Delhi District Court
State vs . Ramesh Chander on 3 March, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 135/20
U/s : 33 Delhi Excise Act
P.S. : Ranhola
State Vs. Ramesh Chander
JUDGMENT:
a) CNR No. : DLWT02-010278-2020
b) Sl. No. of the Case : 7057/2020
c) Name & address of the : HC Charan Singh, No. 663/OD
complainant. PS Ranhola, Delhi.
d) Name & address of : Ramesh Chander
S/o Jagdish Chander ,
accused R/o- H No. 148 Gali no. 7, Sainik Vihar,
Mohan Garden, Delhi.
e) Date of Commission of : 06.03.2020
offence
f) Offence complained off : U/s 33 Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Acquitted
i) Date of such order : 03.03.2022
Date of Institution : 06.10.2020
Final arguments heard on : 26.02.2022
Judgment Pronounced on : 03.03.2022.
FIR No: 135/20 State v. Ramesh Chander Page No.1/14
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 06.03.2020 at about 07.35 PM at Khali Plot, Gali no. 7 Sainik Vihar, Delhi accused was found in possession of 5 carton boxes containing out of which 2 carton boxes were containing 48 quarter bottles each of brand Double Blue whiskey for sale in Haryana only and 3 carton boxes were containing 50 bottles of illicit liquor of brand The best masaledar desi sharab for sale in Haryana only without any license or permit.
2. After investigation, challan for offence U/s 33 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 33 Delhi Excise Act was framed against accused on 30.09.2021, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined two witnesses.
5. PW1 Ct. Sumit who deposed that on 06.03.2020, he was on patrolling duty and while patrolling at around 7.35 PM he reached at Gali no. 7 Sainik Vihar, there he saw one person was FIR No: 135/20 State v. Ramesh Chander Page No.2/14 sitting on carton boxes at the corner of vacant plot and on seeing him in police uniform, he stood and started walking. PW1 further deposed that he got suspicious and stopped the said person. Upon inquiry, his name was revealed as Ramesh Chander. PW1 inquired about the contents of the carton boxes but he did not get any satisfactory reply. Thereafter, he checked the carton boxes and found that the same was containing bottles of illicit liquor. He further deposed that he informed the DO regarding the recovery and IO came at the spot and PW1 produced before him the case property and the accused. He further deposed that IO recorded his statement Ex. PW1/A. IO checked and found the same 5 carton boxes containing out of which 2 carton boxes were containing 48 quarter bottles each of brand Double Blue whiskey for sale in Haryana only and 3 carton boxes were containing 50 bottles of illicit liquor of brand The best masaledar desi sharab for sale in Haryana. IO separated one sample bottle from each carton sealed the same with the seal of JS and gave them serial number 1A-5A. IO filled form M-29 Ex. PW1/B and prepared the rukka and handed over the same to PW1 for registration of FIR, accordingly PW1 got FIR FIR No: 135/20 State v. Ramesh Chander Page No.3/14 registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to IO. IO prepared site plan at his instance which is Ex. PW1/C. IO arrested and personally searched the accused vide memos Ex. PW1/D and PW1/E. Seal after use was handed over to PW1 vide memo Ex. PW1/F. IO recorded disclosure statement of accused vide memo Ex. PW1/G. Case property was taken to PS and then deposited in malkhana. MHC(M) produced order of confiscation as well as order of destruction under the seal and signature of the SHO PS Mianwali Nagar marked as Mark A. The documents also contained images of seized illicit liquor gatta petis which were correctly identified by PW1 and is Ex. P1. MHC(M) also produced two sample bottles sealed with seal of JS which were correctly identified by the witness and is Ex. P2.
6. PW2 HC Charan Singh is the second IO of the case who deposed that he received the FSL result from MHC(M). He further deposed that he prepared the chargesheet and filed the same before the court.
7. PW3 HC Kapil Sharma is the IO of the case who deposed that On 06.03.20, after receiving DD No. 52B, he reached FIR No: 135/20 State v. Ramesh Chander Page No.4/14 at the spot. On reaching there he met Ct. Sumit who produced before him accused and 5 carton boxes of illicit liquor recovered from the accused Ramesh Chander. He then requested 4-5 public persons to join the investigation but none agreed and they left the spot without disclosing their names and address. He further deposed that he checked the aforesaid carton boxes and found that out of the 5 carton boxes, 2 carton boxes were containing 48 quarter bottles each of brand Double blue and 3 carton box were containing 50 quarter bottles each of brand The best, all for sale in Haryana only. He separated one bottle from each carton box as sample and sealed them with seal of KS. The remaining case property was also sealed with seal of KS. He filled form M-29 which is Ex. PW3/A. He seized the case property vide memo already Ex. PW1/B. He recorded statement of Ct. Sumit which is Ex. PW1/A. He prepared the rukka Ex. PW3/B and handed over the same to Ct. Sumit who took same to the PS and got the FIR registered and came back at the spot alongwith copy of FIR and original rukka and same was handed over to PW3. He prepared site plan at the instance of complainant Ex. PW1/C.. Accused was arrested and personally FIR No: 135/20 State v. Ramesh Chander Page No.5/14 searched vide memos already Ex. PW1/D and PW1/E. Case property was deposited in malkhana. I recorded statement of witnesses. He recorded disclosure statement of the accused Ex. PW1/G. Sample was sent to Excise lab. He further deposed that he recorded statement of witnesses and that he can identify the case property if shown.
7. After completion of prosecution evidence, all the incriminating evidence was put to accused U/s 313 Cr.P.C and his explanation was recorded, wherein he denied all the incriminating evidence against him and claimed to have been falsely implicated and case property planted upon him. Accused chose not to lead DE.
8. The accused admitted FIR, Certificate 65 Indian Evidence Act, DD No. 52B, Chemical examiner report, Statement of Ct. Ashok vide Ex.A-1 to Ex.A-5 u/s 294 Cr.P.C respectively.
9. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record.
10. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a FIR No: 135/20 State v. Ramesh Chander Page No.6/14 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 whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
11. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused Ramesh Chander is entitled to be acquitted for the charge by reasons of reasonable doubts in the prosecution story.
12. 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 FIR No: 135/20 State v. Ramesh Chander Page No.7/14 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 & Police Posts where Register No. II is maintained.
13. In the present case, the above said provision appears to have not been complied with by the prosecution. As per the prosecution version, at the time of the apprehension of the accused with illicit liquor from his possession, Ct Sumit (PW1) had left the PS for patrolling duty but the said DD entries vide which he had left the PS for patrolling duty and to perform proceedings post seizure of illicit liquor have not been brought on record. In the opinion of this Court, the prosecution was under an obligation to bring on record and prove the above said DD entries vide which the above said police official had left the PS, so as to prove the possibility of availability of said police officials PW1 and PW3 at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have brought on record and FIR No: 135/20 State v. Ramesh Chander Page No.8/14 prove the DD entries by which the above said police officials had left the PS, so as to inspire the confidence regarding their availability and presence at the place of apprehension of the accused, since the said police officials were under bounden duty to enter their departure and arrival from/at the police station by making a D.D. entry in that respect as per the aforesaid mentioned Punjab Police Rules.
14. At this juncture, it is relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record and prove the relevant DD entries as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the police officials.
FIR No: 135/20 State v. Ramesh Chander Page No.9/14
15. As deposed in his testimony, PW3 stated that he had asked some 4-5 public persons to join the investigation, but all of them refused and left the spot without disclosing their names and addresses. However, it is clear that no serious attempt was made by the concerned IO/PW3 to get independent public persons to join the police proceedings of seizure as PW3 has not at all deposed that he indeed tried to join independent witnesses in the investigation of case property despite availability of such witnesses. In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings for joining the investigation. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of apprehension by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join FIR No: 135/20 State v. Ramesh Chander Page No.10/14 independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is 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: " It is repeatedly laid down by this Court in such cases it should be 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". In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: " I have heard the learned counsel for FIR No: 135/20 State v. Ramesh Chander Page No.11/14 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. It is well settled principle of the law that the Investigating Agency 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 FIR No: 135/20 State v. Ramesh Chander Page No.12/14 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 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".
16. In view the background of the case, defence of the accused, non-following the established procedure of law by the investigating agency, as discussed above, this Court is of the opinion that the accused is entitled to the benefit of doubt. In this regard, reliance can be placed on the case of State of Haryana v. Bhagirath, AIR 1999 SC 2005, the Hon'ble Supreme Court illustrated the doctrine of benefit of doubt in the words "The FIR No: 135/20 State v. Ramesh Chander Page No.13/14 pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
17. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, it is held that the prosecution has failed to prove the alleged offence under Section 33 Delhi Excise Act against the accused Ramesh Chander beyond reasonable doubt. The accused Ramesh Chander is hereby acquitted for the charged offence.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 3rd day of March, 2022 03.03.2022
FIR No: 135/20 State v. Ramesh Chander Page No.14/14