Delhi District Court
State vs Amit @ Sonu on 7 September, 2024
Cr Cases 50789/2016
STATE Vs. AMIT @ SONU
143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act
IN THE COURT OF MS. NEHA PRIYA : ACJM-02 :NEW DELHI
DISTRICT : PATIALA HOUSE COURT : NEW DELHI
Cr Cases 50789/2016
STATE Vs. AMIT @ SONU
143 /2012 (R.K. Puram)
u/s 33/58 of Delhi Excise Act, 2009
1. Case No. of the case. : 50789/2016
2. The date of offence : 12.07.2012
3. The name of the complainant : Ct. Vinod
4. The name of the accused : Amit @ Sonu
s/o Sh. Amarnath
r/o Jhuggi no. S-
126/239, K. D. Colony,
Sec-12, R. K. Puram,
New Delhi.
5. The offence complained : Section 33/58 of Delhi
Excise Act, 2009
6. The plea of the accused : Not guilty
7. Date of institution of the case : 28.09.2012
8. The date of order : 07.09.2024
9. The final order : Acquitted
Page no. 1 of 15
Cr Cases 50789/2016
STATE Vs. AMIT @ SONU
143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act
JUDGMENT
1. This is the prosecution of accused, namely, Amit @ Sonu upon a charge sheet filed by the police station R. K. Puram under Section 33/58 of the Delhi Excise Act, 2009.
2. Allegation against the accused is that on 12.07.2012 at about 09:00 a.m. at Sangam Cinema Picket, Sec-9, R. K. Puram, New Delhi, within jurisdiction of PS R. K. Puram, accused was found in possession of illicit liquor in TATA Sumo car bearing no. HR-59A- 0123 containing 11 petis having 48 quarter bottles each of 180ml of N.V Group Besto Whisky (for sale in Arunachal Pradesh only), without any permit or license and in contravention to provisions of Delhi Excise Act, and thereby accused is alleged to have committed an offence punishable u/s 33/58 of Delhi Excise Act, 2009.
3. After completing the formalities, investigation was carried out by PS R. K. Puram and a charge sheet was filed against the accused. Charge was framed against the accused u/s 33/58 of Delhi Excise Act, 2009 to which he pleaded not guilty and claimed trial.
4. Vide separate statement dated 21.08.2024, accused admitted Chemical Examination Report Ex. A1 u/s 294 Cr.P.C.
5. In order to substantiate its case, prosecution examined eight Page no. 2 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act witnesses.
6. PW-1 HC Vinod Kumar deposed on oath that "On 12.07.2012, I was posted as Constable at PS R.K. Puram. My duty hours was 06.00 am to 09.00-10.00 pm. On that day, I along with Ct. Virender Tyagi were on picket checking of vehicles near Sangam Cinema. During checking of vehicles, one white coloured TATA Sumo Vehicle bearing no HR-59A-0123 was stopped at the picket. In the meantime, one Amit @ Sonu who was driving the said vehicle, came down on the vehicle and ran away from the spot towards DPS School. Thereafter, I along with Ct. Virender Tyagi checked the said vehicle and found petties of illicit liquor. I called the PS and informed the said incident to PS. Thereafter, SI Subhash Chand came on the spot and checked the vehicle and found containing 11 petties of illicit liquor bottles. Thereafter, my statement was recorded which is Ex. PW1/A bearing my signatures at point A. Total 11 petties of quarter bottles of illicit liquor of 180 ml having label of NV Group Bestow Whiskey for sale in Arunachal Pradesh only which was total 528 quarter bottles, NV Group was mentioned on the cap of each bottle. Thereafter, one sample bottle was taken out from each petti and remaining 517 bottles were kept back inside the respective petties and sealed the petties with the white pullanda with the seal of SC. All the petties were given serial no. S1 to S11. Sample bottles were also kept in a white pullanda and sealed with the seal of SC and samples were given serial no. 1A to Page no. 3 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act 11A. Form M29 was filled on the spot by the IO. IO seized the illicit liquor petties vide seizure memo Ex. PW1/B bearing my signatures at point A. Seal after use was handed over to me by SI Subhash Chand. The offending TATA Sumo vehicle bearing no. HR-59A- 0123 was seized and taken into possession by the IO vide seizure memo Ex. PW1/C bearing my signatures at point A. Thereafter, IO prepared site plan at my instance which is Ex. PW1/D bearing my signatures at point A. Thereafter, IO prepared the rukka of the present case and handed over the same to Ct. Virender for registration of the FIR. Thereafter, I was relieved from investigation". Said witness correctly identified the accused. Said witness was duly cross-examined by ld. Counsel for accused.
7. PW-2 HC Surender Singh deposed on oath that "Today I have brought the photographs of the case property i.e. Tata Sumo bearing Reg. No. HR59A0123(white color). The 7 photographs of the above mentioned vehicle pasted on 3 pages are now taken on rcord. The same is now Ex. P-3(colly)". Said witness was not cross-examined by ld. Counsel for accused despite opportunity.
8. PW-3 W/SI Gyan Prabha deposed on oath that "On 12.07.2012, I was posted as duty officer at PS R. K. Puram, and my duty hours were from 08:00 AM to 04:00 PM. At 11:45 AM, I received the rukka from Ct. Virender sent by SI Subhash Chand. I made the endorsement on rukka Exb. PW-3/A bear my signature at Page no. 4 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act point A. On the basis of rukka, I registered the present FIR. Copy of FIR is Exb. PW-3/B (OSR) bear my signature at point A. I handed over the copy of FIR and original rukka to HC Subhash for investigation of the present matter". Said witness was not cross- examined by ld. Counsel for accused despite opportunity.
9. PW-4 SI Subhash Chand deposed on oath that "On 12.07.2012, I was posted as Sl at PS R. K. Puram. On that day, I received a call from D. O. regarding illicit liquor. Thereafter, I reached at the spot ie. Sangam Vihar, Sector 9, R. K. Puram, New Delhi where a vehicle was make Tata Sumo bearing no. HR-59-A 0123. 1 recovered illicit liquor from the vehicle, I counted the same. There were total 11 peties and each contain 48 quarters. Total number of the quarters were 528 which were marked as "NV Group sale for Arunachal Pradesh Only" I took out one quarter from each peti for the sample (11 quarter). I sealed the same with the seal of SC. I also seized all 11 peties containing each 47 quarter and sealed with the seal of SC and marked the peties as S-1 to S-11. The Seizure Memo is already exhibited as Ex. PW1/B bearing my signature at point B. I gave the numbering to quarter as 1-A to 11-A. After seized the same, I handed over seal to the Ct. Vinod. Thereafter, I seized the Tata Sumo bearing no. HR-59-A 0123 vide Seizure Memo already Ex. P1/C bearing my signature at point B. Thereafter, I filled up the Form M-29 which is now Ex. PW4/A bearing my signature at point A. Thereafter, I prepared the tehrir Page no. 5 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act which is now exhibited as Ex. PW4/B bearing my signature at point A and handed over the same to Ct. Virender Tygagi for registration of FIR. After sometime, HC Subhash came at the spot and I handed over the investigation to HC Subhash" Said witness correctly identified the accused and photographs of offending vehicle bearing no. HR-59A-0123 Ex. P3(colly). Said witness was duly cross- examined by ld. counsel for accused.
10. PW-5 ASI Subhash deposed on oath that "On 12.07.2012, I was posted as Head Constable at PS R. K. Puram. At 12:00 noon dated 12.07.2012 when I was present in the PS the duty officer handed over to me copy of FIR no. 143/2012 and original tehrir for investigation. Thereafter, I went through the content of copy of FIR and original tehrir. Thereafter, I left for the spot i.e. picket, Sangam cinema Hall R. K. Puram, along-with Ct. Birender and reached there around 12:30pm. At their spot, I met with SI Subhash and Ct. Vinod. SI Subhash informed me about the alleged incident and handed over to me one TATA Sumo Vehicle bearing no. HR-59A-0123 and he also showed me 11 petty of illicit liquor which was kept on the ground and 11 quarter bottle of liquor which was sealed by SC was also kept on the ground. At their spot, I prepared site plan of the place of incident at the instance of Ct. Vinod which is already exhibit at PW-1/D bears my signature at point B. Thereafter, the case property were got deposited the malkahan of the PS by SI Subhash. Thereafter, on 16.07.2012, when I was present in KD Page no. 6 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act colony, R. K. Puram then I received information through second informer regarding the accused who was involved in the present case in the KD colony itself. Thereafter at instance of second informer, I apprehended the accused who after interrogation disclosed his name as Amit @ Sonu S/o Amarnath. Thereafter, I arrested the accused in the present case and prepared his arrest memo and personal search memo which is exhibit as PW-5/A and PW-5/B both bear my signature at point A respectively. Thereafter I also recorded disclosure statement of accused on two separate pages which are exhibit as PW-5/C and PW-5/D both bear my signature at point A respectively. Thereafter on the next day i.e. 17.07.2012 I produced accused before the Hon'ble Court and obtained one day PC remand of accused Amit @ Sonu. During PC remand, I again recorded disclosure statement of accused which is exhibit as PW- 5/E which bears my signature at point A. After PC remand accused was produced before Hon'ble court on 18.07.2012 and he was sent to JC by the order of Hon'ble court. During investigation I sent sample to Excise Department, ITO for chemical analysis and obtained report. Thereafter, I recorded statement of all the witnesses and prepared the chargesheet and filed the same before the concerned court through SHO concerned". Said witness correctly identified the accused, photographs of offending vehicle bearing no. HR-59A-0123 Ex. P3(colly), and illicit liquor Ex. P-1(colly). Seal on the 11 cartoons was not visible when produced in court. Out of total 517 quarter bottles produced, 45 were empty. Said witness was Page no. 7 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act duly cross-examined by ld. counsel for accused.
11. PW-6 Retd. SI Ashok Kumar deposed on oath that "On 12.07.2012, I was posted as MHCM at PS R. K.Puram. At around 06:00pm dated 12.07.2012, SI Subhash Chand gave me an application regarding illicit liquor contained in 11 carboard cartons and each carton was containing 47 quarter bottle. There were sample quarter bottle also which were 11 in number. Every carboard carton was sealed with the seal of 'SC'. Sample quarter bottle was also wrapped with cloth and sealed with seal of 'SC'. Each carboard carton had marking of NV Besto whisky, 180ml. M-29 form was also handed over to me. Seal of 'SC' was handed over to Ct. Vinod in my presence. Vehicle TATA Sumo bearing registration no. HR- 59A-0123 was also parked inside the police station. Thereafter I written all the above mentioned fact in the rojnamcha registered no. 16 of malkahana at serial no. 2335. The photocopy of the register is exhibit as P-2(OSR). On 03.08.2012, I had handed over samply quarter bottles to Ct. Sanjay for submitting sample bottles for examination. On 16.08.2012, result of said examination was received and handed over to IO". Said witness was duly cross- examined by ld. counsel for accused.
12. PW-7 ASI Sh. Virender Kumar deposed on oath that "On 18.07.2012, I was posted at PS R.K. Puram. I along-with Ct. Vinod had picket duty in morning near Sangam Cinema. At about Page no. 8 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act 09:00am, one TATA Sumo Car bearing No. HR 59A0123 was stopped for checking. Accused Sonu was driving the said car. As soon as the car was stopped, he run from the spot. I along-with Ct. Vinod checked TATA Sumo and found 528 quarters of illicit liquor in 11 gatta peti. Label read as NV Group Bestow whisky of 180ml for sale in Arunachal Pradesh only and NV Group was written on cap of quarters. Ct. Vinod informed DO PS R.K. Puram regarding this incident. Thereafter HC Subhash came at spot. He was then informed about the incident. He then pursued investigation. Seizure memo of seized illicit liquor is already Ex. as PW1/B bearing my signature as witness at point C. Seizure memo of TATA Sumo is already Ex. PW-1/C bearing my signature at point C". Said witness correctly identified the accused. Said witness was duly cross- examined by ld. counsel for accused.
13. PW-8 ASI Sanjay deposed on oath that "On 16.07.2012, I was posted at R. K. Puram as Constable. On that day, I was on patrolling duty along-with HC Subhash. On that day, one secret informer told HC Subhash that accused Amit @ Sonu is present in the KD colony. Thereafter, secret informer indicated towards accused and we apprehended him who revealed his name as Amit @ Sonu. HC Subhash arrested him in the present case vide arrest memo and personal search memo already Ex. PW-5/A and Ex. PW-5/B respectively, both bearing my signatures at point B. IO also recorded disclosure statement of accused already Ex. PW-5/C bearing my Page no. 9 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act signatures at point B. IO also recorded supplementary disclosure statements of accused which are already Ex. PW-5/D and Ex. PW- 5/E respectively, bearing my signatures at point A. Thereafter, IO recorded my statement. On 03.08.2012, as per instructions of the IO, I collected 11 samples of illicit liquor which were duly sealed with the seal of "SC" was collected by me from MHCM and I deposited the same vide RC no. 33/21/12 at ITO, Excise Department for chemical examination. I had taken receiving from the ITO, Excise Department and deposited the same to the MHCM. Till the time samples were in my custody, no tampering was done by me or anyone else. My statement was recorded by IO". Said witness correctly identified the accused. Said witness was duly cross- examined by ld. counsel for accused.
14. Prosecution evidence stood closed vide order dated 21.08.2024.
15. After closure of prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C wherein all the incriminating circumstances were put to him which he denied. He pleaded false implication and also false plantation of the case property upon him. He chose not to lead defence evidence.
16. Thereafter, final arguments were heard on behalf of accused as well as Ld. APP for State, Sh. Bhanu Pratap Singh.
Page no. 10 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act
17. In the present case, in order to bring home the guilt of the accused, the prosecution is required to establish beyond reasonable doubt that the accused was in possession of the illicit liquor.
18. Although, sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the accused has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus for the possession of which he is unable to account satisfactorily, this presumption is rebuttable. In the instant case, after going through the complete evidence and records of this case, I am of the view that the accused has successfully rebutted the presumption mentioned above and therefore, deserves to be acquitted in this case for the reasons stated below.
19. Firstly, in the present case, no public witness has been associated with the investigation. No independent witness had been joined either at the time of arrest of the accused or recovery of illicit liquor. The only witnesses to the recovery being police officials, such recovery does not inspire confidence. PW-4, in his cross- examination, deposed that request was made to some public persons to join the investigation, however, none agreed and left the place without disclosing their names and addresses. This explanation Page no. 11 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act tendered by the prosecution witness does not seem to be tenable as neither the details of those public persons have been brought on record nor any legal action was taken against those persons (under relevant sections of law) who declined to assist the police in investigation. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings, when they were available, brings into question the credibility of the prosecution case, reflects adversely on the sequence of events put forward and creates reasonable doubt on the prosecution story. Thus, the chances of false implication, at the instance of the police, cannot be ruled out. Guidance is sought from the case of Anoop Joshi v. State1 wherein it is held that:
"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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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 rigors of law while declining to perform their legal duty to 1 1992 (2) C.C. Cases 314 (HC).
Page no. 12 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act assist the police in investigation as a citizen, which is an offence under the IPC".
20. Secondly, there is nothing on record to prove that the seal with which the petis containing illicit liquor was sealed, was handed over to any independent witness after use. Admittedly, no handing over memo was prepared. The case property was produced in a sealed condition during testimony of PW-5 but seal was not visible. Total 517 quarter bottles were produced out of which 45 were empty. In such circumstances, possibility of tampering with the contents of sealed pulanda cannot be ruled out. It also becomes impossible to establish the connection between the samples, and alleged recovery from the accused. Benefit thereof must go to the accused in light of the judgment of Safiullah v. State2
21. Further, the present case is based entirely on the alleged recovery of illicit liquor from the possession of the accused by police official, namely, PW-1 HC Vinod Kumar, who was on picket checking of vehicles at the given time and place, as per the prosecution story. The police official is under statutory duty to mark his arrival and departure entries in the registers. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials, his presence at the spot cannot be believed.
2 1992 SCC OnLine Del 516.
Page no. 13 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act Reference can be placed upon Rattan Lal v. State wherein it has 3 been observed:
"If the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
22. Lastly, the site plan Ex. PW-1/D, seizure memo of illicit liquor Ex. PW-1/B, and seizure memo of offending vehicle Ex. PW- 1/C bear the number of FIR. The prosecution has not offered any satisfactory explanation as to how number of the FIR has appeared on the site plan Ex. PW-1/D, seizure memo of illicit liquor Ex. PW- 1/B, and seizure memo of offending vehicle Ex. PW-1/C which were allegedly prepared on the spot before registration of the FIR. This implies that either the FIR was registered prior to the alleged recovery or number of the said FIR was inserted in this document after its registration. In both the situations, it seriously impinges the credibility and the veracity of the manner of recovery from the accused, as alleged by the prosecution. Guidance is sought from the case of Lalji Shukla v. State4.
3 1987 (2) Crimes 29.
4 1999 SCC OnLine Del 884.
Page no. 14 of 15 Cr Cases 50789/2016 STATE Vs. AMIT @ SONU 143 /2012 (R.K. Puram), u/s 33/58 of Delhi Excise Act
23. All of the above infirmities expose serious loop holes in the prosecution story and reflect adversely on the veracity of the charge against the accused. The prosecution has failed to prove its case beyond reasonable doubt. Hence accused Amit @ Sonu s/o Sh. Amarnath is acquitted of the offence under Section 33/58 Delhi Excise Act. He is set at liberty.
Announced in the open court Digitally
on 07.09.2024. NEHA
signed by
NEHA PRIYA
Date:
PRIYA 2024.09.07
16:22:42
+0530
(NEHA PRIYA)
Additional Chief Judicial Magistrate-02 New Delhi District/PHC 07.09.2024 It is certified that this judgment contains 15 pages and each page bears my signatures. Digitally signed by NEHA NEHA PRIYA Date:
PRIYA 2024.09.07
16:22:47
+0530
(NEHA PRIYA)
Additional Chief Judicial Magistrate-02 New Delhi District/PHC 07.09.2024 Page no. 15 of 15