Delhi District Court
State vs Mangal on 29 February, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-WEST),
DWARKA COURTS, NEW DELHI
Presided by: Sh. Nitesh Goel
State Vs Mangal
FIR No. 703/20
PS Vikas Puri
U/S 33/38 Delhi Excise Act.
DLSW 02-048542 2021
Date of institution : 06.10.2021
Date of reserving : 26.02.2024
Date of pronouncement : 29.02.2024
State Represented by : Sh. Digvijay Singh Ld. APP
JUDGMENT
a) C.I.S. Number 12755/21
b) Date of commission of offence 03.11.2020
c) Name of the complainant Ct Jitender
d) Name, parentage and address Mangal s/o Sh. Kailash r/o
of the accused House no. A 393 JJ Colony
Shiv Vihar Uttam Nagar
Dwarka
e) Offence complained of Section 33/38 Delhi Excise Act.
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 29.02.2024.
BRIEF REASONS FOR THE JUDGMENT
1. Brief factual matrix of the present case is that on 03.11.2020 at about 9:20 am on the door of Jhugi no. 167/40 Indira Camp no. 4 Vikas Puri, Delhi within the jurisdiction of PS Vikas Puri accused was found in possession of 384 Quarter State Vs Mangal FIR No. 703/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 1 bottles of illicit liquor without any permit or license. Accused is alleged to have committed offence U/S 33/38 Delhi Excise Act.
2. Chargesheet was filed and copy of the same was supplied to the ac- cused as per mandate of Section 207 Cr.PC. Charge was framed against the ac- cused for the offence under Section 33/38 Delhi Excise Act vide order dated 02.06.2022 to which he pleaded not guilty and claimed trial.
3. PW1 HC Jitender has deposed that on 03.11.2022 he was posted at PS Vikas Puri as Ct. On that day he was on petrolling duty in beat no. 3 of PS Vikas Puri at about 9:00 am he reached at Jhuggi no. 167/40 Indira Camp no. 4 Vikas Puri, Delhi with red and white colour carton boxes were lying in front of door of Jhuggi and saw one person whose name he came to know as Mangal s/o Kailash r/o A 393 JJ Colony, Uttam Nagar aged 27 years old was seen picking and putting down the carton box inside the jhuggi. Upon suspicious he apprehended the said person and upon checking he found quarter bottles of illicit liquor were filled in the cartons box. Upon counting 8 carton boxes of illicit liquor were found there. He shared the information to his DO PS Vikas Puri through telephone and said to send IO at the spot. IO HC Rajesh Kumar reached at the spot and he pro- duced 8 carton box along with apprehended person. IO recorded his statement vide Ex. PW 1/A. IO asked four five public persons to join the investigation but none of them agreed and left the place without disclosing their names and ad- dresses. Without wastage of time, IO checked the eight carton boxes and found Episode Gold Whisky distiled blended and bottled by ADS Spirit Pvt. Ltd. Village Bhutani, Tehsil Bari District Jajhhar Haryana 124201 48 x 180 ML were written. IO marked P 1 to P 8 on each carton boxes and upon counting IO found 48 quarter bottles of the said whisky in each carton box. The black colour of cap were on each quarter glass bottle of illicit liquor and a white colour chit was attached. IO took one quarter bottle as sample from carton box Mark P1. IO tied mouth of the State Vs Mangal FIR No. 703/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 2 sample with white colour cloth having seal of seal RK. IO put 2 - 2 carton boxes into four white plastic kattta. IO tied the mouth of plastic katta with white piece of cloth and sealed with the seal of RK. IO seized the sample as well as remaining liquor vide Ex. PW 1/B. IO filled M 29 form at the spot and handed over the seal after use vide Ex. PW 1/C. IO prepared rukka and handed over to him for registra- tion of FIR. He went to the PS and got the FIR registered. He came back at the spot and handed over copy of FIR and rukka to IO. IO prepared site plan of place of recovery at his instance vide Ex. PW 1/D. IO interrogated the accused and recorded his disclosure statement vide Ex. PW 1/E. Accused was arrested by the IO vide arrest memo Ex. PW 1/F. Personal search of accused was also con- ducted vide memo Ex. PW 1/G. They shifted the accused and case property to PS after conducting his medical investigation. Accused was produced before the court from where he was sent to JC for 14 days. Witness correctly identified the ac- cused. Case property was deposited with Makhana of PS along with copy of seizure memo, form M 29 and relevant documents. Witness identified the case property vide Ex. P-1 Colly.
During cross examination he stated that finally he left the spot at about 2:00 pm after completion of investigation. He do not remember the registra- tion number of vehicle in which they shifted the case property to PS from the spot in a four wheeler vehicle. In the said vehicle IO went to the PS and along with one driver. He took the rukka to the PS at about 12:20 pm for registration of FIR on the private motorcycle by taking lift and he came back to the spot at about 12:45 pm. On another two wheeler vehicle which belongs to another public persons. There were residential houses and shops near the place of incident. Only seizure memo and form M 29 of case property was prepared by the IO prior to prepara- tion of rukka. IO came to the spot at about 9:30 am on motorcycle. IO called the four wheeler vehicle from the PS. He do not remember arrival and departure DD entry in the present case. IO had not prepared the returning memo of seal. IO had not inquired about the source of illicit liquor from where accused obtained the same. IO did not join any independent witness in the investigation. IO brought State Vs Mangal FIR No. 703/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 3 plastic kattas from the nearby shop. He cannot tell from where be brought the same. He returned the seal at about 3:00 pm. The information regarding arrest of accused was given to his wife and she came to the spot. The signature of the wife of accused was taken by the IO.
4. PW 2 HC Rajesh has deposed on the lines of PW 1. He prepared M 29 form vide Ex. PW 2/A. He prepared rukka vide Ex. PW 2/B. During cross examination he stated that he reached at the spot at about 9:30 am. He left the spot at about 2:00 pm after completion of investigation. He went to the spot on his private vehicle but he do not remember the registration number of the same. He do not remember the registration number of vehicle in which they shifted the case property to PS from the spot in a four wheeler vehicle. They had taken the vehicle on rent by him. He had paid the fare but the same was not refunded from the department. He admitted that place of incident is a residen- tial area. He admitted that notice was served to any such public person to join the investigation. He used anroid phone however he had not clicked the photographs or video graph of the spot and the case property. No DD entry was made at the time of arrival and departure. Volt. DD no. 23 A was handed over to him by the DO. Ct. Jitender taken the Tehrir at about 12:20 pm on his motorcycle and came back to the spot at 1:15 pm on motorcycle. The information of arrest was given to the wife of accused and she did not came at the spot. He recorded the statement of witnesses at the spot. He denied that the case property has been falsely planted upon the accused. He denied that no recovery has been effected from the accused. He denied that all the documents were prepared while sitting in the PS. He denied that he had not done fair investigation in the present case.
5. PW 3 HC Devender has proved entry no. 2762 dated 03.11.2020 vide Ex.PW3/A(OSR). He also proved the entry number 198/21/20 dated 24.12.2020 vide Ex.PW3/B(OSR).
State Vs Mangal FIR No. 703/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 4 During cross examination he admitted that he was not the MHCM on 03.11.2020 when case property was deposited in malkhana by HC Rajesh Kumar. He admitted that he was not MHCM on 24.12.2020 when samples were sent to the Excise Lab.
6. Accused had admitted the DD no. 47A, FIR, General Diary no. 23A and FSL report U/s 294 r/w 313 r/w 281 Cr. PC and the same were exhibited as Ex. A1 to Ex. A4.
7. Statement of accused was recorded u/S 313 Cr.P.C wherein all in- criminating evidence were put to him but he denied the entire evidence and pleaded that he was innocent and has been falsely implicated in this matter. How- ever, accused did not opt to lead defence evidence and the matter was posted for arguments.
8. Ld. APP for the State has submitted that the accused is liable to be convicted for the offence under Section 33/38 Delhi Excise Act on the basis of depositions made by various witnesses. It is submitted that the prosecution has proved its case against the accused beyond reasonable doubts. Therefore, accused is liable to be convicted.
9. On the other hand, Ld. defence counsel submitted that accused is innocent and has been falsely implicated in this matter. The case property has been falsely planted upon the accused and nothing was recovered from his possession. He submitted that no public person were made witness by the IO despite presence of public persons at the spot. He further submitted that accused be acquitted as the prosecution has failed to prove its case against the accused beyond reasonable doubts.
State Vs Mangal FIR No. 703/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 5
10. I have given my considerable thoughts to the submissions made by ld. APP for the State and ld. Defence counsel and perused the record.
11. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Since, there is a strong presumption of innocence in favour of the accused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
12. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
In another case titled as Mousam Singh Roy & ors. vs. State of West Benga (2003) 12 SCC 377 wherein it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It was further observed that it is a well settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
OBSERVATION
13. PW 1 and PW 2 had deposed that total 8 carton boxes containing the illicit liquor were found in possession of accused Mangal. It has been further State Vs Mangal FIR No. 703/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 6 deposed that 2-2 carton boxes were put into the four white plastic katta. However,when the case property has been produced before the court, then how come the eight pullandas containing the seized case property has been produced before the court. This raises the doubt on the authenticity of the case property seized from accused.
14. PW 1 in his cross examination had stated that he had taken the rukka to the PS for registration of the FIR on the private motorcycle by taking lift however, PW 2 had deposed that PW 1 had gone to the PS on his motorcycle. PW 1 had further deposed that the case property was put into the four wheeler vehicle for taking the same to the PS which PW 2 had called from the PS. However, PW 2 had stated that the said four wheeler vehicle had been taken by him on rent.
15. PW 1 had stated that the information regarding the arrest had been given to the wife of accused who also had come to the spot. However, PW 2 had stated that the information of arrest had been given to the wife of accused but she did not come at the spot.
16. PW 1 and PW 2 in their testimony have stated that public persons were available at the spot however they have not been cited as a witness in the present matter. The prosecution witnesses have admitted that they did not take the name and addresses of the said persons, neither any legal proceedings were initiated for not joining the investigation. There is nothing on record to show that IO had served any notice u/s 160 Cr. PC upon the person who refused to join the investigation. Section 100(4) of Cr. PC casts a duty upon the official conducting the search to join two respectable independent witnesses of the society. This raises doubt about the authenticity of the alleged recovery from the accused as no public person was made witness despite their availability.
State Vs Mangal FIR No. 703/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 7
17. PW 1 was on patrolling duty at the relevant time and place as per prosecution story. Still further, police official are under statutory duty to mark their departure and arrival in the register kept in the police station. The fact of not furnishing the departure entry and the arrival entry coupled with other discrepancies in the case of the prosecution raise grave doubts in the mind of the court about the alleged recovery.
18. Considering the above said discrepancies in the testimony of PW 1 and PW 2 and further considering the absence of the independent witness, this court is not convinced that accused has committed the offense u/s 33/38 Delhi Excise Act. The prosecution has failed to prove its case beyond the reasonable doubts. Accordingly, accused Mangal is acquitted of offence under Section 33/38 Delhi Excise Act. Bail Bond u/s 437A Cr. PC has been directed to be furnished by the undersigned.
Digitally signed19. File be consigned to record room.
Announced in open Court on 29.02.2024.
Nitesh by Nitesh Goel
Date:
Goel 2024.02.29
16:10:29 +0530
Nitesh Goel
Metropolitan Magistrate-05 (South-West)-
29.02.2024.
State Vs Mangal FIR No. 703/20 PS Vikas Puri U/S 33/38 Delhi Excise Act. 8