Delhi District Court
Fir No.733/2020 (State vs . Dhamo) Ps Sagarpur on 4 August, 2023
FIR No.733/2020 (State vs. Dhamo) PS Sagarpur
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
PATIALA HOUSE COURT,
NEW DELHI
Presided over by- Ms. Isha Singh, DJS
Cr. Case No. -: 5875/2021
Unique Case ID No. -: DLND02-010393-2021
FIR No. -: 733/2020
Police Station -: SAGARPUR
Section(s) -: 33 Delhi Excise Act
In the matter of -
STATE
VS.
DHAMO
W/o Sh. Mohan Lal,
R/o H. No. RZ-334D, Pankha Road, Brahampuri,
Sagarpur, New Delhi.
.... Accused
1. Name of Complainant : Ct. Jagdish
2. Name of Accused : Dhamo
Offence complained of or
3. : 33 Delhi Excise Act
proved
4. Plea of Accused : Not guilty
5. Date of commission of offence : 17.09.2020
6. Date of Filing of chargesheet : 27.07.2021
7. Date of Reserving Order : 26.07.2023
8. Date of Pronouncement : 04.08.2023
9. Final Order : ACQUITTED
Page 1 of 18
FIR No.733/2020 (State vs. Dhamo) PS Sagarpur
Argued by -: Sh. Ankit Srivastava, Ld. APP for the State.
Sh. Pradeep Nagar, Ld. Counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution is that on 17.09.2020, at about 02:20 PM, at Brahmpuri Chowk, Patli Gali, Near H. No. RZ-334D, within the jurisdiction of PS Sagarpur, the accused Dhamo was found in possession of a white colour plastic katta containing 96 quar-
ter bottles of illicit liquor, with each bottle having label of 'Asli Santara Masaledar Desi Sharab for sale in Haryana only, 180 ml' and that, the ac- cused was found in possession of such liquor without any licence or permit, thereby, committing an offence punishable u/s 33 of Delhi Excise Act, 2009.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (here- inafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
3. On her appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under section 33 of Delhi Excise Act, 2009 was served upon ac- cused to which she pleaded not guilty and claimed trial.
Page 2 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur
PROSECUTION EVIDENCE-
4. To prove its case beyond reasonable doubt against the ac- cused, the prosecution led the following oral and documentary evidence.
ORAL EVIDENCE
PW 1 : HC Jagdish (Complainant)
ASI Joginder Singh (deposited the sample
PW 2 :
at Excise Laboratory)
PW 3 : W/ASI Babita (Recovery witness)
PW 4 : HC Hari Kishan (IO)
DOCUMENTARY EVIDENCE
Ex. PW1/A : Complaint of Ct. Jagdish.
Ex. PW1/B : Seizure memo
Ex. PW1/C : Site plan
Ex. PW1/D : Disclosure statement
Ex. PW1/E : Arrest memo
Ex. PW1/F : Personal search of the accused
Ex. P1 (Colly.) : Order permitting destruction of case property Photographs of plastic katta containing case Ex. P2 : property Unsealed Sample bottle of illicit liquor Ex. P3 : bearing case FIR details Mark PW2/A : Road Certificate Ex. PW4/A : Form M-29 Ex. PW4/B : Rukka DOCUMENTS ADMITTED UNDER SECTION 294 CrPC Ex. A1 : FIR No. 733/2020 Certificate u.s 65B of IEA supporting the Ex. A2 :
FIR Page 3 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur Ex. A3 : GD No. 55A dated 17.09.2020 Excise Report bearing no. SZD027562 Ex. A4 :
dated 12.01.2021.
4.1 PW1/Complainant HC Jagdish deposed on oath that on 17.09.2020 at around 2:00 PM, while he was on patrolling duty with W/ ASI Babita at Beat No.1, Brahmpuri, Sagarpur, New Delhi, they encoun-
tered a lady near H. No. RZ-334D, Brahmpuri Chowk, Patli Gali, who was carrying a white colour pastic katta on her head. He stated despite being signalled to stop, the aforesaid lady started walking quickly upon seeing them, and accordingly, he alongwith W/ASI Babita managed to apprehend the said lady, whose identity was later on revealed to be Dhamo. He stated that upon suspicion, the white colour plastic katta carried by the lady Dhamo was checked and was found to contain quarter bottles filled with il- licit liquor. He stated that the recovery of illicit liquor was informed at PS Sagarpur, pursuant to which IO/HC Hari Kishan reached at the spot. He stated that he produced the accused alongwith the quarter bottles of illicit liquor recovered from her, before the IO. He stated that the IO recorded his complaint and also asked four to five public persons to join the investiga- tion, however, they all left the spot, citing their personal difficulties. He stated that IO/HC Hari Kishan opened and checked the plastic katta recov- ered from the accused Dhamo, which was found to contain 96 quarter bot- tles of illicit liquor with all such bottles having the label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml'. He stated that IO/HC Hari Kishan drew out one quarter bottle as a sample from the said katta, which was marked as serial no. 1 and the remaining bottles were left inside the said plastic katta. He stated that the sample of quarter bottle so drawn out and the plastic katta containing the remaining bottles were tied Page 4 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur with a white colour cloth and sealed with the seal of 'HK'. He stated that after seizure, the seal was handed over by the IO to him. 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, IO prepared the site plan, recorded disclosure statement of the accused, arrested the accused and con- ducted her personal search. Thereafter, the case property was deposited in malkhana, PS Sagarpur. He correctly identified the accused. He also cor- rectly identified the photograph of the plastic katta bearing the case FIR de- tails and the sample of the quarter bottle of illicit liquor, without any label and produced in unsealed condition bearing the case FIR details.
During his cross-examination, PW1/Complainant HC Jagdish admitted that the spot from where illicit liquor was recovered from possession 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 the public persons, who refused to join the investigation. He further admitted that no seal handing over memo was prepared by IO. He admitted that the case property was brought to PS in e-rickshaw but the IO did not examine the driver of the said e-rickshaw. He further stated that he did not remember as to what documents were prepared by the IO after reg- istration of the FIR. He admitted that the accused was arrested in the pres- ence of her son namely Lakhan, however, his statement u/s 161 Cr.P.C. was not recorded by the IO. He further stated that he arrested the accused on suspicion as she was a 'BC' in the area of Sagarpur.
4.2 PW2/ASI Joginder Singh proved copy of Road certificate bearing no. 285/21/2020 dated 18.11.2020, vide which he obtained one Page 5 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur quarter bottle of case property duly sealed with the seal of 'HK', from the concerned MHC(M) and deposited the same with Excise Control Labora- tory, Vikas Bhawan, ITO, New Delhi, upon the instructions of the IO/HC Hari Kishan. He further stated that no tampering was done to the samples of the case property till the time it remained in his custody.
During his cross-examination, PW2/ASI Joginder Singh ad- mitted that he did not sign on register no.19, while obtaining the case prop- erty from the concerned MHC(M).
4.3 PW3 W/ASI Babita deposed on similar lines as PW1/HC Jagdish. She is also a witness to the recovery proceedings and remained as- sociated with the IO in the investigation so carried out by him. She stated that upon apprehension of the accused Dhamo and recovery of illicit liquor from her, IO/HC Hari Kishan reached at the spot, recorded the complaint of Ct. Jagdish, seized the case property and also affixed his seal 'HK' to it. She stated that the IO/HC Hari Kishan handed over his seal to Ct. Jagdish, after sealing the case property. She stated that IO/HC Hari Kishan prepared rukka upon the complaint of Ct. Jagdish, got the present FIR registered and arrested the accused in her presence. She correctly identified the accused. She also correctly identified the photograph of the plastic katta bearing the case FIR details and the sample of the quarter bottle of illicit liquor, with- out any label and produced in unsealed condition bearing the case FIR de- tails.
During his cross-examination, PW3/ W/ASI Babita admitted that the spot from where illicit liquor was recovered from possession of the accused was a residential area, where public persons were available. She admitted that no notice to join the recovery proceedings was given to any Page 6 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur of the public persons, who refused to join the investigation. She further ad- mitted that no seal handing over memo was prepared by IO at the time of handing over of 'HK' seal to Ct. Jagdish. She failed to remember the DD number vide which she was on patrolling duty with Ct. Jagdish. She admit- ted that photograph Ex. P2 of the plastic katta containing the case property does not have any seal on it.
4.4 PW4/IO HC Hari Kishan deposed that on 17.09.2020, upon receiving information vide DD No.55A regarding recovery of illicit liquor, he reached at the site of occurrence, i.e., H. No. RZ-334D, Brahampuri Chowk, Patli Gali, New Delhi, where Ct. Jagdish and W/ASI Babita were found present, who handed him over one white colour plastic katta filled with quarter bottles of illicit liquor; and produced the accused Dhamo, from whom, the said recovery of illicit liquor was reported to be effected. He recorded the complaint of Ct. Jagdish 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 the said plastic katta recovered from accused Dhamo, which was found to contain 96 quarter bottles of illicit liquor and each bottle was having label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml'. He stated that one quarter bottle was drawn as a sample from the said katta and the re- maining bottles were left inside the same katta. He deposed that the sample of quarter bottle so drawn and the plastic katta were tied separately with a white colour cloth and they were sealed separately with the seal of 'HK'. He stated that the case property including the sample and the katta contain- ing the remaining quarter bottles of illicit liquor were duly seized by him. He stated that after the seizure, the seal of 'HK' was handed over by him to Page 7 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur Ct. Jagdish. He stated that he filled the form M-29. He stated that there- after, rukka was prepared by him upon the basis of the complaint of Ct. Jagdish and the said rukka was sent to PS, via Ct. Jagdish, for the registra- tion of FIR. He stated that pursuant to the registration of the FIR, he pre- pared the site plan, recorded the disclosure statement of the accused, ar- rested the accused and also conducted her personal search. Thereafter, the case property was deposited in malkhana, PS Sagarpur. He further deposed that on 18.11.2020, upon his directions, HC Joginder obtained sample quar- ter bottle so seized in the present case from MHC(M) and got it deposited with Excise Control Laboratory for it's chemical examination pursuant to which the Excise Report was obtained. After completion of investigation, he prepared the charge-sheet and submitted the same before the court. The accused Dhamo was exempted from personal appearance, subject to her Counsel not disputing her identity for the purposes of trial. He correctly identified the photograph of the plastic katta bearing the case FIR details and the sample of the quarter bottle of illicit liquor, without any label and produced in unsealed condition bearing the case FIR details.
During his cross-examination, PW4/IO HC Hari Kishan ad- mitted that the spot from where illicit liquor was recovered from possession 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 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. Jagdish. He admitted that photograph of the plastic katta (Ex. P2) containing the case property does not have any seal on it.
Page 8 of 18FIR No.733/2020 (State vs. Dhamo) PS Sagarpur STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
5. On 21.07.2023, statement of accused Dhamo u/s 313 Cr.PC was recorded, wherein she denied the case of the prosecution and stated that she has been falsely implicated in the present case. She 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, she is liable to be acquitted INGREDIENTS OF THE OFFENCE-
7. 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-
Page 9 of 18FIR No.733/2020 (State vs. Dhamo) PS Sagarpur "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"
8. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of in- nocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused.
9. 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 one plastic katta containing 96 quarter bottles having label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml' were seized from the accused. 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 2:20 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, Page 10 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur however it is both apparent and surprising that no independent witness was made to join the proceedings by the police.
10. 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 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."
11. 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 Page 11 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur 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."
12. 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 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 02:20 PM. The rukka Ex. PW4/B was prepared at 03:50 PM. The FIR (Ex.A1) was registered at 4:29 PM. Therefore, it is clear that the police officials were not hard pressed for time as they remained at the spot from atleast 02:20 PM till atleast 4:29 PM. However, despite being at the spot for about 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 Page 12 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur 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.
13. 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."
14. The present FIR has been registered on the information of PW1/Ct.Jagdish, whose version is that on 17.09.2020, when he alongwith W/ASI Babita were on patrolling duty, they found the accused near H. No. RZ-334D, Brahmpuri Chowk, Patli Gali, to be in the possession of a white colour pastic katta which was found containing quarter bottles filled with illicit liquor. Although, the statement of the complainant PW1/Ct.Jagdish as reflected in the chargesheet reveals that he was on patrolling duty vide DD no. 46A, however interestingly, the number of DD vide which Ct. Jagdish was on patrolling duty, is missing from his original complaint (Ex. PW1/A) recorded by the IO. Even otherwise, no DD no. 46A entry has been tendered into evidence regarding the factum of patrolling duty of PW1 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 Page 13 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur 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 recollect the DD number vide which PW1/Ct.Jagdish and PW3/W.ASI Babita were on patrolling duty, is clear from the cross-examination of PW3/W.ASI Babita on record. Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials i.e., PW1/Ct.Jagdish and PW3/W.ASI Babita, regarding their patrolling duty on the date of incident and the time when recovery of illicit liquor was effected from the possession of the accused, becomes a vital piece of evidence. However, no such daily diary entry regarding departure of PW-1 or PW3 is either present on record or is tendered in evidence as part of the deposition of either PW-1 or PW3. Thus, there is no documentary evidence to corroborate the version of PW1/Ct.Jagdish and PW3/W.ASI Babita. Further, omission of the IO to record in the complaint of PW1/Ct.Jagdish, the number/details of the DD vide which he was on patrolling duty and the leaving of a blank space against the word 'DD no.', in the said complaint of PW1/Ct.Jagdish, while the content of the chargesheet filed by the IO reflects that Ct.Jagdish was on patrolling duty vide DD no. 46A, indeed reinforces the argument of the Ld. Counsel for the accused that all the documents of the present case were prepared by the IO sitting at one place and that the case property has been planted upon the accused.
Page 14 of 18FIR No.733/2020 (State vs. Dhamo) PS Sagarpur
15. Further, as per the testimonies of the prosecution witnesses, PW4/HC Hari Kishan opened the plastic katta recovered from accused Dhamo, which was found to contain 96 quarter bottles of illicit liquor and each bottle was having label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml'. He stated that one quarter bottle was drawn as a sample from the said katta and the remaining bottles were left inside the same katta. He deposed that the sample of quarter bottle so drawn and the plastic katta were tied separately with a white colour cloth and they were sealed separately with the seal of 'HK'. He stated that after the seizure of the case property, the seal of 'HK' was handed over by him to Ct. Jagdish. 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 PW1, PW3 and PW4, 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 Page 15 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur case.
16. It is also to be noted that PW1/HC Jagdish 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 PW1/HC Jagdish for registration of FIR. Similar is the deposition of the PW3/W.ASI Babita and PW4/IO Hari Kishan. In the consistent version of the prosecution witnesses regarding the 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.
17. Moreover, in the considered opinion of this court, even the identification of the case property is not established. It is stated by the pros- ecution that the case property has been destroyed on 21.02.2022, as per the Page 16 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur directions of the Assistant Commissioner (Excise) contained in order bear- ing no. Con/Misc/2022/5038-5039 dated 09.02.2022. In this regard, even though Section 60 of the Delhi Excise Act provides that non-production of case property does not affect the conviction, however, at the same time, the provision also lays down that samples and photographs of the confiscated property are to be preserved to meet evidentiary requirements. During the examination of prosecution witnesses, one quarter bottle only bearing the details of the present FIR, in unsealed condition and without any label was produced as sample of the case property, for the purposes of identification. Further, only one photograph capturing the plastic katta, in unsealed condi- tion, supposedly containing the case property/gatta petties comprising illicit liquor were shown to the witnesses for the purposes of identification 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. The sample of the case property so produced was also in unsealed condition and without any label. Further, it stands admitted by PW3 and PW4 in their cross-examination that the plastic katta in photograph Ex. P2, reportedly containing case property does not bear any seal. In such circumstances, the standard of proof beyond rea- sonable doubt, cannot be said to be met. Accordingly, the identification of the case property is not established and this fact becomes fatal to the case of prosecution, going to its roots.
18. In my opinion, the circumstances mentioned above are suffi- cient to punch holes in the version of the prosecution. The case of the pros- ecution cannot be said to be proved on the requisite threshold. Therefore, considering the above discussion, the inevitable conclusion is that the pros- ecution has failed to prove beyond reasonable doubt that illicit liquor was Page 17 of 18 FIR No.733/2020 (State vs. Dhamo) PS Sagarpur recovered from the possession of the accused. While coming to this conclu- sion, this Court is also conscious of the presumption enshrined under Sec- tion 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 presumption, is not proved in the present case.
CONCLUSION
19. 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.
20. Resultantly, the accused DHAMO W/o SH. MOHAL LAL is entitled to benefit of reasonable doubt and is hereby found not guilty. She is ACQUITTED of the offence under Section 33 of the Delhi Excise Act, 2009.
Announced in the presence of
the accused in open court (Isha Singh)
MM-03/PHC/NDD/04.08.2023
Certified that this judgment contains 18 pages and each page bears my signature.
(Isha Singh) MM-03/PHC/NDD/04.08.2023 Page 18 of 18