Delhi District Court
South-West District vs . on 21 May, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE- 05,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Sita Devi
FIR No. 263/12
Police Station : Dwarka North
Under Section: 33 Delhi Excise Act
Unique Case ID Number: 02405R0093172013
Date of institution : 20.03.2013
Date of reserving : 20.05.2014
Date of pronouncement: 21.05.2014
JUDGMENT
a) Serial number of the case : 51/6/14
b) Date of commission of : 03.11.2012 offence
c) Name of the complainant : Head Constable Khem Chand
d) Name, parentage and : Sita Devi, address of the accused W/o Late Sh. Kanha Ram, R/o A-58, Chandra Park, Kakrola, New Delhi.
e) Offence complained of : Section 33 Delhi Excise Act, 2009
f) Plea of the accused : Accused pleaded not guilty
g) Final order : Accused stands convicted for the offences punishable under Section 33(a) and Section 33(f) of the Delhi Excise Act, 2009 State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 1 of 17
h) Date of final order : 21.05.2014 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused Sita Devi is being convicted for the offences punishable under Section 33 (f) of the Delhi Excise Act, 2009 (hereinafter referred to as 'Act') read with Rule 20 of the Delhi Excise Rules, 2010 (hereinafter referred to as 'Rules') and Section 33
(a) of the Act read with Rule 11 of the Rules in this case FIR No. 263/13 police station Dwarka North for the reasons mentioned below.
CASE OF PROSECUTION
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 03.11.2012 at about 09.35 p.m. at Old Palam Road, Near MLA Office, Kakrola, New Delhi, within the jurisdiction of police station Dwarka North, while Head Constable Khem Chand along with Constable Bijender were on patrolling duty, on receipt of a secret information, they stopped accused Sita Devi, who was carrying a sack on her head. The prosecution has alleged that on checking, the sack was found to be containing 41 quarter bottles of ''Besto whisky meant for Sale in Chandigarh'' and 62 quarter bottles of ''Narangi Masaledar Desi Sharab''. As per the prosecution case, Head Constable Khem Chand took out two sample quarter bottles each and sealed the sample quarter bottles and the remaining bottles in the same sack with the seal of KC. As per the version of the prosecution, the case property State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 2 of 17 was seized vide seizure memo Ex.PW1/A, Head Constable Khem Chand prepared the tehrir and got the case registered, and thereafter, further investigation was marked to Sub Inspector Nanag Ram, who also reached the spot, arrested the accused in the present case and conducted further investigation.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was filed. The copies of the police report and annexed documents were supplied to the accused in due compliance of Section 207 Cr.P.C.
4. The case was received by way of transfer by this Court on 20.01.2014.
CHARGE
5. Vide order dated 09.05.2013 passed by the learned predecessor of this Court, charge for the offences punishable under Section 33 (f) Delhi Excise Act read with Rule 20 of the Delhi Excise Rules, 2010 and Section 33 (a) Delhi Excise Act read with Rule 11 of the Delhi Excise Rules was framed against accused Sita Devi, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
6. Vide order dated 21.04.2014, in compliance with the provisions of Section 294 of the Cr.P.C., the accused Sita Devi was called upon State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 3 of 17 to admit or deny the genuineness of Excise report No. 19309 to 19312 dated 20.11.2012, Road Certificate No. 1911/21/12 and copy of register no. 2, which were admitted by the accused and were accordingly exhibited as Ex.P/A/1, Ex. P/A/2 and Ex.P/A/3 (colly) respectively. In view of the admissions made, the evidence of the chemical examiners Ms. Madhu Shukla and Sh. S. K. Singh and malkhana moharrir Head Constable Yudhvir Singh was dispensed with.
EVIDENCE OF THE PROSECUTION
7. To prove its case, the prosecution in all examined seven witnesses. PW-1 Assistant Sub Inspector Khem Chand and PW-2 Constable Vijender are the witnesses to the alleged recovery in the present case. PW-3 Constable Sushil is the official who had taken the exhibits from the malkhana of the police station and deposited them at the Excise Laboratory for examination. PW-4 Sub Inspector Pradeep is the duty officer who had recorded the FIR no. 263/12 of the present case Ex.PW4/A and made his endorsement Ex.PW4/B on the rukka. PW-5 Lady Constable Manju had joined investigation with the investigating officer. PW-6 Sub Inspector Nanag Ram is the investigating officer in the present case.
STATEMENT / DEFENCE OF THE ACCUSED
8. In her examination under Section 313 Cr.P.C., the accused Sita denied the entire evidence put to her. She categorically stated that she is innocent and has been falsely implicated in the present case. She stated that she had been apprehended from her house and nothing as State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 4 of 17 alleged had been recovered from her possession. She did not lead any evidence in her defence.
ANALYSIS AND FINDINGS
9. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. L.S. Gautam, learned legal aid counsel for the accused have been considered.
10. The case of the prosecution is that on the fateful day the accused Sita was found in possession of illicit liquor, which was being carried by her in a sack, without any permit or licence. In order to bring home the charge against the accused Sita Devi, the prosecution was first of all required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of accused Sita Devi.
Re: Recovery and seizure of case property
11. To prove the factum of apprehension of the accused in possession of the illicit liquor in question, the prosecution has examined two recovery witnesses namely PW-1 Assistant Sub Inspector Khem Chand and PW-2 Constable Vijender and the investigating officer PW-6 Sub Inspector Nanag Ram.
12. PW-1 Assistant Sub Inspector Khem Chand is the police official, who along with Constable Vijender had apprehended the accused. He has stated that on 03.11.2012, while he along with Constable Vijender was on patrolling duty and at about 09.00 p.m., when they were present in front of British Saloon, Old Palam Road, a secret informer State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 5 of 17 met him and told that a lady would come from the side of Old Palam Road, Choudhary Misthan Bhandar along with illicit liquor and would go towards Chandra Park. He further stated that he made efforts to join public persons in the investigation, however, since nobody agreed to join investigation, he along with Constable Vijrender formed a raiding party and waited for the accused. He further deposed that at about 09.35 pm, accused came from the side of Choudhary Misthan Bhandar and she was carrying a heavy sack on her head. He deposed that at the instance of the secret informer, accused was apprehended and, on checking, the sack, which she was carrying, was found containing 41 quarter bottles of ''Besto whisky, for sale in Chandigarh'' and 62 quarter bottles of ''Narangi Masaledar country made liquor''. He further stated that he took out two quarter bottles of Besto whisky as sample and gave them serial numbers 1 and 2 and also took two quarter bottles of Narangi Masaledar Desi Sharab and gave them serial numbers 3 and 4 and sealed the sample bottles and the sack with the seal of KC in a white cloth pulanda. He further stated that he had filled form M-29 and seized the illicit liquor and the sample bottles vide memo Ex.PW1/A. PW-1 deposed that he thereafter prepared tehrir and handed over the same to Constable Bijender who took the same to the police station and got the case registered. He stated that after registration of the FIR, further investigation was marked to Sub Inspector Nanag Ram, who also reached the spot. He stated that the site plan Ex.PW1/C was prepared by the investigating officer at his instance. PW-1 correctly identified the accused as well as the case property recovered from the possession of the accused. His State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 6 of 17 entire testimony has remained un-rebutted as despite cross- examination conducted on behalf of the accused, nothing material came out therefrom which could render his testimony unreliable.
13. PW-2 Constable Vijender was accompanying PW-1 Assistant Sub Inspector Khem Chand at the time of recovery of illicit liquor from accused Sita Devi. He has testified on the same lines as PW-1. He had also been cross-examined on behalf of the accused, however, there appears nothing in his cross-examination to discredit his testimony.
14. The investigating officer, PW-6 Sub Inspector Nanag Ram, deposed that on 03.11.2012, on receipt of copy of FIR and tehrir, he along with Constable Vijender and Woman Constable Manju reached the spot where Head Constable Khem Chand produced the case property sealed with the seal of KC and the accused before him. He deposed that Head Constable Khem Chand also produced accused Sita Devi before him. He further stated that he prepared the site plan Ex.PW1/C at the instance of Head Constable Khem Chand and arrested the accused Sita Devi vide memo Ex.PW2/A in the present case and got his personal search conducted vide memo Ex. PW 2/B. He stated that he had also recorded the disclosure statement Ex.PW2/C of the accused. He deposed that he had recorded the statements of witnesses, deposited the case property in the malkhana and got the medical examination of the accused conducted. He further stated that on 19.11.2012, he had sent the exhibits of this case to the Excise Laboratory through Constable Sushil for expert analysis. PW-6 State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 7 of 17 has also been cross-examined on behalf of the accused, however, nothing material came out in his cross-examination which could render his testimony unreliable.
15. All the three aforesaid witnesses have supported the case of the prosecution in material particulars. Further, there are no material contradictions in the testimony of the said recovery witnesses and the investigating officer, who have rather supported each other's testimony in material particulars.
Re: Sufficient link evidence
16. In order to prove that the case property was throughout in safe custody and had not been tampered with, the prosecution had cited Constable Sushil Kumar and malkhana moharrir Head Constable Yudhvir Singh as witnesses. The prosecution has examined Constable Sushil Kumar as PW-3. He deposed that on 19.11.2012, as per the direction of the SHO, police station Dwarka North, he took the sample bottles sealed with the seal of KC of the present case from the malkhana of the police station and deposited the same at the Excise laboratory vide road certificate No.194/21/12 and obtained receipt from the Excise laboratory. He deposed that the sample bottles remained intact and were not tampered with while the same remained in his custody. The said witness has not been cross-examined on behalf of the accused despite opportunity having been granted for the purpose. Accordingly, the testimony of PW-3 had remained unchallenged. The road certificate No. 1911/21/12 was admitted by the accused under Section 294 Cr.P.C. and was accordingly exhibited State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 8 of 17 as Ex.P/A/2. In view of the said admission, examination of the malkhana moharrir Head Constable Yudhvir Singh was dispensed with. Accordingly, the prosecution has produced sufficient link evidence to prove that the case property was in safe custody and had not been tampered with even during transport to the Excise laboratory for examination.
Re: Case property
17. As per the report of chemical examiner dated 20.11.2012 Ex. P/A/1, all the four samples were found positive for ethyl alcohol and while two of them were found to have the composition of country liquor, the remaining two were found to have composition of whisky. The accused admitted the said report vide her statement dated 21.04.2014 recorded under Section 294 Cr.P.C. The said report accordingly stands proved.
18. Further, when the case property was produced in the court during the examination of prosecution witnesses, the seal was found to be intact. The same rules out the possibility of the case property having been tampered with.
Re: Absence of independent witnesses
19. It had been argued by the learned defence counsel that the prosecution has not proved the recovery of the illicit liqour in question from the possession of the accused inasmuch as it has not cited or examined any independent public witness to the alleged recovery. Admittedly, no public witness to the recovery of the liquor has been State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 9 of 17 either cited in the list of witnesses or examined by the prosecution. However, although no public witness has been joined in the investigation, the said fact by itself cannot be a ground for rejecting the unimpeached testimony of the prosecution witnesses.
20. The provisions of Section 100 (4) Cr.P.C. are only directory and failure to comply with the said provisions is not invariably fatal to the case of the prosecution. It has been held by the Hon'ble Supreme Court in State of Punjab v. Balbir Singh, AIR 1994 SC 1872:
"7. At this juncture we may also dispose of one of the contentions that failure to comply with the provisions of Cr.P.C. in respect of search and seizure even up to that stage would also vitiate the trial. This aspect has been considered in a number of cases and it has been held that the violation of the provisions particularly that of S.100, 102, 103 or 165, Cr.P.C. strictly per se does not vitiate the prosecution case. If there is such violation, what the courts have to see is whether any prejudice was caused to the accused and in appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and from that point of view evaluate the evidence on record. ...
It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165, Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 10 of 17 the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. ... In Sunil Kumar v. The State, 1990 Cri LJ 414 again a case arising under the NDPS Act, the Delhi High Court while considering the scope of S. 42 of the NDPS Act and S. 100(4) of Cr.P.C. observed that failure to associate independent persons in the search in a given situation would not affect the prosecution case in toto and the same cannot be thrown out or doubted on that ground alone. ... It thus emerges that when the police, while acting under the provisions of Cr.P.C. as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or searches they would be acting under the provisions of Cr.P.C. At this stage if there is any non-compliance of the provisions of S.100 or 165, Cr.P.C. that by itself cannot be a ground to reject the prosecution case outright. The effect of such non-compliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case."
21. In the instant case, the prosecution witnesses PW-1 Head Constable Khem Chand and PW-2 Constable Vijender have maintained that they had asked 4-5 public persons to join the investigation, however, none agreed and left without disclosing their names and addresses. Thus, the present is not a case where no effort at all was made by the police officials to join public witnesses in the investigation. It has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696, that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. In paragraph 11 of the said decision, the Hon'ble State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 11 of 17 High Court of Delhi had observed as under:
"...It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether-in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. ..."
22. Further, it is trite that there is no reason to doubt the testimony of prosecution witnesses merely because they are police personnel. It has been held by the Hon'ble Supreme Court in paragraph 8 of the decision in Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311:
"...The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 12 of 17 without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down..."
23. In the instant case, the testimony of the prosecution witnesses, who are police officials, is found to be without blemish. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the accused. Therefore, there is found to be no ground to disbelieve their testimony. In view of the aforesaid, the mere fact that there is no public witness to the recovery of the illicit liquor from the possession of the accused is not sufficient to throw out the case of the prosecution.
24. With respect to the charge under Section 33 (a) of the Act read with Rule 11 of the Rules, the allegation of the prosecution is that the accused was transporting an intoxicant. The word "transport" is defined in Section 2 (72) of the Act as meaning "to move from one place to another within Delhi". As discussed above, the prosecution has successfully established that at the relevant time the accused was coming from the side of Choudhary Misthan Bhandar carrying a sack on her head containing the case property. Thus, it stands established that the accused was transporting the case property. What remains to be considered is whether the case property can be said to be an intoxicant. The word "intoxicant" is defined in Section 2 (40) of the Act to mean and include "(a) any liqour, (b) any spirit, (c) any intoxicating drug, (d) any other article, which the Government may from time to time declare to be intoxicant, except the substances covered under the Narcotic Drugs and Psychotropic Substances Act, 1985, for the State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 13 of 17 purpose of this Act". The term "liquor" is defined in Section 2 (46) of the Act to include inter alia 'whisky' and 'country liquor'. As per the report of the chemical examiner Ex.P/A/1, the analysis indicated that two of the samples had the composition of whisky while the other two samples confirmed to the technical specification of country liquor as laid down under the Delhi Excise Rules. Thus, it stands established by the prosecution that the case property recovered from the accused was an intoxicant. The prosecution has accordingly proved the charge in respect of the offence punishable under Section 33 (a) of the Act read with Rule 11 of the Rules against the accused.
25. With respect to the charge under Section 33 (f) of the Act read with Rule 20 of the Rules, the allegation of the prosecution is that the accused was found in possession of an intoxicant beyond the prescribed quantity. As per Rule 20 of the Rules, the maximum quantity which may be possessed by an individual is nine litres in case of whisky and three litres in case of country liqour. As discussed above, the prosecution has successfully established that at the relevant time the accused was carrying a sack on her head containing the case property. Thus, it stands established that the accused was in possession of the case property. As discussed above, as per the report of the chemical examiner Ex.P/A/1, the analysis indicated that two of the samples had the composition of whisky while the other two samples confirmed to the technical specification of country liquor as laid down under the Delhi Excise Rules. Thus, it stands established by the prosecution that the case property recovered from the accused contained intoxicants namely whisky and country liquor. What remains State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 14 of 17 to be considered is whether the intoxicants recovered from the possession of the accused were beyond the prescribed quantity. From the testimony of the recovery witnesses PW-1 and PW-2, it stands established that the case property recovered from the possession of the accused was comprised of 41 quarter bottles (10¼ litres) of Besto Whisky and 62 quarter bottles (15½ litres) of Narangi Maseledar desi sharab. Thus, the quantity of the intoxicants which were recovered from the possession of the accused was beyond the maximum limit for individual possession of liquor as specified under Rule 20 of the Rules. The prosecution has accordingly proved the charge in respect of the offence punishable under Section 33 (f) of the Act read with Rule 20 of the Rules against the accused.
CONCLUSION
26. In light of the above discussion and the evidence on record, this Court is of the considered opinion that the prosecution has successfully proved its case against the accused beyond reasonable doubt. The accused Sita Devi is hereby convicted for the offences punishable under Section 33 (a) of the Act read with Rule 11 of the Rules and Section 33 (f) of the Act read with Rule 20 of the Rules.
Announced in open Court on 21.05.2014.
(MANIKA) Metropolitan Magistrate- 05 (South-West), Dwarka Courts, New Delhi 21.05.2014 State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 15 of 17 IN THE COURT OF METROPOLITAN MAGISTRATE- 05, SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI Presided by: Ms. Manika State (Govt. of NCT Delhi) Vs. Sita Devi, W/o Late Sh. Kanha Ram, R/o A-58, Chandra Park, Kakrola, New Delhi.
FIR No. 263/12Police Station : Dwarka North Under Section: 33 Delhi Excise Act Unique Case ID Number: 02405R0093172013
1. Judgment pronounced on : 21.05.2014
2. Arguments on sentence heard on : 03.06.2014
3. Order on sentence passed on : 04.06.2014 ORDER ON SENTENCE
1. Vide judgment announced in the open court on 21.05.2014, accused Sita Devi had been convicted for the offence punishable under Section 33 (a) of the Delhi Excise Act read with Rule 11 of the Delhi Excise Rules and Section 33 (f) of the Act read with Rule 20 of the Delhi Excise Rules in case FIR No.263/2012 police station Dwarka North.
2. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for State and Sh. L. S. Gautam, Ld. Legal State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 16 of 17 Aid Counsel for the convict on the point of sentence have been heard.
3. Learned Assistant Public Prosecutor for State has prayed for deterrent punishment. However, learned counsel for the convict has prayed for a lenient view. He has submitted that the convict is a poor and widow lady aged about 50 years having no family member to take care of her as her only daughter is married in Ajmer. He further submits that the convict is dependent on a small shop for livelihood. He submits that the convict has already remained in custody for about four days in the present case during investigation.
4. The offences punishable under Section 33(a) and 33(f) of the Delhi Excise Act, for which the convict has been convicted in the present case are serious offences. Keeping in view the facts and circumstances of this case, the social and financial background of the convict who is a widow, having no previous conviction, and considering the matter in totality, the convict is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.50,000/-. In default of payment of fine, the convict shall further undergo simple imprisonment for a period of two months. Benefit of Section 428 Cr. P. C. be allowed to the convict.
5. Copy of this order be supplied free of cost to the convict. Announced in open Court on 04.06.2014.
(MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 04.06.2014 State v. Sita Devi FIR No. 263/13 P.S.: Dwarka North Page 17 of 17