Delhi District Court
State vs Sadhan on 4 December, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
NORTH-EAST KARKARDOOMA COURTS, DELHI
Presided by: Nitish Kumar Sharma
F.I.R. No. : 56/2008
PS: Dilshad Garden
U/S 61 Punjab Excise Act
(a) Case ID number/CR No. : 466293/2015
(b) Date of commission of the offence : 20.03.2008
(c) The name of the complainant : ASI Devi Charan No.
1944/D/Special Staff
Northeast Delhi, Delhi
(d) The name of the accused, : Ms. Sadhna w/o Sh. Sunil
parentage and residence Kumar R/o H.No. A/8 Gali
No.1 New Jagatpuri, Dilshad
Garden, Delhi.
(e) Charge framed under : Section 61 Punjab Excise
Act (as applicable to Delhi)
(f) The plea of the accused : Pleaded not guilty for offence
u/s 61 Punjab Excise Act (as
applicable to Delhi)
(g) The final order : Acquittal u/s 61 Punjab
Excise Act (as applicable to
Delhi)
(h) The date of such order : 04.12.2023
(i) State represented by : Ld. APP for the State
(j) Accused represented by : Sh. Brijesh Kumar, Ld.
Counsel for accused
FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 1 of 12
JUDGMENT
CASE OF PROSECUTION
1. The wheels of criminal justice system were set in motion in the present case upon apprehension of the accused Sadhna by ASI Devi Charan with his team at the instance of a secret informer on 20.03.2008 at about 06:35 PM at road near Gali No.1 A-Block, New Jagatpuri, Dilshad Garden Delhi, within the jurisdiction of PS Dilshad Garden, in possession of 70 half litre bottles and 237 quarter bottles of illicit liquor. It is the case of the prosecution that accused Sadhna was apprehended at the instance of secret informer and where upon illicit liquor was found in her possession. It is stated that accused Sadhna thereby committed an offence punishable u/s 61 Punjab Excise Act (as applicable to Delhi).
2. After completion of investigation, charge sheet was filed against the accused under Section 61 Punjab Excise Act (as applicable to Delhi) on 17.09.2008, cognizance of offence was taken and the accused was consequently summoned. Copy of charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
CHARGE
3. Thereafter, vide order dated 04.02.2010, charge for committing offence punishable u/s 61 Punjab Excise Act (as applicable to Delhi) was framed against the accused, to which, she pleaded not guilty and claimed trial.
FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 2 of 12 DEPOSITION OF PROSECUTION'S WITNESSES
4. In order to prove its case qua the offence u/s 61 Punjab Excise Act (as applicable to Delhi), the prosecution has examined 6 witnesses in total.
5. PW-1 HC Virender Kumar deposed that on 20.03.2008 one secret informer met ASI Devi Charan and informed him that one lady who is working in selling and supply of liquor is carrying illicit liquor in plastic katta in a heavy quantity and she was standing at Gali No.1, New Jagatpuri Dilshad Garden and waiting for transport. He deposed that IO recovered kattas containing 70 half bottles of Murthal No.1 Desi Sharab. And 237 quarter bottles of Bonney Special Whiskey. He deposed that IO seized the same and sealed with the seal of DC. He deposed that IO prepared rukka and also prepared site plan and arrested the accused and conducted personal search.
6. PW2 ASI Satish Kumar, PW3 HC Sanjay and PW6 ASI Chandra Prabha were all police witnesses and deposed on similar lines. They deposed that on 20.03.2008, they were on patrolling duty and at around 6:20 PM, one secret informer met ASI Devi Charan and informed about the carrying of illicit liquor by the accused at which IO formed a raiding party and went to New Jagatpuri Dilshad Garden. They deposed that the accused was apprehended and three plastic kattas were recovered from her. They deposed that IO recovered kattas containing 70 half bottles of Murthal No.1 Desi Sharab and 237 quarter bottles of Bonney Special Whiskey. IO seized the same and sealed with the seal of DC. They deposed that IO prepared rukka and also prepared site plan and arrested the accused and conducted personal search.
FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 3 of 12
7. PW5 Retd. SI Devi Charan was the IO. He deposed that on 20.03.2008, one secret informer had informed him about illegal supply of illicit liquor by one accused and accordingly he prepared a raiding team and went to Gali No.1, Jagatpuri, Dilshad Garden where at the instance of secret informer the accused was arrested after being found in possession of three plastic kattas having illicit liquor. He deposed that kattas were found containing 70 half bottles of Murthal No.1 Desi Sharab and 237 quarter bottles of Bonney Special Whiskey. He deposed that he seized the same and sealed with the seal of DC. He deposed that he prepared rukka and also prepared site plan and arrested the accused.
8. PW4 Retd. SI Ashok deposed that as per register no.19 of year 2008, two samples of the recovered illicit liquor were deposited with him being MHCM at that time.
9. PW Ct. Kanwar Singh expired during the pendency of trial and was accordingly dropped from the list of witnesses. The remaining witnesses being formal in nature were admitted by accused in her statement recorded u/s 294 Cr.PC recorded on 16.05.2019.
STATEMENT / DEFENCE OF THE ACCUSED
10. Upon completion of prosecution evidence, statement of accused under Section 313 Cr.PC read with Section 281 Cr.PC was recorded on 05.10.2023. The accused denied the allegations and pleaded innocence and opted not to lead defence evidence.
FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 4 of 12 ARGUMENTS
11. It is contended by Ld. Counsel for accused that nothing has been recovered from possession of the accused and she is innocent and has been falsely implicated in this case after planting case property. It is further contended that all prosecution witnesses are police witnesses and no independent public witness has joined and all writing work was done in the police station. It is further contended that the prosecution has failed to prove its case beyond reasonable doubts and hence, the accused is entitled to be acquitted. On other hand, Ld. APP for State contended that accused has been found with illicit liquor by the police official and in course of investigation, the testimony of police officials also supports the case of prosecution.
ANALYSIS AND FINDINGS
12. I have thoroughly and carefully perused the record. The respective submissions of the learned Assistant Public Prosecutor for the State and learned counsel for the accused have been considered.
13. With respect to the charge under Section 61 of the Punjab Excise Act, the case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or licence. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 5 of 12
14. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles her to acquittal. The words "until contrary is proved" used in Section 76 of Punjab Excise Act clearly reveal that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, as discussed hereinafter, careful scrutiny of the evidence placed on record brings to light the fact that the case of the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible, owing to which, no presumption, as provided for under Section 76 of the Act, can be raised against the accused in the present case.
15. In this case, the MHC(M) has produced the case property i.e. illicit liquor, however, in unsealed condition though the case property was having marks of seal but no seal was visible. Once the case property is not intact, the recovery of illicit liquor cannot be said to have been proved from the possession of the accused. In the case of Dhanpat Vs. State of Punjab 2000 (1) CC Cases HC 52, it has been held that in the absence of any link evidence that the property was deposited in the malkhana intact, accused is entitled to benefit of doubt.
FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 6 of 12 NO PUBLIC WITNESS
16. Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from road near Gali No.1 A- Block, New Jagatpuri, Dilshad Garden Delhi. As per the site plan Ex.PW5/B, the spot of recovery was near New Jagatpuri, Dilshad Garden Delhi which, according to the site plan, is surrounded by residential colonies. The place of recovery and apprehension of the accused is, therefore, clearly located in an area where public persons would be readily available. The apprehension and recovery were allegedly made at about 06:35 PM. Thus, at the place and time of the alleged recovery of illicit liquor and apprehension of the accused, public persons would in all likelihood have been present and available or have at least passed by the spot. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
17. PW-1, PW-2, PW-3 and PW-5, in their examination, stated that certain public persons were asked to join the proceedings however they refused citing just reasons. However, it is admitted position that no notice under Section 160 Cr.PC. Was served upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW-1, PW-2, PW-3 or PW-5 to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 7 of 12 investigation by police. Section 100(4) of the CrPC. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
"... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 8 of 12
18. No written notice was served upon any members of general public who refused to join the proceedings in the present case or to face action U/sec. 187 IPC. Therefore it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
19. Non examination of public persons or non-joining can not be the sole ground for rejecting the case of the prosecution. However the factum of non-joining and non examination of any public persons make another fact very crucial i.e. presence of PW-1, PW-2, PW-3 or PW-5 at the spot.
NON-MENTIONING OF DEPARTURE OR ARRIVAL ENTRY
20. The present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by police officials who, as per the case of prosecution, were on patrolling duty at the relevant time and place and secret information was given to them. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 9 of 12 their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
POSSIBILITY OF MISUSE OF SEAL OF THE INVESTIGATING OFFICER
21. As per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the ASI Devi Charan with the seal of DC. As per the police report, after use the seal was handed over to HC Virender, however, no handing over memo regarding the same was prepared. The seal in the present case was not handed over to HC Virender in presence of any independent witness. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 10 of 12 OTHER DISCREPANCIES
22. From the testimonies of the witnesses, it is forthcoming that seizure memo was prepared and Form M-29 was filled before rukka was sent to PS for registration of FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo. Accordingly, it follows that the number of the FIR would have come to the knowledge of investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memos, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW-1/A bear the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The IO in his testimony stated that he had mentioned the FIR no. later whereas the other witnesses deposed that the full particulars were filled prior to sending the rukka and no additions were made thereafter. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
CONCLUSION:
23. No independent witness was cited or examined by the prosecution, daily diary entry regarding departure of police officials has not FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 11 of 12 been proved, possibility of misuse of seal has not been ruled out and the appearance of FIR number and case particulars on the seizure memo has not been explained. These facts when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version.
24. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused. Thus, in view of the aforesaid discussion, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charge u/s 61 Punjab Excise Act (as applicable to Delhi) against her. The accused Sadhna is hereby acquitted of the offence punishable under Section 61 of the Punjab Excise Act. Case property be confiscated to State as per rules.
25. File be consigned to record room after necessary compliance.
Announced in the open court on 04.12.2023 (Nitish Kumar Sharma) Metropolitan Magistrate-03, North-East, Karkardooma Courts, Delhi FIR No. 56/2008 State Vs. Sadhna PS: Dilshad Garden Page no. 12 of 12