the spot upon receiving a secret information that one lady is selling illicit liquor at House No. 753/3. The said witness also did not state about the time when he received the secret information. The information received by PW3 and PW7 are different.
12. It has been stated by the witnesses PW3 and PW6 that they have asked some public persons to join the investigation before raiding the FIR No. 152/14 State v. Manju 10 of 13 PS Anand Parbat accused at the spot. But none of the public persons joined the investigation. It has not been stated by the witnesses as to how many persons they have asked to join the investigation and in what duration they raided the accused after they reached the spot which makes the claim of the PW3 doubtful as to whether she asked any public witness to join the investigation. The testimony of the recovery witnesses are silent with regard to the joining of the witnesses at the time of recovery of the illicit liquor and preparation of the seizure memo. Though it is not essential always to join the public witnesses and the testimony of the police officials can be relied upon but when there are contradictions / discrepancies in their testimonies, it becomes pertinent that their testimony shall be corroborated through independent witnesses.
13. There is no explanation as to how the FIR number has been mentioned on the site plan and the seizure memo as these documents were prepared before the registration of the FIR. It has never been stated by the IO of the case PW5 SI Deepak that the same were mentioned by him at a later point of time. Further, there is a contradiction between the testimony of PW3 and PW5 as PW3 has stated that she has prepared the site plan before sending the rukka to the police station and on the other hand PW5 has stated that he prepared the site plan when he reached the spot after getting the FIR for further investigation. These documents becomes doubtful with regard to the place where they were prepared.
14. The personal search memo of the accused is also doubtful as it has FIR No. 152/14 State v. Manju 11 of 13 PS Anand Parbat been stated by PW1 W/Const. Sangeeta that she has conducted the personal search of the accused inside the room but she could not tell about the description of the place and the room in which she carried the personal search.
15. The case of the prosecution is suffering from material defects and there are some serious discrepancies found in the testimony of recovery witnesses. In these circumstances, it was necessary on the part of the IO to have joined some independent witnesses to the recovery and in the absence of the same, the version put forth by the prosecution is not reliable. The prosecution could not prove that the alleged illicit liquor was recovered from the possession of the accused.
16. In the case of "Massa Singh Vs. State of Punjab" 2000(2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under : "The recovery has been effected from a public place. The investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
17. In the case of "Chana Singh Vs. State" 1986 Crl. Rev. No. 720 FIR No. 152/14 State v. Manju 12 of 13 PS Anand Parbat (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as and afterthought.
18. In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
19. In the light of the above discussion, the prosecution has failed to establish beyond reasonable doubts, the fact that the accused was found in the possession of the illicit liquor as seized by PW3. The evidence brought on record is insufficient to convict the accused. Accordingly, the benefit of doubt has to be given to the accused and the accused Manju stands acquitted for the offence under section 33 Delhi Excise Act, 2009.
20. Accused is directed to furnish Personal Bonds under section 437A of CrPC in the sum of Rs.10,000/- which would remain valid for a period of six months.
Digitally signed by ABHISHEK ABHISHEK KUMAR
KUMAR Date: 2019.10.15
16:15:06 +0530
Announced in open Court (ABHISHEK KUMAR)
on 10th day of October 2019 Metropolitan Magistrate
West-05, Delhi
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