Delhi District Court
State vs Annu Kir Etc on 25 June, 2024
FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
PATIALA HOUSE COURT,
NEW DELHI
Presided over by- Ms. Isha Singh, DJS
Cr. Case No. -: 48225/2016
Unique Case ID No. -: DLND02-001842-2013
FIR No. -: 62/2013
Police Station -: SAGARPUR
Section(s) -: 33 Delhi Excise Act
In the matter of -
STATE
VS.
ANNU KIR @ VINEET
S/o Sh. Pratap Kir @ Chander Kant,
R/o H. No. B-94/B, Hastal Gaon, Uttam Nagar,
New Delhi.
RAJESH @ JAGGI
S/o Sh. Kalu Ram
R/o H. No. RZ-305, Brahampuri,
Pankha Road, Sagarpur, New Delhi.
.... Accused
1. Name of Complainant : Ct. Sachin Kumar
Annu Kir @ Vineet and Rajesh @
2. Name of Accused :
Jaggi
Offence complained of or
3. : 33 Delhi Excise Act
proved
4. Plea of Accused : Not guilty
Page no. 1 / 17
FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur
5. Date of commission of offence : 18.03.2013
6. Date of Filing of chargesheet : 07.06.2013
7. Date of Reserving Order : 30.05.2024
8. Date of Pronouncement : 25.06.2024
Accused Rajesh @ Jaggi is acquitted.
9. Final Order : Proceedings qua accused Annu Kir
abated on 27.03.2024
Argued by -: Sh. Ankit Srivastava, Ld. APP for the State.
Sh. Pradeep Nagar, Ld. Counsel for the accused Rajesh @ Jaggi.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution is that on 18.03.2013, at about 04:00 PM, at Durga Park, Near Solanki Public School, Sagarpur, New Delhi, within the jurisdiction of PS Sagarpur, accused Rajesh @ Jaggi alongwith accused Annu Kir were found in possession of one plastic katta each containing 120 quarter bottles in each katta filled with illicit liquor, with each bottle having label of '9 Star Deluxe Whiskey for sale in Delhi only, 180 ml' and that, the accused persons were found in possession of such illicit liquor without any licence or permit, thereby, committing an offence punish-
able u/s 33 of Delhi Excise Act, 2009.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the ac- cused persons were summoned to face trial.
Page no. 2 / 17FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur
3. On their appearance, copies of charge-sheet were supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). During the course of the trial, accused Annu Kir passed away and accordingly, proceedings qua accused Annu Kir were abated on 27.03.2023. However, on finding a prima facie case against the accused Ra- jesh Jaggi, charge under section 33 of Delhi Excise Act, 2009 was served upon accused Rajesh Jaggi to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
4. To prove its case beyond reasonable doubt against the accused, the prosecution led the following oral and documentary evidence.
ORAL EVIDENCE HC Sachin Kumar (witness to the investi-
PW 1 :
gation)
HC Heera Lal (witness to the investiga-
PW 2 :
tion)
PW 3 : ASI Raj Kumar (IO)
PW 4 : HC Sunil Kumar [MHC(M)]
DOCUMENTARY EVIDENCE
Ex. PW1/A : Complaint of the complainant
Ex. PW1/B : Seizure memo of case property
Ex. PW1/C : Site plan
Ex. PW1/D : Arrest memo of accused Rajesh @ Jaggi
Arrest memo of accused Annu Kir @ Vi-
Ex. PW1/E :
neet
Personal search memo of accused Rajesh
Ex. PW1/F :
@ Jaggi
Ex. PW1/G : Personal search of accused Annu Kir @
Page no. 3 / 17
FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur
Vineet
Ex. PW3/A : Form M-29
Ex. PW3/B : Rukka
Ex. PW4/A
: Mud No. 570/13 in Register No. 19
(OSR)
Photocopy of Road Certificate No.
Mark-PW4/B :
12/21/13
GD No. 32A regarding non-preserving of
Ex. PW4/C : the sample at the time of destruction of
case property.
Order permitting destruction of case
Ex.P1 (Colly.) :
property
Photograph of plastic katta containing
Ex. P2 :
case property
DOCUMENTS ADMITTED UNDER SECTION
294 CrPC
Ex. A1 : FIR No. 62/2013, PS Sagarpur
Ex. A2 : Excise Report dated 28.03.2013
Ex. A3 : DD No. 22A dated 18.03.2013
4.1 PW1/Complainant HC Sachin Kumar deposed on oath that while
he was on patrolling duty alongwith Ct. Hira Lal on 18.03.2013, he met with a secret informer who informed that two individuals, who were involved in the business of illicit liquor, would be walking towards Dayal Park via Solanki Pub- lic School and could be caught red-handed alongwith illicit liquor, if a raid is conducted. He stated that based upon the secret information, he alongwith Ct. Hira Lal and the secret informer, reached at the Solanki Public School on 18.03.2013 at about 4pm, where they noticed two individuals carrying one plas- tic katta each, on their heads and upon identification by the secret informer, they apprehended them and checked their plastic kattas, which were found to contain illicit liquor. He stated that the recovery of illicit liquor was informed at PS Page no. 4 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur Sagarpur, pursuant to which IO/HC Raj Kumar reached at the spot. He stated that he handed over both the plastic kattas filled with quarter bottles of illicit liquor to the IO and also produced both the accused. He stated that the IO recorded his complaint and also asked four to five public persons to join the in- vestigation, however, they all left the spot, citing their personal difficulties. He stated that IO/HC Raj Kumar opened and checked both the plastic kattas, each of which were found to contain 120 quarter bottles of illicit liquor with all such bottles having the label of '9 Star Deluxe Whiskey for sale in Delhi only 180 ml' (A total of 240 quarter bottles of illicit liquor were recovered.) He stated that IO/HC Raj Kumar drew out one quarter bottle as a sample from each of the kat- tas, and the remaining bottles were left inside the said plastic kattas. He stated that the sample of quarter bottles and the kattas were tied separately and duly sealed with the seal of 'RK'. He stated that after sealing the case property, the seal of 'RK' was handed over to him by the IO. He stated that both, the samples as well the remaining property in kattas were duly seized. He stated that the IO filled in Form M-29, prepared the rukka on the basis of his complaint and sent the same via him, to the PS for the registration of FIR. He stated that pursuant to the registration of the FIR, the IO recorded the disclosure statements of the ac- cused persons, arrested the accused persons and conducted their personal search. Thereafter, the case property was deposited in malkhana, PS Sagarpur. As ac- cused Annu Kir had passed away and proceedings qua him had abated on 27.03.2023, therefore, PW1/HC Sachin Kumar correctly identified only the ac- cused Rajesh Jaggi as well as the photograph of the two plastic kattas bearing the case FIR details. No sample of case property was produced for identification as the same was disposed of.
During his cross-examination, PW1/Complainant HC Sachin Ku- mar admitted that the spot from where illicit liquor was recovered from posses- sion of the accused was a residential area, where public persons were available. He admitted that no notice to join the recovery proceedings was given to any of Page no. 5 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur the public persons, who refused to join the investigation. He stated that no seal handing over memo was prepared by the IO at the time of handing over the seal of 'RK' to him. He admitted that no seal is visible on the kattas contain- ing case property, captured as Ex. P2. He also failed to recall the DD number view which he and Ct. Heera Lal were patrolling. He denied the suggestion that the accused has been falsely implicated.
4.2 PW2/ IO ASI Raj Kumar deposed that on 18.03.2016, upon receiv- ing information vide DD No. 22A regarding recovery of illicit liquor, he reached near Solanki Public School, Durga Park, where Ct. Sachin and Ct. Heera Lal were found present, who produced two plastic kattas containing illicit liquor, re- covered from accused Rajesh Jaggi and Annu Kir. He recorded the complaint of Ct. Sachin and also asked four to five public persons to join the investigation, however, they all left the spot, citing their personal difficulties. He further stated that he opened and checked both the plastic kattas recovered from both the ac- cused, which were found to contain 120 quarter bottles of illicit liquor each, with each bottle having label of ' 9 Star Deluxe Whiskey for sale in Delhi only 180 ml' (A total of 240 quarter bottles of illicit liquor were recovered.) He stated that two quarter bottles were drawn as samples from the kattas and the remain- ing bottles were left inside the kattas. He stated that he filled the form M-29. He stated that the case property including the samples and the katta containing the remaining bottles of illicit liquor were duly seized by him and sealed with the seal of 'RK'. He stated that after the seizure, the seal was handed over by him to Ct. Sachin. He stated that thereafter, rukka was prepared by him upon the basis of the complaint of Ct. Sachin and the said rukka was sent to PS, via Ct. Sachin, for the registration of FIR. He stated that pursuant to the registration of the FIR, site plan was prepared. He stated that he also arrested both the accused, con- ducted their personal search and recorded their disclosure statements. There- after, the case property was deposited in malkhana, PS Sagarpur. He stated that Page no. 6 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur on 21.03.2013, upon his directions, Ct. Sachin obtained the samples of quarter bottles so seized in the present case from MHC(M) and got it deposited with Ex- cise Control Laboratory for it's chemical examination. He stated that on 28.03.2013, he had obtained the excise report from Excise Control Laboratory and after completion of investigation, he prepared the charge-sheet and submit- ted the same before the court. As accused Annu Kir had passed away and pro- ceedings qua him had abated on 27.03.2023, therefore, PW1/HC Sachin Kumar correctly identified only the accused Rajesh Jaggi as well as the photograph of the two plastic kattas bearing the case FIR details . No sample of case property was produced for identification as the same was disposed of.
During his cross-examination, PW2/ IO ASI Raj Kumar admitted that the spot from where illicit liquor was recovered from possession of the ac- cused was a residential area, where public persons were available. He admitted that no notice to join the recovery proceedings was given to any of the public persons, who refused to join the investigation. He further admitted that no seal handing over memo was prepared by him, at the time of handing over the seal to Ct. Sachin. He admitted that no seal on the katta containing the case property, is visible in the photograph of the plastic katta (Ex. P2).
4.3. PW4/ HC Sunil Kumar [MHC(M)] deposed that the case property in the present case was received at PS Sagarpur on 18.03.2013, consisting of two plastic kattas filled with quarter bottles of illicit liquor, which was recorded vide Mud no. 570/13 in Register no. 19. The samples were sent for chemical ex- amination and the case property was destroyed vide orders of the Assistant Commissioner of Police. He stated that no sample of the case property was pre- served.
During his cross-examination, PW5/ HC Sunil Kumar [MHC(M)] admitted that he was not the MHC(M), PS Sagarpur, at the time when either the case property was deposited or destroyed. He denied the suggestion that the Page no. 7 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur Road certificate is a forged and fabricated document.
Rest of the prosecution witnesses supported the case of the pros- ecution and proved the documents mentioned in the table above.
Initially, PE was closed on 18.04.2024 at request of Ld. Substi- tute APP for the State and thereafter, pursuant to application u/s 311 Cr.P.C. being moved on behalf of Ld. APP for the State, PE was re-opened and state- ment of PW5 was recorded. Thereafter, vide order dated 18.05.2024, PE was closed at the request of Ld. APP for State.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
5. On 14.05.2024 and 30.05.2024, statement and supplementary state- ment of accused Rajesh Jaggi u/s 313 Cr.PC was recorded, wherein he denied the case of the prosecution and stated that he has been falsely implicated in the present case. He chose not to lead defence evidence and hence, DE was closed and matter was fixed for final arguments.
ARGUMENTS-
6. During final arguments, it was argued by Ld. APP for the State that the case against the accused stood proved in view of the evidence led by the prosecution. Accordingly, he argued that accused deserved to be convicted for the offences u/s 33 Delhi Excise Act and the relevant provision of Delhi Excise Act.
On the other hand, the Ld. defence counsel argued that the prosecution has failed to bring out a case against the accused, especially in view of the fact that no independent public witnesses were made a part of the search and seizure of the case property, despite the fact that the alleged illicit liquor was recovered from a public place. It has been argued that the case property was falsely planted upon the accused and as such, he is liable to be acquitted.
Page no. 8 / 17FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur ANALYSIS AND DECISION-
7. The case of the prosecution is that 240 quarter bottles of illicit liquor with each bottle having label of '9 Star Deluxe Whiskey for sale in Delhi only 180 ml' were seized, out of which 120 quarter bottles were recovered from accused Rajesh @ Jaggi and the remaining 120 quarter bottles were recovered from the accused Annu Kir (since deceased). Since proceedings qua accused Annu Kir have abated on 27.03.2024, on account of his passing away, therefore, the case of the prosecution remains only qua accused Rajesh @ Jaggi for the recovery of 120 quarter bottles of illicit liquor with each bottle having label of '9 Star Deluxe Whiskey for sale in Delhi only 180 ml' . Accordingly, for convenience, reference hereinafter to the word 'accused' shall mean accused Rajesh @ Jaggi, unless specified otherwise.
8. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to establish the offence under Section 33 of the Excise Act, the prosecution must fulfil all the essential ingredients of the offence. Section 33 of the Excise Act, 2009 is reproduced for ready reference-
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act-- (a) manufactures, imports, exports, transports or removes any intoxicant; (b) constructs or works any manufactory or warehouse; (c) bottles any liquor for purposes of sale; (d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari; (e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor; (f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to one lath rupees"Page no. 9 / 17
FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur
9. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evi- dence that points towards the guilt of the accused.
10. In the case such as the present one, the fact of recovery, seizure, sampling and the chain of custody is of utmost importance to bring home the guilt of an accused. The case of the prosecution is that 120 quarter bottles of illicit liquor with each bottle having label of ' 9 Star Deluxe Whiskey for sale in Delhi only 180 ml' were recovered from the accused Rajesh @ Jaggi. Recovery of the alleged illicit liquor which the accused was supposedly in possession of, without a valid license, was effected, in a residential area and the time of recovery was 04:00 PM, however no public person was made a witness to the said recovery. It is not disputed by the prosecution witnesses on whose testimony the prosecution seeks to rely, that at the time of recovery of the illicit liquor, there were members of general public available at the spot from where recovery was made, however it is both apparent and surprising that no independent witness was made to join the proceedings by the police.
11. The importance of joining public persons in the recovery proceedings has time and again been emphasised by the judicial pronouncements. At this juncture, reference is made to the judgement of Roop Chand v. State of Haryana 1989 SCC OnLine P&H 539 : (1989) 2 RCR (Cri) 504, wherein it has been observed:
"4. It is well settled principle of 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 Page no. 10 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join.
5. It is a very 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 noted down their names and addresses etc. and would 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 pubic is an after thought and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful."
12. Reliance is placed upon the judgement of State of Punjab v. Balbir Singh, AIR 1994 SC 1872, wherein the Hon'ble Supreme Court has observed that:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
13. Burden therefore, lies on the prosecution to establish that the association of public witnesses was not possible in the facts and circumstances of the case. However, in the present case, nothing in the testimony of prosecution witnesses suggests that sincere efforts were made by them to involve independent witnesses in the process of recovery. In the present case, there was no lack of time and opportunity to associate some independent Page no. 11 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. As per documentary evidence, the plastic katta containing illicit liquor was recovered at 04:00 PM. The rukka Ex. PW3/B was prepared at 05:40 PM. The FIR (Ex.A1) was registered at 06:00 PM and the accused was arrested at 07:15 PM. Therefore, it is clear that the police officials were not hard pressed for time as they remained at the spot from atleast 04:00 PM till atleast 07:15 PM. However, despite being at the spot for more than two hours, they did not join any public person in the investigation. IO has even admitted the presence of public witnesses at the spot and yet no independent public witnesses, in stark violation of Section 100(4) CrPC, were joined in the investigation at the time of alleged recovery. IO did not even mention the names or addresses of those persons who refused to join the recovery proceedings. No explanation has come on record to show whether any notice was served upon the public witnesses requiring them to join the proceedings or to face action under Section 187, Indian Penal Code.
14. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the police in the present case cannot be ruled out. Reliance is placed upon the Judgement of the Hon'ble Supreme Court in case of Hemraj vs State of Haryana (AIR 2005 SC 2110) wherein it was observed that, "the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case."
15. The present FIR has been registered on the information of PW1/HC Sachin, whose version is that while he was on patrolling duty alongwith Ct. Hira Lal on 18.03.2013 at about 4 pm, he had apprehended the accused Rajesh Jaggi and Annu Kir (since deceased) carrying illicit liquor. Pertinently, no DD entry has been tendered into evidence regarding the Page no. 12 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur factum of patrolling duty of PW1/HC Sachin on the date of the incident. In this regard, as per the mandatory provision of the Punjab Police Rules, DD entry prior to departure and after arrival is required to be lodged in the dairy of the police station, by each police official. Rule 49, Chapter 22 of the Punjab Police Rules, 1934 is reproduced 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 posted at the police station of elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on the arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal."
In this case, the failure to recall the DD number vide which Ct. Sachin and Ct. Hiralal were on patrolling duty is clear from the cross-examination of Ct. Sachin. Since public persons were not joined in the investigation, the departure entry of PW1/HC Sachin regarding his patrolling duty on the date of incident and the time when recovery of illicit liquor was effected from th e possession of the accused, becomes a vital piece of evidence. However, no such daily diary entry regarding departure of PW1/HC Sachin or PW2/HC Hiralal is present on record. Thus, there is no documentary evidence to corroborate the version of PW1/HC Sachin or PW2/HC Hiralal.
16. Further, as per the testimony of the prosecution witnesses, PW3/ IO ASI Raj Kumar deposed that on 18.03.2016, upon receiving information vide DD No. 22A regarding recovery of illicit liquor, he reached near Solanki Public School, Durga Park, where Ct. Sachin and Ct. Heera Lal were found present, who produced two plastic kattas containing illicit liquor, recovered from accused Rajesh Jaggi and Annu Kir (since deceased). He further stated that he opened and checked both the plastic kattas recovered from both the accused, which were found to contain 120 quarter bottles of illicit liquor each, with each Page no. 13 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur bottle having label of '9 Star Deluxe Whiskey for sale in Delhi only 180 ml' (A total of 240 quarter bottles of illicit liquor were recovered.) He stated that two quarter bottles were drawn as samples from the kattas and the remaining bottles were left inside the kattas. He stated that the case property including the samples and the katta containing the remaining bottles of illicit liquor were duly seized by him and sealed with the seal of 'RK'. He stated that after the seizure, the seal was handed over by him to Ct Sachin. In this regard, there is no separate seal handing over or seal taking memo on record. Thus, the case property has been transferred from one official to another, however, no DD entry has been made with regard to the same. Further, the seal remained with the junior police official as, it is not the case of the prosecution that the seal was handed over to any independent person after use. Pertinently, there is no documentary evidence to show if the seal was deposited in the malkhana, so that the same was outside the reach of the IO/other police officials. As per the testimony of prosecution witnesses, only the case property was deposited in the malkhana and there is no entry of deposit of the seal. What was the fate of the seal remains unexplained. In such circumstances, the possibility of interference or tampering of the seal and the contents of the seized case property cannot be ruled out. Reliance is placed upon the judgement of the Hon'ble High Court of Delhi in the case of Safiullah v. State (Delhi Admn.) 1992 SCC OnLine Del 516 :(1993) 49 DLT
193. Therefore, it is safe to conclude that the prosecution has NOT been able to prove safe and tamper-proof custody of the case property in the present case.
17. It is also to be noted that PW1/HC Sachin has deposed that after intimation of recovery of illicit liquor was sent to the police station, the IO came to the spot, took out the illicit liquor and prepared the seizure memo. He also sealed the remaining property. Thereafter, the rukka was handed over to Ct. Sachin for registration of FIR. PW3/IO ASI Raj Kumar has also deposed on similar lines. In the consistent version of the prosecution witnesses regarding the Page no. 14 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur chronology of events, the seizure memo Ex. PW1/B was prepared before the registration of the FIR. However, it is observed that the seizure memo contains the description and number of the FIR. If the FIR was not in existence at the time of preparation of seizure memo than it is a open glaring question as to how the FIR number surfaced on Ex. PW1/B. This puts the genuineness of the seizure memo Ex. PW1/B under a cloud of suspicion and gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the illicit liquor or number of the said FIR was inserted in the seizure memo after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the case property in the manner alleged by the prosecution. Reliance is being placed upon the judgment of Hon'ble High Court of Delhi in the case of Giri Raj v. State, 1999 SCC OnLine Del 1030. That being said, the benefit arising out of a doubtful recovery of case property must necessarily go to the accused.
18. Moreover, in the considered opinion of this court, even the identifi- cation of the case property is not established. It is stated by the prosecution that the case property has been destroyed on 19.11.2018 as per the directions of the Assistant Commissioner (Excise) contained in order bearing no.F.Conf./ 2018/1244-45,5187-88 & 6038-39 and dated 11.05.2018, 18.10.2018 & 16.11.2018. In this regard, even though Section 60 of the Delhi Excise Act pro- vides that non-production of case property does not affect the conviction, how- ever, at the same time, the provision also lays down that samples and photo- graphs of the confiscated property are to be preserved to meet evidentiary re - quirements. During the examination of prosecution witnesses, no sample of the case property was produced, for the purposes of identification, as the same was stated to be destroyed/disposed of. Further, only one photograph capturing the two plastic kattas, in unsealed condition, supposedly containing the case prop- erty/ illicit liquor was shown to the witnesses for the purposes of identification Page no. 15 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur of case property. It is pertinent to mention that no photograph of the entire lot of case property or any video recording as to the destruction of the case property was produced by the prosecution. Further, it stands admitted by prosecution wit- nesses in their cross-examination that the plastic katta in photograph Ex. P2, re- portedly containing case property does not bear any seal. In such circumstances, the standard of proof beyond reasonable doubt, cannot be said to be met. Ac- cordingly, the identification of the case property is not established and this fact becomes fatal to the case of prosecution, going to its roots.
19. In my opinion, the circumstances mentioned above are sufficient to punch holes in the version of the prosecution. The case of the prosecution can- not be said to be proved on the requisite threshold. Therefore, considering the above discussion, the inevitable conclusion is that the prosecution has failed to prove beyond reasonable doubt that illicit liquor was recovered from the posses- sion of the accused. While coming to this conclusion, this Court is also con- scious of the presumption enshrined under Section 52 of the Delhi Excise Act. However, the same is not applicable in the present case as the recovery from possession of the accused, which is the condition precedent for invoking the pre- sumption, is not proved in the present case.
CONCLUSION
20. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 33 of the Excise Act beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution. The recovery of the illicit liquor from the possession of the accused, which was the essential ingredient of the offence, is also highly doubtful. Other inconsistencies in the version of the prosecution have crumbled the whole case of the prosecution.
21. Resultantly, the accused Rajesh Jaggi s/o Sh. Kallu Ram is entitled Page no. 16 / 17 FIR No.62/2013 (State vs. Annu Kir & Anr.) PS Sagarpur to benefit of reasonable doubt and is hereby found not guilty. He is ACQUITTED of the offence under Section 33 of the Delhi Excise Act, 2009.
Digitally signedISHA by ISHA SINGH Date:
Announced in the presence of SINGH 2024.06.25
17:42:30 +0530
the accused in open court (Isha Singh)
MM-03/PHC/NDD/25.06.2024
Certified that this judgment contains 17 pages and each page bears my signature.
Digitally signed by ISHA ISHA SINGH Date:
SINGH 2024.06.25 17:42:38 +0530 (Isha Singh) MM-03/PHC/NDD/25.06.2024 Page no. 17 / 17