Delhi District Court
State vs . Raj Kumari on 26 April, 2023
IN THE COURT OF SH. ANUBHAV JAIN, ADITIONAL CHIEF
METROPOLITAN MAGISTRATE, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
FIR No. 01/2020
PS - Anand Vihar
U/s 33 Delhi Excise Act
State Vs. Raj Kumari
JUDGMENT
A. SL. NO. OF THE CASE : 4250/2021
B. DATE OF INSTITUTION : : 02.09.2021
C. DATE OF OFFENCE : 01.01.2020
D. NAME OF THE : Head Constable Kaptan Singh
COMPLAINANT
E. NAME OF THE ACCUSED : Raj Kumari w/o Late Sh. Khushipal
F. OFFENCE : U/s 33 Delhi Excise Act
COMPLAINED OF
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquitted
I. DATE OF FINAL ORDER : 26.04.2023
FIR no. 01/2020 State vs. Raj Kumari Page 1 of 8
Brief Statement of Reasons for Decision :
1. Present accused person is produced before the court to stand trial for the offence punishable u/s 33 Delhi Excise Act, 2009.
2. In brief, it is the case of the prosecution that on 01.01.2020, HC Kaptan along with Ct. Pushpender and Ct. Arun were on patrolling duty vide DD No. 25B and while patrolling at JJ Camp, Anand Vihar at about 6 PM, while they were passing through Jhuggi, they saw a woman was selling illicit liquor by placing the liquor in white plastic katta under a tree. It is further stated that upon enquiry the said female revealed her name as Raj Kumari and police officials apprehended the said female and further called at PS. Furthermore, some public persons were asked to join the investigation, however none has joined the investigation and leave the spot without disclosing their names.
Thereafter, HC Kaptan checked the said plastic katta and found 96 quarter bottles in each carton labelled as "Crazy Romeo Whiskey for sale in Arunachal Pradesh". Thereafter, he took out two quarter bottles from plastic katta as sample and sealed them with the seal of KS, filled Form M-29 and after use, hand over the seal to Ct. Pushpender. Further, Ct. Arun was sent to police station for registration of FIR. Further, HC Kaptan prepared the seizure memo.
After registration of FIR, Ct. Arun returned back at the spot along with ASI Shripal. During the course of investigation, HC Kaptan prepared the site plan and accused was released on police bail. IO further recorded the statement of witnesses and case property was deposited in Malkhana. After completion of Investigation, IO filed the charge-sheet against the accused Raj Kumari for the offence punishable u/s 33 Delhi Excise Act.
3. Accused appeared before the court on 21.07.2022 and copy of charge-sheet was supplied to her u/s 207 Cr.P.C and on the same day, accused was charged u/s 33 Excise Act by Ld. Predecessor court to which the accused pleaded not guilty and claimed trial.
4. Prosecution in order to prove its case has examined the following witnesses:-
FIR no. 01/2020 State vs. Raj Kumari Page 2 of 8PW-1/HC Kaptan deposed that on 01.01.2020, he along with Ct. Pushpinder and Ct. Arun were on patrolling duty and when they were passing by the jhuggis, one woman who was sitting near the tree (Bar ka per) was having some material in the white plastic sack. On suspicion, he checked the sack and found 96 quarter bottles of illicit liquor in the sack. He further deposed that he requested 04-05 public persons to join the investigation but they all refused to join the same and left the place without disclosing their names and addresses. He further deposed that thereafter, he inquired her name and address, who disclosed her name as Raj Kumari. He further deposed that he took two bottles as sample and same were seized in separate white pullanda and sealed with the seal of KS and remaining 94 quarter bottles were put in a white sack & the mouth of the sack was sealed and sealed with the seal of KS. He further deposed that Form M-29 was also filled up by him. He prepared the seizure memo Ex. PW1/A and seal after use was handed over to Ct. Pushpinmder. He further deposed that he prepared the tehrir & rukka Ex. PW1/B and same was handed over to Ct. Arun for registration of FIR and after registration of FIR, Ct. Arun along with ASI Shri Pal came back to the spot. He further deposed that he prepared the site plan Ex. PWI/C. Witness correctly identified the accused as well as the case property in the court.
PW-2/ASI Shripal deposed that on 01.01.2020, he received copy of the FIR along with Rukka for further investigation from the DO. He further deposed that he along with Ct. Arun went to the spot where, HC Kaptan Singh alongwith Ct. Pushpender and accused were present. HC Kaptan Singh briefed him about the case and produced case property in sealed condition. Witness correctly identified the accused in the court.
PW-3/HC Arun reiterated the facts as stated by PW-1 during the course of his testimony and same is not being reiterated herewith for the sake of brevity. PW-3 proved the seizure Memo Ex. PW1/A. Witness correctly identified the accused in the court. During cross-examination of Ld. APP, witness deposed that his statement was recorded by HC Kaptan Singh and he does not remember whether ASI Shripal recorded his statement or not.FIR no. 01/2020 State vs. Raj Kumari Page 3 of 8
PW-4/ASI Rajeev deposed that on 10.08.2020, the investigation of the present case was marked to him and he received the case from MHCR. He deposed that he received FSL result from the FSL and after completion of investigation, he prepared the charge sheet and submitted before the court.
PW-5/HC Pushpender reiterated the facts as stated by PW-1 during the course of his testimony and same is not being reiterated herewith for the sake of brevity. PW-5 proved the seizure memo Ex. PW1/A. Witness correctly identified the case property in the court.
5. Further, on 01.10.2022, vide statement U/s 294 Cr.PC, accused admitted FIR of the present case, certificate u/s 65-B of Indian Evidence Act, DD No. 25B, GD No. 041A and Chemical Inspection Report vide Ex. A-1, Ex. A-2, Ex. A-3, Ex A-4 and Ex. A-5 respectively.
6. After completion of prosecution evidence, statement of accused u/s. 313 Cr.P.C was recorded on 12.04.2023 wherein accused stated that she is falsely implicated in the present case. She did not avail the opportunity to lead defence evidence and the matter was fixed for final arguments.
7. It is argued by Ld. APP for the State that the recovery of the illicit liquor has been effected from the accused. It is further argued that as per the Excise Report, it is proved that the property so recovered from the accused is liquor. It is further argued that the prosecution has able to prove its case beyond reasonable doubt and accused is liable to be convicted for the offence she is charged for.
8. On the other hand, it is contended by Ld. counsel for accused that nothing was recovered from his possession and she has been falsely implicated in the present case and she is innocent. It is further contended that all the prosecution witnesses examined are police witnesses and no independent public witness has been joined and all the writing work was done in the police station.
FIR no. 01/2020 State vs. Raj Kumari Page 4 of 89. I have heard the arguments of the Ld. counsel for accused and Ld. APP for State and perused the file carefully.
10. It is settled proposition of criminal law that burden lies upon prosecution to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit from the weaknesses, if any, in the defence of the accused.
11. It is the case of the prosecution that on 01.01.2020, HC Kaptan Singh along with Ct. Pushpender and Ct. Arun were on patrolling duty, they found accused Raj Kumari in possession of white plastic katta of illicit liquor each having 48 quarter bottles.
12. It is pertinent to note that Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:
22.49. Matters to be entered in Register No.II- The following matters shall, amongst others, be entered:-
(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.
Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
13. It is pertinent to state here in that no such departure entry has been placed on record by the prosecution in order to show or prove that HC Kaptan Singh along with Ct. Pushpender and Ct. Arun were on patrolling duty at JJ Camp, Anand Vihar on the alleged date and time.
14. It is further pertinent to state here in that as per the testimony of the witnesses, FIR no. 01/2020 State vs. Raj Kumari Page 5 of 8 the property was seized prior to registration of FIR, however the seizure memo of the case property bears the FIR Number. Hon'ble High Court of Delhi in Pradeep Saini v. State 2009SCC OnLine Del2803 has observed that:-
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution the sketch Ex.PW-3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW-2/B. Surprisingly, sketch Ex.PW-3/D of the knife contains the number of the FIR registered in the present case.
The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW-2/B has appeared on the document, which was allegedly prepared before registration of the FIR. This gives rise to two inferences; either the FIR Ex. PW-2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said document 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 knife in the manner alleged by the prosecution.
There is no explanation on the part of prosecution as to how the seizure memo bears the FIR number. The said facts raises grave doubt upon the story of prosecution.
15. It is further pertinent to state here in that as per story of prosecution accused was apprehended from public place however no public witness has been joined them by the IO. The fact that the seizure and recovery memo of the case property bears the FIR number and further no DD entry is placed on record to show that abovesaid police official were on patrolling duty on abovesaid date, time and place, the same has already raised reasonable suspicion upon the case of the prosecution. In such circumstances it was incumbent upon the IO to join any public witness in order to prove the recovery from the accused. Hon'ble High Court in Delhi In Surender @ Dheeraj v. State 2018 SCC OnLine Del 7506, it was observed by Hon'ble High Court of Delhi :
77.The arrests of the accused were all in public places and yet none of the arrests were in the presence of independent public witnesses. Parrot-like statements to the effect that passersby were FIR no. 01/2020 State vs. Raj Kumari Page 6 of 8 asked but declined to join are given by the IOs in the present case. This does not convince the Court. In Kehar Singh v. State (1988) 3 SCC 609 : AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this contention, the Supreme Court observed:
"It may be as technically argued by the learned Additional Solicitor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal Search. But it is well-known that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of this accused is no other evidence except the evidence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution."
78.In the present case every arrest is on the basis of both information provided by and identification by a secret informer who is not produced as a PW. Most arrests have taken place from open public places and during times when there is a lot of movement of the public. It is therefore difficult to accept that in every such instance, no independent witness was available. The circumstance of arrest has not been convincingly proved by the prosecution.
16. In light of the above-said facts that:-
FIR no. 01/2020 State vs. Raj Kumari Page 7 of 8(a) No DD entry is placed on record to show that HC Kaptan Singh was on patrolling duty on the alleged date and time;
(b) Seizure memo bears FIR number;
(c) No independent eye-witness was made to join the investigation;
The prosecution has failed to prove its case against accused beyond reasonable doubt. Hence, accused Raj Kumari is acquitted for the offence punishable Digitally signed by U/s 33 of Delhi Excise Act. ANUBHAV ANUBHAV JAIN JAIN Date: 2023.04.26 17:20:14 +0530 Announced in the Open Court (ANUBHAV JAIN) on dated 26 th April, 2023 ACMM/SHAHDARA DISTRICT/ KARKARDOOMA COURTS/ DELHI/26.04.2023 Present judgment consists of 08 pages and each page bears my signatures.Digitally signed by
ANUBHAV ANUBHAV JAIN
JAIN Date: 2023.04.26
17:20:21 +0530
Announced in the Open Court (ANUBHAV JAIN)
on dated 26 th April, 2023 ACMM/SHAHDARA DISTRICT/
KARKARDOOMA COURTS/
DELHI/26.04.2023
FIR no. 01/2020 State vs. Raj Kumari Page 8 of 8