Delhi District Court
State vs Raju @ Raja on 8 February, 2024
DLWT020091702019
IN THE COURT OF MS. SWATI BHARDWAJ, METROPOLITAN
MAGISTRATE-06, DISTRICT- WEST, TIS HAZARI COURTS,
DELHI
State Vs. Raju @ Raja
FIR No. 34/19
PS - Mundka
U/s 33 Delhi Excise Act
JUDGMENT
1) CIS No. : 4709/2019
2) The date of commission of offence : 01.03.2019
3) The name of the complainant : Ct. Nishant.
4) The name & parentage of accused : Raju @ Raja
S/o Sh. Kalyan
R/o 1122, Barsan Panna,
Tikri, Mundka, Delhi.
5) Ld. APP for State : Sh. Pravesh Kumar Vyas
6) Offence involved : U/s 33 of Delhi Excise Act.
7) The plea of accused : Pleaded not guilty
8) Final order : Acquitted
9) Judgment reserved on : 31.01.2024
10) Date of final order : 08.02.2024
State Vs. Raju @ Raja FIR No. 84/2019 1 of 7
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Summarily stated, the allegations of the prosecution are that on 01.03.2019 at about 6:40 PM at H. No. 1122, Barsan Pana, Tikri Kalan, Delhi, the accused Raju was found in possession of one katta containing 55 qtr bottles of liquor without any permit or license, thereby, he committed offences punishable under Section 33 of Delhi Excise Act, 2009.
2. Investigation was conducted into the allegations. Upon completion thereof, charge-sheet was filed. The accused was summoned. Compliance of section 207 Cr.P.C was done by providing copy of the charge sheet and annexed documents to the accused.
3. Upon finding a prima facie case against the accused, a formal charge for offence punishable under Section 33 of Delhi Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. To substantiate the allegations, 04 witnesses were examined on behalf of the prosecution.
5. PW-1 HC Kuldeep Singh deposed that on 01.03.2019, he received DD No. 39 regarding apprehension of a person alongwith illicit liquor at Tikri Kalan, Mundka, Delhi. Thereafter, he reached at the spot and met with Ct. Nishant who apprehended the accused Raju @ Raja with plastic katta containing qtr. bottles of illicit liquor. PW-1 asked 04 - 05 persons to join the investigation but they refused. The katta was checked and found containing 55 bottles of asli santra masaledar desi sharab. Ct. Nishant stated that out of 55 quarter bottles, one quarter bottle was State Vs. Raju @ Raja FIR No. 84/2019 2 of 7 recovered from a child who escaped from the spot. 01 quarter bottle was taken out as sample and remaining bottles remained in the same katta. The katta and sample bottles were duly sealed with the seal of KS. The seal after use was handed over to Ct. Nishant. The liquor was seized vide seizure memo which is Ex. PW1/A. PW-1 recorded the statement of Ct. Nishant which is Ex. PW1/B, prepared the rukka which is Ex. PW1/C and handed-over the same to Ct. Nishant for registration of FIR.
6. PW1 further deposed that Ct. Nishant went to the PS and after registration of FIR, he returned at the spot and handed-over original rukka and copy of FIR to the IO. 01 quarter bottle which was recovered from the child is Ex. PW1/D. Accused Raju @ Raja was arrested vide arrest memo Ex. PW1/E and his personal search memo was taken vide memo Ex. PW1/F. Accused was interrogated and made disclosure statement Ex. PW1/G. After completion of proceedings, PW-1 returned to the PS and deposited the case property in malkhana. The sample bottle was sent to Excise Office through Ct. Ajay. PW-1 correctly identified the accused and case property, Ex. P1.
7. PW-2 Ct. Nishant deposed that on 01.03.2019, he was on beat duty. At around 06.40 PM near Nealwal Road village Tikri, Barasan Pana, he saw a boy carrying a plastic quarter bottle containing illicit liquor. Thereafter, he apprehended the said boy and took the illicit liquor. PW-2 immediately informed the fact of recovery to PS Mundka. After some time IO/ HC Kuldeep arrived at the spot. Upon inquiry the boy revealed that he has bought the illicit liquor from a shop nearby and pointed towards the shop. Thereafter, PW-2 along with the IO and said State Vs. Raju @ Raja FIR No. 84/2019 3 of 7 boy went to the pointed shop and find one person who later revealed his name as Raju @ Raja, was selling illicit liquor which he carried in a plastic katta. They alongwith IO checked the plastic katta and counted the illicit liquor. They found 55 qtr bottles labeled with ADS spirits PVT. Limited for Sale in Haryana. PW-2 further reiterated the testimony of PW-1. PW-2 correctly identified the case property. The identity of accused was not disputed by Ld. Counsel for accused.
8. PW-3 HC Ajay deposed that on 05.03.2019 he took the samples of the case property from the malkhana of PS Mundka vide road certificate no. 26/21/19 dated 05.03.2019 which is marked as mark X. Thereafter, PW-3 took the case property and deposited the same at Excise Lab at Vikas Bhawan Delhi. Thereafter, he returned to the PS and gave the receiving in the malkhana of PS after which his statement was recorded in the PS by IO.
9. PW-4 ASI Daulat Singh deposed that on 13.05.2019, he was posted as ASI at PS - Mundka. On that day, he collected the Excise Result of the present case bearing no. SZD no. SZD007735 and deposited the same before the court on 06.06.2019 alongwith the charge- sheet after completion of the investigation in the present case.
10. Statement of accused was recorded under section 294 Cr.P.C. wherein the accused admitted the genuineness of FIR 84/19 which is Ex. P1, Certificate u/s 65B which is Ex. P2, DD No. 39B which is Ex. P3 and Excise Lab Result which is Ex. P4. The examination of corresponding witness to the said document was, therefore, dispensed with.
State Vs. Raju @ Raja FIR No. 84/2019 4 of 7
11. After prosecution evidence was concluded, statement of accused was recorded U/s 313 read with Section 281 Cr.P.C. wherein the accused refuted all the incriminating circumstances and evidence put to him and pleaded innocence and false implication.
12. Accused chose not to lead any evidence in his defence and the same was closed.
13. Final arguments were led on behalf of both the parties.
14. Rival submissions have been considered and record of case has been carefully perused.
15. It is trite that in a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily must go to the accused.
16. As per the deposition of prosecution witnesses, seizure memo of the liquor Ex. PW-1/A was prepared before the preparation of the rukka. However, Ex. PW-1/A already bears the number, date, offence, PS etc. of the present FIR. No explanation has been furnished by the prosecution regarding how the details of the FIR find mention on the seizure memo which was allegedly prepared on the spot and prior to the registration of the FIR. This shows that either the liquor was seized after the registration of the FIR or the number of the FIR was inserted later on. Either way, the same creates a doubt regarding seizure of the illicit liquor in the manner State Vs. Raju @ Raja FIR No. 84/2019 5 of 7 suggested by the prosecution. Reliance is placed on the decision of the Hon'ble High Court of Delhi cited as Mohd. Hashim, Appellant Vs. State; 2000 CRI.L.J. 1510.
17. After use, the of the seal KS is stated by PW1 to be deposited with Ct. Nishant. No seal handing over memo has been proved by the prosecution. Further, it has not been explained why the seal was not deposited with any independent witness. In such a scenario, tampering with the sample or the case property cannot be ruled out creating a doubt regarding preservation of the sample/ the seized case property. Support is drawn from the decisions cited as Safiullah vs. State; (1993) 49 DLT 193 and Rajesh Jagdamba Avasthi Vs. State of Goa; (2005) 9 SCC 773.
18. Admittedly, no public persons were joined in the recovery of the illicit liquor or during investigation. Prosecution witnesses have conceded that no notice was served to the public persons who refused to join the investigation and no reason for such omission has been disclosed by the prosecution. Therefore, sincere efforts were not made to make independent witnesses join the investigation, despite their availability at the spot at the time of the alleged recovery. This casts a shadow of doubt on the story of the prosecution. Here one may refer to decision of Hon'ble High Court of Delhi cited as Anoop Joshi Vs. State; 1992 (2) C.C. Cases
314.
19. Chapter 22 Rule 49(c) of Punjab Police Rules, 1934, provides that 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 shall be State Vs. Raju @ Raja FIR No. 84/2019 6 of 7 entered vide a separate entry and 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 in Register No. II. In the present case, no departure or the arrival entry of Ct. Nishant who allegedly found the accused with the illicit liquor on the spot has been proved by the prosecution. This creates a doubt regarding his presence at the spot and makes the prosecution version suspicious. Reliance is placed on the decision of the Hon'ble High Court of Delhi cited as Rattan Lal Vs. State; 1987 (2) Crimes 29.
20. In view of the above analysis, this court is of the considered opinion that the case of prosecution is rife with doubts and benefit thereof must be given to the accused.
21. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Consequently, the accused Raju @ Raja s/o Sh. Kalyan is acquitted of the offence punishable under Section 33 of Delhi Excise Act, 2009. Digitally signed by SWATI SWATI GUPTA Date:
GUPTA 2024.02.08
16:01:29
Pronounced in the open (SWATI BHARDWAJ)
+0530
Court on 08.02.2024 MM-06 (West), Tis Hazari Courts
Delhi
This judgment contains 07 signed pages.
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