Delhi District Court
State vs . Shanker on 22 March, 2022
IN THE COURT OF MS. CHHAVI KAPOOR
CHIEF METROPOLITAN MAGISTRATE (WEST)
TIS HAZARI COURTS, DELHI
In the matter of :
State Vs. Shanker
FIR No. 124/18
P.S Kirti Nagar
1. ID No. of case 6004/2018
2. Date of institution 08.08.2018
3. Name of the complainant Constable Sandeep
4. Date of commission of offence 05.04.2018
5. Name of accused Shankar, S/o Mohan Lal, R/o
Jhuggi No. 186, C5/35,
Industrial Area, Kirti Nagar,
Delhi.
6. Offence complained of U/s 33 Delhi Excise Act
7. Plea of accused Pleaded not gulity
8. Final order Acquitted.
9 Date of such judgment 22.03.2022
FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 1 of 11
JUDGMENT
1. The Prosecution has filed a chargesheet against the accused for committing offence under Section 33 of Delhi Excise Act. Prosecution has alleged that on 05.4.2018 , the accused was found in possession of 150 quarter bottles of Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 200 quarter bottles of Rasila Santra Masaledar Desi Sharab for sale in Haryana only, 96 quarter bottles of P K Whiskey for sale in Arunanchal Pradesh only, four bottles of party special delux whiskey for sale in Arunachal Pradesh only, 96 quarter bottles of Crazy Romia Whiskey for sale in Arunachal Pradesh and 72 quarter bottles of Crazy Romia Whiskey for sale in Arunachal Pradesh for sale in Haryana only, however, he did not possess valid license or permission and thus committed an offence u/s 33 of The Delhi Excise Act . The investigation was conducted against the accused for committing offence u/s. 33 of Delhi Excise Act and after completion of the same, chargesheet came to be filed before this court and accused was sent up for facing trial. Charge under Section 33 of Delhi Excise Act were framed against the accused on 26.07.2019 to which he pleaded not FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 2 of 11 guilty and claimed trial.
2. During trial, prosecution examined the following three witnesses in support of its case.
3. PW1 is Ct Sandeep. This police official was on area patrolling duty in Kirti Nagar at the time of apprehension of the accused .He has deposed that he when he reached at Industrial Area, Kirti Nagar at around 6.00 PM, he saw the accused who was a BAD CHARACTER of the area coming with a white plastic sack on his shoulder. The witness deposed that on suspicion , he signalled this person to stop and on checking the white sack, he found the same to be containing liquor bottles. Witness deposed that he informed at PS Kirti Nagar regarding the recovery and apprehension of accused whereafter ASI Narender came to the spot for investigation. Witness further deposed that after arrival of ASI Narender at the spot , 150 quarter bottles of Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 200 quarter bottles of Rasila Santra Masaledar Desi Sharab for sale in Haryana only, 96 quarter bottles of P K Whiskey for sale in Arunanchal Pradesh only, four bottles of party special delux whiskey for sale in Arunachal FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 3 of 11 Pradesh only and 96 quarter bottles of Crazy Romia Whiskey for sale in Arunachal Pradesh and 72 quarter bottles of Crazy Romia Whiskey for sale in Arunachal Pradesh for sale in Haryana were recovered from the possession of the accused. Wintess deposed that the IO separated the sample bottles and the remaining liquor bottles in his presence and sealed them with the seal of NK. He deposed that a tehrir was prepared by ASI Narender and handed over to him and he took the same to PS Kirti Nagar and got the FIR registered against the accused .
4. IO of the case, i.e ASI Narender was examined as PW2.
He deposed that consequent to receipt of information regarding recovery of liquor and apprehension of the accused , he went to the spot and checked the recovered liquor. He deposed that he separated sample bottles from the recovered case property and sealed the sample and the remaining liquor with the seal of NK and proceeded to prepare tehrir to get the FIR registered against the accused. He deposed that he prepared the site plan and arrested the accused. He deposed that he sent the case property to malkhana and also sent the sample liquor bottles to the excise lab for their examination.
FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 4 of 11
5. Statement of accused under section 294 Cr.PC was recorded whereby he admitted the following documents without admitting the contents of same u/s. 294 Cr.P.C.
Copy of FIR; Ex.A1
Certificate under section 65 (B) Evidence Act ; Ex.A2.
Endorsement on rukka is Ex. A3.
Copy of Excise Lab Result is Ex. A4.
6. Statement of accused u/s 313 Cr.PC read with Sec. 281 Cr.P.C. was recorded by the Court wherein all the incriminating evidence was put to him for seeking his explanation to which, he stated that he was innocent and had been falsely implicated in the present case. The accused pleaded that he did not wish to lead evidence in his defence.
7. Thereafter, Court has heard Ld. APP for the State and Ld. Counsel for accused on the merits of this case.
Findings are as under :
8. A bare perusal of the testimony of prosecution FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 5 of 11 witnesses shows that the police have chosen not to include independent public witnesses to the investigation of this FIR. The police witnesses have admitted that the public persons were present at the spot from where the accused was apprehended .Further , it is clear that the accused was apprehended in the wee hours of evening and thus , there is strong likelihood that his apprehension would have been witnessed by a good number of passerbys. Still, the IO did not care to include even one person as an independent witness to the search and recovery procedure.
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 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 FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 6 of 11 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. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court it was 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 FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 7 of 11 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 FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 8 of 11 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 nonjoining 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".
9. Furthermore, it has been seen in the evidence of PW1 that the case property produced from Malkhana had been produced in an unsealed condition .Sufficient cause for production of the case property in this condition has not been shown by the prosecution .
FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 9 of 11
10. As per the testimony of PW1, the seal used to seal the case property was handed over to him by the IO after use, however no seal handing over taking over memo was prepared. Further, the fact that the seal was handed over to PW1 after use by the IO was not mentioned in his statement u/s 161 CrPC and he admitted this fact in his cross examination .As per the testimony of PW1, the case property was taken to Malkhana in his private car but this fact is not mentioned anywhere in the chargesheet . Thus , the veracity of the case of the state showing recovery of illicit liquor from the possession of the accused is doubtful. The seal which was allegedly used to seal the case property throughout remained in possession of the police personnel, who are interested witnesses in this trial .There is a question mark on the mode by which the case property was transported to the malkhana. The IO had not deposed anything regarding the mode of transport of the case property to the Malkhana in his evidence whereas PW1 had stated that he took the case property to malkhana in his private car .Under what circumstances did PW1 get his private car to the spot are also questionable. The said circumstances, coupled with the fact FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 10 of 11 that the IO did not care to include public witnesses to the investigation, either as arrest witnesses or as witnesses to the recovery process have raised a doubt on the truthfulness of prosecution's case.
11. In view of the foregoing circumstances, this Court is of the opinion that evidence led by the prosecution is not free from reasonable doubt and same cannot be used to record a finding of guilt against the accused Shankar. Accordingly, accused Shankar is granted benefit of doubt and hereby acquitted for offence u/sec. 33 of Delhi Excise Act.
Announced in the open court (CHHAVI KAPOOR) on 22.03.2022 Chief Metropolitan Magistrate, West District, Tis Hazari Courts, Delhi.
Certified that this Judgment contains Eleven (11) pages and each page is signed by me.
(CHHAVI KAPOOR) Chief Metropolitan Magistrate, West District, Tis Hazari Courts, Delhi.
FIR No. 124/18 PS Kirti Nagar State Vs. Shankar. Page- 11 of 11