Delhi District Court
State vs Shayam Kumar on 30 August, 2024
IN THE COURT OF SH. AVIRAL SHUKLA, JUDICIAL MAGISTRATE
FIRST CLASS-05, SOUTH DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
CNR No. DLST02-011494-2022
IN THE MATTER OF:
STATE Vs. SHYAM KUMAR
FIR no. 206/2021
PS MEHRAULI
U/s 33/52 Delhi Excise Act
JUDGMENT
A) Sl. No. of the case : CR No. 3427/2022
B) The date of commission of : 29.03.2021
offence
C) The name of the complainant : HC Devender, No. 1690/PCR, South
Zone PCR, New Delhi.
D) The name and address of accused : Shyam Kumar, S/o Sh. Radhey
Shyam, R/o H. No. A-85, Ambedkar
Colony, New Delhi.
E) Offence complained of : 33/52 of the Delhi Excise Act, 2009.
F) The plea of accused : Not Guilty
G) Final Order : Acquittal
H) The date of such Order : 30.08.2024
DATE OF INSTITUTION : 20.05.2022
DATE OF FINAL ARGUMENTS : 28.08.2024
DATE OF JUDGMENT : 30.08.2024
FIR No.206/2021 PS Mehrauli Page No.1 of 13
Digitally signed
AVIRAL by AVIRAL
SHUKLA
SHUKLA Date: 2024.08.30
16:51:25 +0530
BRIEF FACTS
1. The present case has originated from the charge-sheet filed by the State under Section 33/52 of the Delhi Excise Act, 2009, against accused Shyam Kumar, S/o Sh. Radhey Shyam. As per the charge-sheet, on 29.03.2021 at around 02.35 PM in front of H. No. A-85, Ambedkar Colony, New Delhi i.e. within the jurisdiction of PS Mehrauli, accused was found in possession of 24 bottles of Kingfisher Delux Strong Beer measuring 650 ml for sale in Haryana only and kept these illicit liquors on his scooty bearing no. DL3SEQ6602 being the owner of the scooty, accused used his scooty for this illegal purpose and carried these liquors without having any license / permit and thereby committed an offence punishable under Section 33/52 of the Delhi Excise Act.
2. On the basis of the charge-sheet, the Court took cognizance of the offence on 20.05.2022 and was supplied with copy of chargesheet and documents in compliance of Section 207 Cr.P.C on 08.06.2022. Court framed the charge against the accused for offence punishable under Section 33/52 of Delhi Excise Act. Charge was read over and explained to him to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. In order to prove its case, the prosecution has examined the following five witnesses:
(i) PW1 was HC Devender;
(ii) PW2 was HC Vinay Kumar;
FIR No.206/2021 PS Mehrauli Page No.2 of 13
Digitally signed
AVIRAL by AVIRAL
SHUKLA
SHUKLA Date: 2024.08.30
16:51:34 +0530
(iii) PW3 was HC Rajesh;
(iv) PW4 was Inspector Prem Kumar; and
(v) PW5 was ASI Mahesh Kumar.
4. PW-1 HC Devender deposed that on 29.03 2021, he was posted as HC and Incharge in South Zone of Prakhar 57A vehicle. On that day, his duty hours were from 08.00 AM to 08.00 PM. During patrolling at about 2:30 PM, he saw one scooty bearing no DL3SEQ6602 and it created suspicion in his mind. He directed the driver Ct. Vinod to chase the alleged scooty. After a little distance, the scooty had gone inside one street, the street was narrow and the vehicle could not go inside the street. PW-1 HC Devender deboarded the vehicle and ran behind the scooty. Ct Vinod also came behind him to help him. Accused left the scooty in front of H. No. A-85, Ambedkar Colony, Chattarpur Pahadi, New Delhi. One katta was laying on the scooty containing two pettis of beer make Kingfisher Deluxe Strong Beer measuring 650 ml each for sale in Haryana only.
5. PW-1 HC Devender further deposed that he had given the information regarding the same in the PS. Police officials came at the spot and he had handed over alleged scooty as well as illicit liquor to IO who had recorded his statement which is Ex PW-1/A. IO checked the katta and found 24 bottles of Kingfisher Deluxe strong beer measuring 650 ml each for sale in Haryana only. Thereafter, IO had taken out 1 bottle as sample and kept the remaining bottles in the same katta. IO had sealed the katta with the seal of PK. IO had sealed the sample bottle with the seal of PK and marked it as Sr. no. S1. IO had filled Form M29. After the use of the seal, it was handed over to HC Rajesh. IO had seized the illicit liquor vide FIR No.206/2021 PS Mehrauli Page No.3 of 13 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.08.30 16:51:41 +0530 memo Ex PW1/B. Witness further deposed that IO had seized the alleged scooty with key vide memo Ex.PW1/C. IO had prepared the tehrir and handed over the same to HC Rajesh and sent him to PS for registration of FIR. After registration of FIR, further investigation was marked to HC Mahesh. During investigation, he had filled the details of FIR on the documents prepared before registration of FIR. He had prepared the site plan at his instance which is Ex PW1/D. After interrogation of the accused, IO had arrested him and conducted his personal search vide memo Ex PW1/E and Ex PW1/F respectively. PW-1 further deposed that they came back to PS and deposited the case property in the malkhana. IO recorded his statement regarding the same. PW-1 HC Devender correctly identified the accused in the court. Witness also correctly identified the case property Ex. P-1 as well as photograph of the scooty Ex. P2 in the court. Witness was duly cross-examined by Ld. defence counsel.
6. PW-2 HC Vinod Kumar deposed on the similar lines as deposed by PW1. He had also identified the accused in the court. He has also correctly identified the case property Ex. P-1 as well as photograph Ex. P-2 in the court. PW-2 was duly cross- examined by Ld. defence counsel.
7. PW-3 HC Rajesh deposed that on 29.03.2021, he was posted as HC at PS Mehrauli. On that day, IO received GD no 63A and after receiving the same, he alongwith IO went to the place of incident where they met HC Devender and Ct Vinod. HC Devender handed over one scooty and illicit beer to IO. IO checked the illicit beer and found 24 bottles of Kingfisher Delux Strong Beer net contents of 650 ml each for sale in Haryana only. Thereafter, IO had taken out one bottle as FIR No.206/2021 PS Mehrauli Page No.4 of 13 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.08.30 16:51:51 +0530 sample and marked it as S1. IO had kept the remaining bottles in the same pettis and then in the same katta. IO sealed the said katta as well as the sample with the seal of PK. IO had filled the form M29 and after the use of seal, it was handed over to him and seized the illicit beer vide memo Ex. PW1/B. IO had also seized the alleged scooty vide memo Ex. PW1/C. IO had prepared the tehrir and handed over the same to him and sent him to PS for registration of FIR. After registration of FIR, he came back at the place of incident and handed over the copy of FIR and original rukka to IO/HC Mahesh as further investigation was marked to him. They had searched for the accused but could not find anyone. Thereafter, they came back to PS and deposited the case property in the malkhana. IO had recorded his statement regarding the same. PW-3 HC Rajesh correctly identified the case property Ex. P-1 as well as photograph Ex. P-2 in the court. PW-3 was duly cross- examined by Ld. defence counsel.
8. PW-4 Inspector Prem Kumar deposed on the similar lines as deposed by PW- 3 HC Rajesh as PW-4 was present at the spot along-with PW-3 HC Rajesh. PW-4 Inspector Prem Kumar correctly identified the case property Ex. P-1 as well as photograph Ex. P-2 in the court. PW-4 was duly cross-examined by Ld. defence counsel.
9. PW-5 ASI Mahesh Kumar deposed that on 29.03.2021, he was posted at PS Mehrauli as HC and on that day, he was present in PS. The present matter was marked to him which was in respect of apprehension of a person with illicit liquor. He was the 2nd IO in the present case. He reached at the spot situated in front of A- 85, Andheria Mod, Ambedkar Colony, New Delhi. SI Prem was already present FIR No.206/2021 PS Mehrauli Page No.5 of 13 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.08.30 16:51:58 +0530 along-with HC Devender, HC Rajesh and Ct. Vinod. SI Prem handed over a sealed plastic katta/sack stating that the same was recovered from possession of the accused along-with a scooty. PW-5 ASI Mahesh prepared site plan at the instance of HC Devender and recorded statement of SI Prem, HC Devender, HC Rajesh and Ct. Vinod u/s 161 Cr.P.C. He along with SI Prem, HC Devender, HC Rajesh and Ct. Vinod went to PS. PW-5 ASI Mahesh deposited the case property i.e. sealed plastic katta containing illicit liquor and scooty at PS malkana.
10. PW-5 ASI Mahesh Kumar further deposed that on 09.04.2021, ownership of the recovered scooty was verified by concerned authority by him. On 23.05.2021, he along with HC Devender, Ct. Mahipal reached at the house of the accused. He deposed that the accused was arrested from outside the house. He recorded disclosure statement of accused and also conducted personal search of the accused. Thereafter, accused was sent to JC and after some time, he collected the Excise Lab Report of the sample of illicit liquor. He had filed the charge-sheet in the present matter. The site plan is Ex.PW1/D. The disclosure statement of accused Shyam Kumar is Ex.PW5/A. The arrest memo of accused is Ex.PW1/A. The personal search memo of accused is Ex.PW1/F. The charge-sheet is Ex.PW5/B. PW-5 ASI Mahesh Kumar correctly identified the accused in the court. PW-5 ASI Mahesh Kumar was duly cross-examined by Ld. defence counsel.
STATEMENT OF ACCUSED & FINAL ARGUMENTS
11. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him. Accused pleaded innocence and claimed to FIR No.206/2021 PS Mehrauli Page No.6 of 13 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.08.30 16:52:06 +0530 have been falsely implicated. Despite opportunity, accused chose not to lead any evidence in his defence. Thereafter, final arguments were heard.
COURT OBSERVATION
12. At the outset, it is pertinent to note that Section 33 Delhi Excise Act reads as under:
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) 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, 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 but which may extend to one lath rupees.
13. It is the case of prosecution that on on 29.03.2021 at around 02.35 PM in front of H. No. A-85, Ambedkar Colony, New Delhi i.e. within the jurisdiction of PS Mehrauli, accused was found in possession of 24 bottles of Kingfisher Delux Strong Beer measuring 650 ml for sale in Haryana only and kept these illicit liquors on his scooty bearing no. DL3SEQ6602 being the owner of the scooty, accused FIR No.206/2021 PS Mehrauli Page No.7 of 13 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.08.30 16:52:12 +0530 used his scooty for this illegal purpose and carried these liquors without having any license / permit and thereby committed an offence punishable under Section 33/52 of the Delhi Excise Act. Per contra, it is the defence of accused that no public witness joined the proceedings. Also, it has been argued that there is discrepancy in the depositions of prosecution witnesses.
14. In order to prove the alleged offence, the prosecution is first and foremost required to prove the recovery of illicit liquor from the possession of accused. In order to prove the said recovery, it is a mandate to comply provision of section 100 (4) of the Cr.PC. The accused was nabbed from a residential locality but no public person has been examined. Under these circumstances, there is absolute non compliance of Section 100 Cr.PC Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere effort was made to join respectable witnesses from the same locality.
15. In this regard reliance is also being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be FIR No.206/2021 PS Mehrauli Page No.8 of 13 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.08.30 16:52:23 +0530 shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
16. In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the Investigating Agency 19.01.2013 should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have FIR No.206/2021 PS Mehrauli Page No.9 of 13 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.08.30 16:52:29 +0530 proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
17. The prosecution has failed to prove when a number of people from the residential locality were available, why the testimony of said witnesses were not recorded. Not even a single notice was given to any public person to join the investigation. Photography and videography were also not conducted. The aforesaid lapse casts a doubt on the version of the prosecution, as presented in the chargesheet.
18. It further needs to be appreciated that after preparing the tehrir, ASI Mahesh had sent HC Rajesh for registration of FIR to the PS, however, admittedly seizure memo Ex. PW-1/B has been prepared prior to the time of registration of FIR. It is, therefore, clear that the seizure memo of the liquor must have been prepared at the spot before the tehrir was sent to the police station for registration of the FIR. A perusal of the seizure memo reveals that it contains the FIR details, thus raising a valid doubt in the mind of this court as to how it was made before the FIR was lodged and still contained the FIR details. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by HC Rajesh. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW- 1/B bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The same indicates that FIR number was FIR No.206/2021 PS Mehrauli Page No.10 of 13 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.08.30 16:52:34 +0530 mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar vs. The Delhi Administration , 1989 Cri. L.J. 127, wherein it was observed paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
19. In paragraph 4 of Mohd. Hashim v. State , 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted FIR No.206/2021 PS Mehrauli Page No.11 of 13 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.08.30 16:52:43 +0530 under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) 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."
20. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo Ex. PW- 1/B. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time or that the IO never joined the investigation at the spot and every part of the investigation was done by him while sitting at the PS as alleged by the defence. In both the aforesaid cases, a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
21. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal) 662).
FIR No.206/2021 PS Mehrauli Page No.12 of 13 Digitally signedAVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.08.30 16:52:49 +0530
22. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused, the benefit of which accrues in his favour. Accused Shyam Kumar, S/o Sh. Radhey Shyam is accordingly acquitted for the offence under Section 33/52 Delhi Excise Act.
23. Let bail bonds / surety bonds be furnished by the accused under Section 437A, CrPC.
AVIRAL Digitally signed by
AVIRAL SHUKLA
SHUKLA 16:52:57 +0530
Date: 2024.08.30
Announced in Open Court (AVIRAL SHUKLA)
on 30.08.2024 JMFC-05,South District/30.08.2024
Certified that this judgment contains 13 pages and bears my signatures at each page. AVIRAL by Digitally signed AVIRAL SHUKLA SHUKLA Date: 2024.08.30 16:53:04 +0530 (AVIRAL SHUKLA) JMFC-05,South District/30.08.2024 FIR No.206/2021 PS Mehrauli Page No.13 of 13