Delhi District Court
State vs Trilok Singh on 25 July, 2024
IN THE COURT OF MS. PADMA LADOL
JUDICIAL MAGISTRATE FIRST CLASS-04,
NEW DELHI, PATIALA HOUSE COURTS, NEW DELHI
FIR No. 117/2018
PS Inder Puri
U/S : 33(f) Delhi Excise Act, 2009
State V/s Trilok Singh
Cr.C No. 17248/2018
CNR No. DLND020166122018
Date of Institution 25.10.2018
Complainant HC Sanjay Poonia
P.S. Inder Puri
Name, parentage and address of the Trilok Singh
accused S/o Sh. Santok Singh
R/o B-514, JJ Colony, Inderpuri
New Delhi-110012
Offence complained of Section 33(f) Delhi Excise Act, 2009
Plea of Accused Not Guilty
Final Order Acquitted
Date of Judgment 25.07.2024
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Argued by: Ms. Shruti Singhal, Ld. APP for the State.
Mr. D. Kaushik, Ld. Counsel for the accused.
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Digitally signed
by PADMA
PADMA LANDOL
Date:
FIR No.117/2018 LANDOL 2024.07.25
16:16:02
+0530
State Vs. Trilok Singh Page 1 of 18
JUDGMENT
Prosecution story
1. The brief facts of the case as alleged by the prosecution and as unfolded from the charge sheet are that on 04.07.2018 HC Sanjay and HC Surender were on picket duty in NDPL area, Inderpuri New Delhi when around 10.15 PM, the accused was coming from NDPL side carrying one plastic katta on his left shoulder. Upon seeing the police party, accused tried to flee away from the spot, however, the police officials apprehended him immediately. They enquired the accused about the katta, however he could not give any satisfactory reply. Upon checking the said katta, it was found to be containing 144 quarter bottles of illicit liquor, with each bottle having label of 'Crazy Romeo For Sale in Arunachal Pradesh only, 180 ml' . Therefore, information was sent to the police station, the present FIR No. 117/2018 under Sections 33(f) Delhi Excise Act (herein after said 'the DE Act) at Police Station Inder Puri (hereinafter referred as 'PS') was registered based on the original rukka, filled form M29 and prepared site plan. After completion of investigation, the charge sheet was prepared and filed in the Court.
Cognizance, compliance of Section 207 CrPC and plea of accused
2. Cognizance of the offence was taken by Ld. Predecessor of this Court and accused was summoned to face trial. On his appearance, the copy of the challan and the documents annexed therewith were supplied to the accused person in Digitally FIR No.117/2018 signed by PADMA PADMA State Vs. Trilok Singh LANDOL LANDOL Date:
Page 2 of 182024.07.25 16:16:10 +0530 compliance of Section 207 Cr.PC. On finding a prima facie case, charge was framed against accused Randhir u/s. 33 DEA on 16.03.2021. The accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
Prosecution evidence
3. In order to prove its case, prosecution examined six witnesses, which will be discussed later, however the exhibits of this case are as per the following table -
Witness exhibiting Identification Description
PW-1: HC Sanjay Ex. PW-1/A Complaint
Ex. PW-1/B Site Plan
Ex. PW-1/C Seizure Memo of case
property
Ex. PW-1/D Arrest Memo of accused
Ex. PW-1/E Personal Search Memo
of Accused
Ex. PW-1/F Disclosure Statement of
Accused
PW-2: Ct. Rajesh - -
PW-3: HC Mitter Sen Ex. PW-3/A Seal Handing over
Memo
PW-4: ASI Surender Ex. PW-4/A Destruction order no. F-
Conf./2020/2069-70
Singh
dated 30.06.2020 of
Asst. Commissioner
(Excise)
PW-5: HC Virender Ex. PW-5/A Tehrir
Singh
Digitally
signed by
FIR No.117/2018 PADMA
PADMA
LANDOL
State Vs. Trilok Singh LANDOL Date:
2024.07.25
Page 3 of 18
16:16:16
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PW-6: SI Rakesh Tyagi Ex. PW-6/A Report of Chemical
Examiner
Case Property Ex. P1 Sample Case Property
Admitted documents Ex. PW-6/A Report of Chemical
Examiner
4. PW-1: HC Sanjay deposed that on 04.07.2018, he was posted as HC at PS Inder Puri. On that day, he was on NDPL picket duty from 08.00 PM to 8.00 AM. At about 10.15 PM, one person who was coming from the side of NDPL carrying one plastic katta saw them and turned around. On seeing this, they tried to stop him but he tried to flee away from the spot and on his suspicious behaviour, he along with HC Surender ran after him and apprehended him and questioned him regarding what he was carrying in the katta. That he could not give any satisfactory answer. On this, they checked the katta and found it was containing illicit liquor. On enquiry, he disclosed his name as Trilok Singh. Then he intimated the incident to the PS and HC Virender came at the spot and they handed over the accused along with illicit liquor to HC Virender. HC Virender recorded his complaint at Ex. PW1/A, bearing his signature at point A and made endorsement on the same. Thereafter, FIR was registered on his complaint and IO prepared the site plan at his instance. That the photocopy of the same is at Mark PW1/B, bearing his signature at point A. PW-1 further deposed that the illicit liquor was in total 144 quarter bottles which were seized by the IO. That the seizure memo is at Ex. PW1/C bearing his signature at point A. That the accused was arrested in his presence vide arrest memo at Ex. PW1/D bearing his signature at point A. Personal search memo is at Digitally signed by FIR No.117/2018 PADMA PADMA LANDOL State Vs. Trilok Singh LANDOL Date: Page 4 of 18 2024.07.25 16:16:28 +0530 Ex. PW1/E bearing his signature at point A. That the disclosure statement of the accused was also recorded in his presence. Same is Ex. PW1/F, bearing his signature at point A. The accused was lodged in lock up and the case property was deposited in the Malkhana. That IO also recorded his statement. Accused present in the court was correctly identified by the witness. PW-1 also correctly identified the sample case property in Court.
In his cross-examination, PW-1 deposed that the quarter bottle identified by him in the court is one of the two sample bottles separated from the case property. He admitted that the remaining case property is not produced before the court. That he left the PS vide DD No. 47B. Witness further admitted that the place from where the accused was arrested is a public place. That he and IO enquired from the accused regarding the procurement of illicit liquor but he could not give any satisfactory answer. That Ct. Mitter Sen got the FIR registered. He intimated the information of apprehension of accused in the PS at about 10.15 PM and IO arrived at the spot within 15- 20 minutes. He had asked some passersby at the time of checking the case property to join the investigation but in vain. Witness was then confronted with his statement recorded u/s 161 of Cr.PC where the fact of asking the public persons to join the investigation is not mentioned. He denied the suggestion that the accused was not apprehended in his presence and that no case property was recovered from the accused. He also denied the suggestion that no liquor was recovered from the accused and that the same has been planted upon the accused. It has further been denied that that all the Digitally signed by PADMA PADMA LANDOL FIR No.117/2018 LANDOL Date:
2024.07.25 State Vs. Trilok Singh 16:16:35 +0530 Page 5 of 18 documents had been prepared in the Police Station and that he has not joined the investigation in the present case.
5. PW-2: Ct. Rajesh deposed that on 04.07.2018, he was posted as constable at PS Inder Puri. That he was on emergency duty and on that day his duty hours were from 8.00 PM to 8.00 AM. Duty officer instructed him to visit at the spot at NDPL, Main Market, Inder Puri with the IO. He found HC Virender, Ct. Mitter Sen along with accused at the spot. That IO/HC Virender prepared the documents i.e. arrest memo and personal search memo which is at Ex. PW1/D and PW1/E in his presence, bearing his signature at point B. He took the accused Trilok for medical examination at RML Hospital.
After medical examination, accused was taken to the PS and lodged in the lock up. PW-2 correctly identified the accused in Court.
In his cross-examination, PW-2 deposed that he went to the spot with IO/HC Virender. That he does not remember the DD number through which he departed from the PS and also the exact time when he reached at the spot. PW-2 further deposed that Ct. Mitter Sen had already apprehended the accused and he was handed over to IO. That Ct. Mitter Sen handed over accused with the case property to the IO in his presence. He did not know about the case property which has been already seized. Witness denied the suggestion that all the documents had been filled at the PS and not at the spot and that he had not visited at the spot.
6. PW-3: HC Mitter Sen deposed that on 04.07.2018, he was posted as Ct. at PS Inder Puri. On that day HC Virender FIR No.117/2018 Digitally signed by State Vs. Trilok Singh PADMA PADMA LANDOL Page 6 of 18 LANDOL Date:
2024.07.25 16:16:42 +0530 received DD No. 24-A regarding apprehension of a person with illicit liquor at NDPL Main Market, Police Picket, Inder Puri. On this both of them went to the spot where HC Sanjay met them and he handed over one person along with a plastic katta containing illicit liquor. On inquiry that person disclosed his name as Trilok Singh. On checking the Katta, it was found containing 144 quarter bottles of Crazy Romeo Whiskey for sale in Arunachal Pradesh (180 ml). Thereafter, HC Virender recorded the complaint of HC Sanjay and prepared the original tehrir and he also seized the illicit liquor vide seizure memo at Ex. PW 1/C after separating two sample quarter bottles and handed over the tehrir to him for registration of FIR. That he went to the PS and returned back to the spot along with the copy of FIR, original tehrir and ASI Rakesh Tyagi also came with him as further investigation of the case was marked to him. HC Virender handed over the accused along with the case property to ASI Rakesh Tyagi. Thereafter, the accused was arrested and personally searched in his presence vide memos already Ex. PW-1/D and Ex. PW-1/E bearing his signature at point C respectively. IO also recorded the disclosure statement of the accused which is at Ex. PW-1/F bearing his signature at point B. IO also handed over him the seal after its use vide seal handing over memo Ex. PW-3/A bearing his signature at point A. After medical examination the accused was lodged in lock-up and case property was deposited in the Malkhana. IO also recorded his statement. Witness correctly identified the sample case property in Court.
In his cross-examination, PW-3 was asked about the DD No. vide which the information was received to which the witness deposed that the DD No. was 24-A as far as he can remember.
FIR No.117/2018 Digitally
signed by
State Vs. Trilok Singh PADMA
PADMA LANDOL Page 7 of 18
LANDOL Date:
2024.07.25
16:16:47
+0530
That he did not make any departure entry at the time of leaving the PS. That HC Virender might have made the Departure Entry. He further deposed that the case property was handed over to HC Virender by HC Sanjay in unsealed condition. He signed on the seal handing over memo. Then the witness was confronted with seal handing over memo which is Ex PW 3/A bearing the name of the witness. The witness deposed that his name is mentioned but signature is not there. That he deposited the seal on the same day in the Malkhana. The accused was taken to the hospital by Ct. Rajesh. That he finally left the spot at about 01:00 AM and he did not make any arrival entry at the PS. IO did not mark any number on the sample quarter bottles. That he can identify the case property by the name of its brand and the FIR no. mentioned on the sample. Witness denied the suggestion that all the proceedings took place at the PS.
7. PW-4: ASI Surender Singh deposed that on 04.07.2018, he was posted at PS Inderpuri as HC. On that day, he was on NDLP picket duty. His duty hours were from 08:00 A.M to 08:00 P.M. At about 10:15 PM they saw one person coming from NDPL side carrying one plastic katta and when he saw them, he turned around. On seeing this the suspicion raised and he tried to flee away from spot. On his behaviour, he along with HC Sanjay ran after him and were able to apprehend him. He was questioned what he was carrying in the said plastic katta, upon this he was unable to give any satisfactory answer and thereafter the katta was checked. On checking it was found containing illicit liquor and total 144 Quarter bottles of make Crazy Romeo 180 ml were recovered from the said plastic FIR No.117/2018 Digitally State Vs. Trilok Singh signed by PADMA Page 8 of 18 PADMA LANDOL LANDOL Date:
2024.07.25 16:16:55 +0530 katta. The intimation was then given at PS and HC Virender came to the spot. They handed over the accused along with illicit liquor to HC Virender. That HC Virender recorded the statement of Ct. Sanjay and on his statement the endorsement was made and FIR was registered. IO prepared the site plan at the instance of Ct. Sanjay. The photocopy of the same is at Ex. P1/B. The said liquor was seized vide seizure memo at Ex- PW1/C. The arrest of the accused was made vide arrest memo at Ex-PW1/D and personal search was conducted vide memo at Ex-PW1/E. The disclosure statement of accused was also got recorded by the IO. Accused present in the court was correctly identified by the witness. That his statement U/s 161 Cr.P.C was also got recorded by the IO. In his cross-examination, PW-4 deposed that he was posted in PS Inderpuri from the year 2016 to 2018. That he does not know the accused Trilok Singh personally. He does not remember the DD number of the departure entry made at PS. IO reached the spot within 20 minutes when the intimation was made with regard to the apprehension of accused at about 10:45 P.M. His statement was recorded by HC Virender on same day. Total 144 quarter bottles were recovered from katta and two bottles was taken out as sample. That he has not signed any document. Witness admitted that he has not mentioned the fact in his statement U/s. 161 Cr.PC that two quarter bottles out of 144 quarter bottles were seized as sample. He further admitted that there is no sample and case property lying before him to identify the same. Witness also admitted that place of occurrence is densely populated area. That no request was made from the public person to join the investigation. PW-4 also admitted no public person was FIR No.117/2018 Digitally State Vs. Trilok Singh signed by PADMA Page 9 of 18 PADMA LANDOL LANDOL Date:
2024.07.25 16:17:05 +0530 examined in the present case. He denied the suggestion that no fair investigation has been conducted or that all the documents were prepared while sitting at PS. Witness further denied the suggestion that he has never been to the spot of occurrence and that accused has been falsely implicated in the present matter.
8. PW-5: HC Virender Singh deposed that on 04.07.2018 he was posted at PS Inderpuri as HC. On that day, DD no. 24A was received with regard to the apprehension of one person with illicit liquor at NDPL main market. Thereafter, he along with HC Mitter Sen went to the spot of occurrence, there HC Sanjay & HC Surender were already present and the accused was handed over to him with one plastic katta containing illicit liquor. Accused disclosed his name as Trilok Singh. The katta was checked and it was found containing 144 quarter bottles of Crazy Romeo Whisky for sale in Arunachal Pradesh , 180 ml. He recorded the statement of HC Sanjay which is at Ex-PW1/A bearing his signatures at point B and prepared the tehrir and the same is at Ex. PW-5/A bearing his signatures at point A and seized the said liquor bottle vide seizure memo at Ex-PW1/C bearing his signatures at point C and the case property was seized with the seal of 'VS'. The seal was handed over to Ct. Mitter Sen while handling over memo at Ex-PW3/A bearing his signatures at point B. In the meantime, ASI Rakesh along with Ct. Rajesh came to the spot and the investigation was handed over to him along with case property and accused. PW-5 correctly identified the witness in Court. In his cross-examination, PW-5 deposed that he reached the spot within 20 minutes when the intimation was made with FIR No.117/2018 Digitally State Vs. Trilok Singh signed by PADMA Page 10 of 18 PADMA LANDOL LANDOL Date:
2024.07.25 16:17:12 +0530 regard to the apprehension of accused at about 10:45 P.M. That no separate DD entry was made with regard to departure. Total 144 quarter bottles were recovered from katta and two bottles was taken out as sample. He admitted that there is no sample and case property lying before him to identify the same. He admitted that place of occurrence is densely populated area.
That no request was made from the public person to join the investigation. He further admitted that no public person was examined in the present case. That the M-29 form was filled at the place of occurrence and it is completed in all respect. PW-5 admitted that signatures of Ct. Mitter Sen is not mentioned in seal handling memo and that Mitter Sen had signed the arrest memo and not the seal handling over memo. Witness denied the suggestion that no fair investigation has been conducted or that all the documents were prepared while sitting at PS. He also denied the suggestion that he has never been to the spot of occurrence and that accused has been falsely implicated in the present matter.
9. PW6: SI Rakesh Tyagi deposed that on 04.07.2018 HC Mitter Sen came to PS for the endorsement and the FIR was registered. Thereafter, he along with Ct. Mitter Sen went to the spot of occurrence as the present case was marked to him for further investigation after the registration of FIR. When they reached the spot, there HC Virender, HC Surender, HC Sanjay were already present. HC Virender handed over the accused along with the case property to him, thereafter the accused was arrested and his personal search got conducted vide memos at Ex-PW1/D & Ex-PW1/E both bearing his signatures at point D. The disclosure statement of the accused was also got recorded Digitally signed by PADMA FIR No.117/2018 PADMA LANDOL LANDOL Date:
State Vs. Trilok Singh 2024.07.25
16:17:22 Page 11 of 18
+0530
vide memo at Ex-PW1/F bearing his signatures at point C. The site plan was also made at the instance of HC Sanjay, which is at Ex-PW1/B bearing his signatures at point B. Thereafter, the accused was sent for the medical examination and the seized sample bottles were sent for chemical examination. That he had also obtained the report of chemical examination which is at Ex-PW6/A. The MLC of the accused was also got collected from RML hospital. He also recorded statement of all the PWs U/s/ 161 Cr.P.C. After the completion of the investigation the chargesheet was prepared and filed before the court. Accused was correctly identified by the witness in Court. In his cross-examination, PW-6 deposed that no separate DD entry was made with regard to departure. That total 144 quarter bottles were recovered from katta and two bottles was taken out as sample. He admitted that there is no sample and case property lying before him to identify the same. Witness further admitted that place of occurrence is densely populated area and no request was made from the public person to join the investigation. He also admitted that no public person was examined in the present case. That the M-29 form was filled at the place of occurrence and it is completed in all respect by HC Virender. That the excise sample were sent for examination on 07.08.2018. Witness failed to remember if any DD entry was made when he returned to the PS after the investigation. He deposed that the statement of all the PWs were recorded at the spot itself. Witness also did not remember when he had filed the chargesheet in the court. He admitted that the date is not mentioned on the chargesheet. PW-6 denied the suggestion that no fair investigation has been conducted or that all the documents were prepared while sitting at PS. He also denied the FIR No.117/2018 Digitally signed by State Vs. Trilok Singh PADMA Page 12 of 18 PADMA LANDOL LANDOL Date:
2024.07.25 16:17:31 +0530 suggestion that he never went to the spot of occurrence and that accused has been falsely implicated in the present matter.
Statement of accused and defence evidence
10.All the incriminating evidence were put to accused in Statement of accused u/s. 313 Cr.PC on 26.06.2024. In his defence, he pleaded he was innocent. However, he preferred not to lead evidence in defence. Thereafter, the matter was listed for final arguments.
Appreciation of evidence in the light of legal propositions
11. I have heard the arguments addressed by Ld. APP for State and Ld. Counsel for accused and carefully perused the record.
12.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.
Digitally
signed by
PADMA
PADMA LANDOL
LANDOL Date:
2024.07.25
16:17:38
+0530
FIR No.117/2018
State Vs. Trilok Singh Page 13 of 18
13.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.
14.For proving the offence against the accused Trilok Singh, prosecution is required to prove that the illicit liquor was recovered from the possession of the accused. The Excise Lab report reflects that the two sample bottles were tested positive for ethyl alcohol. However, there is no report to suggest that the remaining 142 bottles, which were allegedly recovered from the accused contained illicit liquor. It is not the case of the prosecution that all the liquid contained in all the recovered bottles were emptied and collected at one place and thereafter, the said liquid was mixed to prepare a representative sample of the liquid contained in all the said bottles. 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 two sample bottles which were examined in the FIR No.117/2018 Digitally signed by State Vs. Trilok Singh PADMA PADMA LANDOL Page 14 of 18 LANDOL Date:
2024.07.25 16:17:48 +0530 Excise Lab cannot be stated to contain the representative liquid of all the remaining bottles. Hence, the Excise Lab result in respect of two bottles cannot be conclusively held to be equally applicable on the liquid contained in the remaining 142 bottles which were not examined. Thus, there is no evidence on record to show that the liquid contained in the remaining 142 bottles, other than the sample bottle, was in fact liquor.
15.The alleged incident pertains to have occurred on 04.07.2018, at about 10:15 PM, near NDPL, Inderpuri. The said spot is admittedly a public place with residential houses, shops as well as at the time of incident the place was occupied by local/ independent witnesses. The prosecution has failed to examine any public witness from spot, therefore, the version of the prosecution 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 straight-
Digitally signed by PADMAFIR No.117/2018 PADMA LANDOL Date: LANDOL 2024.07.25 State Vs. Trilok Singh 16:17:56 +0530 Page 15 of 18
away 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.
16.As per the case of the prosecution, the seal after use was given to Ct. Mitter Sen who was part of the police party and 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 Digitally signed by FIR No.117/2018 PADMA PADMA LANDOL State Vs. Trilok Singh LANDOL Date: Page 16 of 18 2024.07.25 16:18:04 +0530 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".
17.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 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".
18.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 Digitally FIR No.117/2018 signed by PADMA PADMA LANDOL State Vs. Trilok Singh LANDOL Date: Page 17 of 18 2024.07.25 16:18:19 +0530 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 to be free from reasonable doubt and the accused is liable to be acquitted".
Conclusion
16. 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. Accordingly, accused Trilok Singh is acquitted of the charge under Section 33 Delhi Excise Act, 2009.
Digitally signed by PADMAPADMA LANDOL LANDOL Date:
2024.07.25 16:15:16 +0530 Announced in the Open Court (PADMA LADOL) on this 25th July, 2024 JMFC-04: New Delhi: PHC Certified that this judgment contains 18 pages and each page bears my signatures. PADMA Digitally signed by PADMA LANDOL LANDOL Date: 2024.07.25 16:15:04 +0530 (PADMA LADOL) JMFC-04: New Delhi: PHC FIR No.117/2018 State Vs. Trilok Singh Page 18 of 18