Delhi District Court
State vs . Usha on 17 October, 2019
IN THE COURT OF Ms. NEHA GUPTA SINGH,
METROPOLITAN MAGISTRATE02,NORTH DISTRICT,
DELHI
STATE VS. Usha
FIR NO: 800/15
P. S. Samai Pur Badli
U/s 33/38 DELHI EXCISE ACT
JUDGMENT
Registration No. of the case : 5295800 2016 Date of its institution : 06.05.2016 Name of the complainant : Ct. Balbir, No. 2430/OD Date of Commission of offence : 01.07.2015 Name of the accused Usha W/o Sh. Raju, R/o MCD Colony, Samaipur, Delhi.
Also at: B34, Rana Park, Veer Bazar Chowk, Siraspur, Delhi.
Offence complained of : U/s 33/38 DELHI EXCISE ACT
Plea of accused : pleaded not guilty
Case reserved for orders : 01.10.2019
Date of judgment : 17.10.2019
Final Order : Acquitted for offence under
section 33 Delhi Excise Act
State Vs. Usha 1/13
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. The prosecution story in brief is that on 01.07.2015 at about 5.00 p.m. at Wazirpur Chowk, 40 Foot Road, Rana Park, Siraspur, Delhi within the jurisdiction of PS S.P. Badli, accused was found in possession of one plastic katta containing 96 quarter bottles of Asli Satra Masaledar Desi Sharab for sale in Haryana only as per the seizure memo Mark X without any permit or license and in contravention of Delhi Excise Act, thus accused Usha 1thereby committed an offence punishable U/s 33/38 Delhi Ex. Act.
2. Investigation was completed and charge sheet was filed under section 33 Delhi Excise Act. Cognizance was taken and accused was summoned.
3. Copy of charge sheet and documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused Usha was framed under section 33/38 Delhi Excise Act. Accused Usha pleaded not guilty and claimed trial.
5. In order to bring home the guilt of the accused, prosecution examined only five witnesses.
State Vs. Usha 2/136. W/HC Manvinder was examined as PW1. She deposed on 01.07.2015, she was posted at PS S. P. Badli; she was performing her duty at women help desk. She further deposed that HC Giriraj came & took her in the investigation and they reached to 40 foota road, Rana Park, Siraspur, Delhi. She further deposed that after reaching there they met Ct. Balbir and Rohtas and apprehended one lady namely Usha with having illicit liquor in her possession. IO Giriraj requested the passersby to join the investigation but none agreed. Thereafter, IO opened the plastic katta and it was found containing 96 quarter bottles of 180 ml. for sale in Haryana. IO took out two samples and wrapped them with a white cloth and remaining quarter bottles were kept in the same plastic katta. The samples were given serial no. 1A & 1B, and the remaining bottles were kept in the same plastic katta; that the plastic katta was converted into pullanda and it was sealed with the seal of GR and form no. 29 was also filled. Ct. Balbir was sent to the PS in order to get registered the FIR and Ct. Babir returned to the spot after getting registered the FIR and handed over the copy of the same to the IO. Thereafter, the site plan was prepared. IO prepared the seizure memo which is Ex. PW 1/A. She proved the site plan is Ex. PW 1/B. She also State Vs. Usha 3/13 proved the disclosure statement of the accused is Ex. PW 1/C. Accused Usha was bound down after giving notice u/s 41 Cr.P.C. She also proved the order of destruction, issued by Assistant Commissioner Excise vide no. 2754 dated 29.01.2016 Ex. P1; the certificate of destruction is Ex. P2; the report of destruction Ex. P3. She also proved the photographs of the destruction Ex. P4 (colly.). She also proved one sample bottle sealed with the seal of Jagat Singh is Ex. P5. She also proved the CD is Ex. P6.
7. HC Balbir Singh was examined as PW2 who deposed that on 01.07.2015, he was posted as constable at P.S. and he was on patrolling duty alongwith Ct. Rohtash and while patrolling they reached to 40 foota Road, Rana Park, Siraspur, Delhi. After reaching there, they found one lady having illicit liquor kept in a plastic katta. After seeing them, she/accused got frightened and moved with fast steps. Ct. Rohtash inquired from lady/accused and tried to put lame excuses; that they checked the katta and found illicit liquor in it and they gave information to the PS and after sometime IO HC Giriraj alongwith lady Ct. Manvinder reached to the spot and handed over the custody of accused as well as the case property to the IO. Thereafter, IO started to check the plastic katta and it was State Vs. Usha 4/13 found containing 96 quarter bottles. That two bottles were taken out for the purpose of sample and they were given the serial no. A1 and A2; that the remaining bottles were kept in the same plastic katta. IO prepared the tehrir and sent him to the PS to register the FIR. He went to the PS and got registered the FIR and returned to the spot and handed over the copy of FIR to the IO. He further deposed that IO prepared the seizure memo of the case property, which is Ex. PW 1/A. IO prepared the site plan. Form no. 29 was filled and the pulanda was sealed with the seal of GR and the seal after use was given to Ct. Rohtash. On 20.07.2015, he deposited the two samples at ITO Vikas Bhawan (Excise Department). He proved the order of destruction, issued by Assistant Commissioner Excise vide no. 2754 dated 29.01.2016 Ex. P1, the certificate of destruction Ex. P2, the report of destruction Ex. P3. He has also proved the photographs of the destruction Ex. P4 (colly.)., one sample bottle sealed with the seal of Jagat Singh Ex. P5 and the CD is Ex. P6.
8. Ct. Rohtas was examined as PW3 who deposed that on 01.07.2015, he was posted as constable at PS S.P. Badli and was on patrolling duty alongwith HC Balbir Singh and while patrolling they reached at 40 Foota Road, Rana Park, Siras Pur Delhi and after State Vs. Usha 5/13 reaching there they found one lady having plastic katta. After seeing them, she got frightened and tried to fled from the spot. He inquired from lady and tried to put lame excuses. He further deposed that they checked katta and found illicit liquor in it. HC Balbir informed to the PS and after some time, IO alongwith lady constable Manvinder reached to the spot and handed over the custody of accused and the katta to the IO. He further deposed that IO opened the said katta and found containing 96 illicit liquor of quarter bottles make Asali Santra Masaledar deshi sharab. IO took out two bottles from the said katta as a sample and given the serial no. A1 and A2 and kept the remaining bottles in the katta. IO prepared the teharir and handed over to HC Balbir for the registration of FIR. HC Balbir went to the PS and after some time, came back to the spot and handed over the original rukka and copy of FIR to the IO. He proved that the IO prepared the site plan, which is Ex.PW1/B, and also prepared the seizure memo of the illicit liquor. He also proved that IO recorded disclosure statement of accused as Ex.PW1/C. IO also filled the form M29 at the spot and the pullanda was sealed with the seal of GR and after using the seal, it was handed over to him. IO served the notice u/s 41 Cr. P.C. to the accused. He further deposed that IO recorded his statement. He proved the order of destruction, issued by Assistant Commissioner Excise vide no. 2754 dated 29.01.2016 is Ex. P1, the certificate of destruction is Ex. P2, the report of State Vs. Usha 6/13 destruction is Ex. P3. He has also proved the photographs of the destruction Ex. P4 (colly.) and sample of case property is Ex. P5.
9. HC Ravinder Singh was examined as PW4 who deposed that on 01.07.2015, he was posted at P.S. SP Badli as duty officer from 04.00 P.M. to 12.00 midnight. On that day, he received rukka through Ct. Balbir at about 7.40 P.M. sent by HC Giri Raj Prasad on the basis of which, he registered the FIR NO. 800/15, which is Ex. PW4/A. He further deposed that he put his endorsement on the rukka, which is Ex. PW4/B. After registration of FIR, he handed over the original rukka and copy of FIR to Ct. Balbir for handing over the same to HC Giri Raj. He issued certificate u/s 65B Indian Evidence Act in support of the aforesaid FIR same is Ex. PW4/C.
10. ASI Giri Raj Prasad was examined as PW5 who deposed that on 01.07.2015, he was posted as HC at P.S. SP Badli and after receiving the DD No. 68B, he alongwith Lady Ct. Rohtash and Ct. Balbir had handed over your custody and one plastic katta containing illicit liquor. He opened the said katta and found containing 96 illicit liquor of quarter bottles make Asli Santra Masalear deshi Sharab. He further deposed that he took two bottles from the said katta as a sample and given Sr. No. A1 and A2 and kept the remaining bottles in the katta. He proved that he prepared State Vs. Usha 7/13 the tehrir, which is Ex. PW5/A and handed over the same to Ct. Balbir for registration of FIR; that HC Balbir went to the PS and after some time came back to the spot and handed over the original rukka and copy of FIR to him. He prepared the site plan Ex. PW1/B at the instance of Ct. Rohtas and also prepared the seizure memo of the illicit liquor, which is Ex. PW1/A. He further deposed that he recorded the disclosure statement of accused, which is Ex.PW1/C and also filled the form M29 at the spot and the pullanda was sealed with the seal of GR and after using the seal, it was handed over to Ct. Rohtash. He obtained the result from Excise Deptt. ITO. He further deposed that the result from the Excise Department were obtained and thereafter, the charge sheet was filed. The case property was taken to PS and the same was deposited into the Malkhana. He proved the order of destruction, issued by Assistant Commissioner Excise vide no. 2754 dated 29.01.2016 is Ex. P1, the certificate of destruction is Ex. P2, the report of destruction is Ex. P3. He has also proved the photographs of the destruction Ex. P4 (colly.) and sample of case property is Ex. P5.
11. Thereafter, prosecution evidence was closed by the order of the court. Statement of accused Usha was recorded under Section 313Cr.P.C. All the incriminating evidences were put to the accused, to which she stated that she is falsely implicated State Vs. Usha 8/13 in the present matter. She did not wish to lead defense evidence.
12. I have heard the arguments addressed by the Learned APP for state and the accused herself and carefully perused the record.
13. It is argued by the Ld. APP for the state that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit liquor without permit. It is further stated that there are ocular and documentary evidence on record to bring home the guilt of the accused.
14. Per contra, it is argued by the Ld. Counsel for the accused that nonjoinder of public witness despite availability cast shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused she is falsely implicated in present case. There are no independent evidence against her.
15. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is State Vs. Usha 9/13 a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
16. In present case, prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened at 5:00 pm at thickly populated area and it is admitted fact that public persons were available at the spot. It was held in Pradeep Narayana V. State of Maharashtra AIR 1995 SC 1930, that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly, it was held in the case of Kuldeep Singh V. State of Haryana 2004(4) RCR 103 and Passi @ Prakash V. State of Haryana 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
State Vs. Usha 10/1317. In present case, IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were admittedly present. Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
18. In present case, recovery memo and other documents were prepared before the registration of FIR. When documents are prepared before registration of FIR and it contains the FIR number, an inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused. In such circumstances fairness of investigation is doubted. Reliance can be placed on the judgment of Giri Raj V/s State 83 (2000) DLT 201, wherein it was held that "5. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said State Vs. Usha 11/13 documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW 2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents 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 contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
19. In present case, the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. State Vs. Usha 12/13 (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
20. In light of above discussion, it cannot be said that state has proved its case beyond reasonable doubt. In the absence of any cogent evidence against the accused, Usha is acquitted for offence under section 33/38 Delhi Excise Act. Case property be confiscated to the state and the same be destroyed.
Announced in the open court NEHA Digitally signed
by NEHA GUPTA
On this 17th October 2019 GUPTA SINGH
Date: 2019.10.17
SINGH 13:13:16 -0600
(NEHA GUPTA SINGH)
Metropolitan Magistrate02,
North District Rohini Delhi
State Vs. Usha 13/13