Delhi District Court
State vs . Naveen Kumar on 7 January, 2023
IN THE COURT OF MS. ALKA SINGH
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
DLSW020503732018
IN THE MATTER OF :
State Vs. Naveen Kumar
FIR No. 904/2017
U/s 33 Delhi Excise Act
PS : Uttam Nagar
Date of Institution : 13.12.2018
Date of Judgment : 07.01.2023
JUDGMENT
1. Serial No. of the case : 31722/2018
2. Name of the Complainant : ASI Naresh Kumar,
PIS no.28823159, PS Uttam
Nagar
3. Date of commission of offence : 08.12.2017
4. Name of accused person : Naveen Kumar S/o Sharwan Singh, R/o B-672, JJ Colony, Hastsal, Uttam Nagar, Delhi.
5. Offence charged : U/s 33 Delhi Excise Act
6. Plea of accused : Not guilty State Vs. Naveen Kumar FIR No.904/2017, PS Uttam Nagar Judgment dated 07.01.2023 Page No. 1 of 10 Digitally signed by ALKA ALKA SINGH Date:
SINGH 2023.01.07
15:00:36
+0530
7. Ld. APP for the State : Sh. Pankaj Gulia
8. Final Order : ACQUITTED
BRIEF REASONS FOR ORDER:
1. The accused was chargesheeted for committing offences punishable under Section 33 Delhi Excise Act, 2009 (10 of 2010).
2. It has been alleged by the prosecution that on 08.12.2017 at 8.20 pm at Ambedkar Park, Near Dhobi Ghat, JJ Colony, Hastsal, Uttam Nagar, New Delhi, accused was found in possession of illicit liquor i.e. 89 quarter bottles of Impact Grain Whisky for sale in Haryana only without any permit or license, as per seizure memo. Therefore, the present FIR under Sections 33 Delhi Excise Act (herein after referred as DE Act) was registered based on the original rukka, form M-29 was filled and site plan was prepared. After completion of investigation, the charge sheet was prepared and filed in the Court.
3. In compliance of Section 207 Cr.P.C. the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge U/s 33 DE Act was made out against the accused. Accordingly, on 08.04.2019 the charge was framed against accused. The accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case and to prove the charges, prosecution examined three witnesses.
State Vs. Naveen Kumar
FIR No.904/2017, PS Uttam Nagar
Judgment dated 07.01.2023 Page No. 2 of 10
Digitally signed
by ALKA
ALKA SINGH
Date:
SINGH 2023.01.07
15:00:47
+0530
5. PW-1 HC Rakesh Kumar deposed that on 08.12.2017 while he was on patrolling duty alongwith ASI Naresh and they received a secret information regarding illicit liquor at about 8.20 pm and they stayed near Dhobi Ghat, Shani Bazar, when they saw that one person carrying a white plastic bag and upon search the plastic bag was found to contain 89 quarter bottles of illicit liquor and the person revealed his name as Naveen. He deposed that some public persons were asked by ASI Naresh to join the investigation but all of them refused. Thereafter, the seizure memo Ex. PW1/A was prepared by the IO and sample and the case property, both were sealed with the seal of NK, which was given to him after its use. It was further deposed that the tehrir was prepared by IO and was given to him for registration of FIR and original tehrir Ex. PW1/B and the copy of the FIR was handed over to HC Shadilal who had come with him. Thereafter, the accused was arrested by HC Shadilal vide memo Ex. PW1/C and his personal search was conducted vide memo Ex. PW1/D. On production of the case property and the order of its destruction, the same were correctly identified and were Ex. P-1 and PW1/F respectively. Photographs of the case property was Ex. P-2.
In his cross-examination, it was generally questioned about the distance between the police station and the place of occurrence and about the time of their arrival and departure and also if any entries were made regarding the same. It was also stated by the witness that the public persons who were present there at the time of apprehension of the accused, they were also asked to join the investigation but they State Vs. Naveen Kumar FIR No.904/2017, PS Uttam Nagar Judgment dated 07.01.2023 Page No. 3 of 10 Digitally signed by ALKA ALKA SINGH Date:
SINGH 2023.01.07
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did not join and therefore, their statement was also not recorded by the IO.
6. As PW2 Ram Singh, Chemical Examiner was examined who deposed that he prepared the report in the present case and the report dated 02.04.2018 was Ex. PW2/A. He was not cross examined despite opportunity.
7. As PW3 HC Shadilal was examined who deposed that on 08.12.2017 the present case was marked to him and he went to the spot alongwith HC Rakesh where he met ASI Naresh who had apprehended the accused and thereafter the custody of the accused and case property was handed over to him. He deposed that he prepared the site plan Ex. PW3/A and recorded the disclosure statement of the accused and also arrested the accused and conducted his personal search memo. The witness correctly identified the case property i.e. the sample bottles of the abovesaid liquor which was already Ex. P-1.
In his cross examination he was generally questioned about his arrival and departure timing and the conveyance used by him. It was also stated that despite his requests none of the public persons joined the investigation as witness. All the adverse suggestions were thereafter denied.
8. The record transpires that without admitting the content therein accused admitted the DD no.50B dated 08.12.2017 Ex.X-1, in terms of section 294 Cr.P.C. Accordingly, the formal proof of these documents were dispensed with.
State Vs. Naveen Kumar
FIR No.904/2017, PS Uttam Nagar
Judgment dated 07.01.2023 Page No. 4 of 10
Digitally signed
by ALKA
ALKA SINGH
Date:
SINGH 2023.01.07
15:01:22
+0530
9. Since, no other witness was examined by prosecution, hence, the PE was closed and the statement of the accused was recorded under Section 313 Cr.P.C. to allow him to explain the incriminating circumstances appearing in evidences against him wherein the accused denied the allegations levelled against him and pleaded innocence on the ground that he has been falsely implicated.
10. Since the accused chose not to lead any evidence in his defence, therefore, DE was closed and the matter was adjourned for final arguments.
11. Final arguments were thereafter heard on behalf of state as well as the accused.
12. It was argued by the defence counsel that there are many contradictions in the version of the IO and other police witnesses regarding the arrest of the accused, also no eye witness is there in the present case nor any details of the vehicle is available by which the IO reached at the spot. It was also argued that DD entry does not mention the departure of the IO and hence, it all indicates that all accused have been falsely implicated in the present case.
13. Per-contra, it was argued by the Ld. APP for the State that all the material witnesses have clearly identified by the accused and no evidence has been produced by the defence, to show that the alleged recovery was implanted on them nor could they show that they had the legal permit with them for carrying the liquor.
State Vs. Naveen Kumar
FIR No.904/2017, PS Uttam Nagar
Judgment dated 07.01.2023 Page No. 5 of 10
Digitally signed
by ALKA
ALKA SINGH
SINGH Date:
2023.01.07
15:01:41 +0530
14. I have heard the arguments addressed by Ld. APP for State and Ld. Counsel for accused and carefully perused the record.
15. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
16. In order to sustain conviction U/s. 33 DE Act the prosecution is required to prove the following ingredients:-
(i) The accused was found in the possession of the illicit liquor; and
(ii) He was possessing the same without any licence/permit.
17. For proving the offence against the accused, prosecution is required to prove that the illicit liquor was recovered from the possession of the accused. The FSL report dated 02.04.2016 reflects that the sample bottle was tested positive for ethyl alcohol. However, there is no report to suggest that the remaining bottles, which were allegedly recovered from the accused contained illicit liquor. There is nothing on record to show that each of the bottles were properly sealed or were carrying authentic identification of place of manufacturing/ packing/ origin. Thus, the bottle which was examined in the FSL cannot be stated to contain the representative liquid of all the remaining bottles. Hence, the FSL result in respect of said bottle State Vs. Naveen Kumar FIR No.904/2017, PS Uttam Nagar Judgment dated 07.01.2023 Page No. 6 of 10 Digitally signed ALKA by ALKA SINGH Date:
SINGH 2023.01.07 15:01:55 +0530 cannot be conclusively held to be equally applicable on the liquid contained in the remaining bottles which were not examined. Thus, there is no evidence on record to show that the liquid contained in the remaining bottles, other than the sample bottle, was in fact liquor.
18. As per the case of the prosecution, the seal after use was given to HC Rakesh Kumar who was himself the police person, accompanying the IO and was not given to any independent public person which creates a doubt on the case property as whether the same were intact and not tampered with. In the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para 7 as :
"The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
19. Further it was held in Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15 .......................... In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same State Vs. Naveen Kumar FIR No.904/2017, PS Uttam Nagar Judgment dated 07.01.2023 Page No. 7 of 10 Digitally signed by ALKA ALKA SINGH SINGH Date:
2023.01.07 15:02:06 +0530 person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case".
20. Chapter 22 Rule 49 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 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 personality by signature or seal. 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 their presence at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
21. The alleged incident pertains to have occurred on 08.12.2017, at Ambedkar Park, Near Dhobi Ghat, JJ Colony, Uttam Nagar. The said spot is surrounded by residential houses, shops as well as at the time of incident the place was occupied by local/ independent witnesses as shown in site plan Ex.PW3/A. The prosecution has failed to examine any public witness from spot, therefore, the version of the prosecution State Vs. Naveen Kumar FIR No.904/2017, PS Uttam Nagar Judgment dated 07.01.2023 Page No. 8 of 10 Digitally signed by ALKA ALKA SINGH SINGH Date:
2023.01.07 15:02:15 +0530 has remained uncorroborated by an independent material witness. The witnesses that are examined by the prosecution in the present case are police witnesses, who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine and sincere efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability. In view of above discussion, it is duly established that genuine efforts were not made by the IO of the case to join the public witness(es). The non joining of the public witness creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration; 1987 CC 585 Delhi High Court.
22. Keeping in view the fact that the version of prosecution witness has remained uncorroborated by any other independent witness regarding the alleged recovery of illicit liquor, it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that-
"Prosecution case resting solely on the testimony of head constable and no independent witness examined-prosecution story appearing improbable and unnatural. Held that the prosecution case can not be said State Vs. Naveen Kumar FIR No.904/2017, PS Uttam Nagar Judgment dated 07.01.2023 Page No. 9 of 10 Digitally signed by ALKA ALKA SINGH SINGH Date:
2023.01.07 15:02:28 +0530 to be free from reasonable doubt and the accused is liable to be acquitted".
23. In the light of above facts, the prosecution has failed to discharge the onus placed upon it and so have failed to prove its case beyond any reasonable doubt. Accordingly, benefit of doubt is given to the accused Naveen Kumar S/o Sharwan Singh is acquitted for the offence U/s 33 Delhi Excise Act.
24. Ordered Accordingly.
Pronounced in open Court, on this Day of 7th January, 2023. This judgment consists of 10 signed pages.
ALKA Digitally signed by ALKA SINGH SINGH Date: 2023.01.07 15:02:44 +0530 (ALKA SINGH) Metropolitan Magistrate-08/South-West Dwarka Courts: New Delhi State Vs. Naveen Kumar FIR No.904/2017, PS Uttam Nagar Judgment dated 07.01.2023 Page No. 10 of 10