Delhi District Court
Om Prakash Gupta vs State Of Delhi on 1 July, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-5, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 17 of 2018
CNR NO. DLSE01-000363-2018
IN THE MATTER OF:
Om Prakash Gupta
S/o Sh. Shyam Lal
R/o RZ-2514/35,
Tughlakabad Extension,
New Delhi.
.......Appellant
Versus
State of Delhi
........Respondent
Instituted on : 16.01.2018
Reserved on : Not reserved
Pronounced on : 01.07.2022
JUDGMENT
1. Vide instant appeal, the appellant takes exception to the judgment of conviction dated 15.12.2017 and order on sentence dated 19.12.2017, passed by the learned Metropolitan Magistrate-04, South East District, Saket Courts, New Delhi in First Information Report (FIR) No.1449/2015, Police Station Govindpuri, under Section 33/38 CA No. 17/2018 Om Prakash Gupta v. State Page No. 1 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.01 14:01:37 +0530 Delhi Excise Act, titled as "State vs. Om Prakash Gupta", whereby appellant was convicted for offence under section 33/38 Delhi Excise Act. Vide order on sentence dated 19.12.2017, the appellant was sentenced to undergo simple imprisonment for a period of 06 months and was further directed to pay a fine of Rs.50,000/- for offence u/s 33/38 Delhi Excise Act. In default of payment of fine, appellant was directed to undergo simple imprisonment for 02 months.
2. Case of prosecution in brief is that on 02.11.2015 at about 7.10 PM, in front of House No. RZ-2514/35, at Street No. 35, Tughlakabad Extension, New Delhi, within jurisdiction of PS Govindpuri, appellant/accused was found in possession of 09 boxes containing 432 quarter bottles (48 quarter bottles in each box) of illicit liquor without any license or permit. On these allegations, appellant was charged for commission of offence under section 33/38 Delhi Excise Act.
3. Prosecution to prove its case examined four (04) witnesses before Ld. Trial Court.
3.1 PW1 Ct. Jaiveer Singh deposed that on 09.11.2015 at about 7.10 PM while he alongwith Ct. Vishal being on patrolling duty reached at Gali No.35, Tughlakabad Extension, New Delhi where they saw that an old man was sitting on the boxes outside his house; that as soon as the old man saw them, he started keeping the boxes inside his house in haste and because of it, a suspicion was created in their mind;
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.07.01
14:01:45 +0530
that he alongwith Ct. Vishal ran towards him and checked the boxes by opening the same and found quarter bottles of illicit liquor and on being interrogated, the accused disclosed his name as Om Prakash; that thereafter he called HC Ashok through his mobile and after some time, HC Ashok reached at the spot and he handed over accused and illicit liquor to HC Ashok; that HC Ashok interrogated accused and recorded his statement as Ex. PW-1/A; that IO checked each box i.e. 14 boxes and they found Besto Whiskey for sale in Haryana only measuring 180 ml in each quarter bottle in 9 boxes and the other five boxes were containing Rasila Santra Masaledar Desi for sale in Haryana only measuring 180 ml in each quarter bottle; that IO tried to join public persons in investigation but nobody joined and left by stating a valid reason; that due to lack of time, IO did not serve any notice to anyone and took out sample i.e. one quarter bottle of both brands; that three kattas were filled with quarter bottles off Besto Whiskey and each katta was containing three boxes and two kattas were filled with quarter bottles of Rasila Santra Masaledar and one katta was containing three boxes and the other katta was containing two boxes.
3.2 He further deposed that IO sealed both the samples separately as well as all the kattas with the seal of AK and the seal was handed over to Ct. Vishal; that he filled the form M-29 and IO prepared the rukka and handed over the same to Ct. Vishal for registration of FIR; that after registration of FIR, Ct. Vishal came at CA No. 17/2018 Om Prakash Gupta v. State Page No. 3 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.01 14:01:54 +0530 the spot with original rukka and copy of FIR which were handed over to HC Ashok Kumar for further investigation; that IO prepared the site plan Ex. PW-1/B and the seizure memo of illicit liquor Ex. PW-1/C; that IO arrested the accused and conducted his personal search vide memo Ex. PW-1/D and PW-1/E respectively; that IO prepared the handing over seal memo; that they went to PS and deposited the case property in the Malkhana; that he identified the accused and the case property as Ex P-1.
4. PW2 Ct. Vishal deposed on the lines of PW1.
5. PW3 ASI Yad Ram, being the duty officer, proved his endorsement on rukka Ex. PW-3/A and FIR Ex. PW-3/B (OSR). He also proved the certificate u/s 65 B of Indian Evidence Act Ex. PW-/C.
6. PW4 ASI Ashok Kumar deposed that on 09.11.2015 at about 7.20 PM, on receipt of a call from Ct. Jai Veer regarding illicit liquor, he reached at the spot where Ct. Jai Veer and Ct. Vishal met him. He deposed about the deposit of exhibits through Ct. Pradeep at Excise Laboratory, ITO Vikas Bhawan, New Delhi and collection of result of samples. He further deposed on the lines of PW1 and PW2.
7. Record transpires that during course of trial, the accused admitted certain documents of prosecution i.e. registration of DD No. 56-B dated 09.11.2015 and DD No. 41-A dated 09.11.2015 apart from admitting Excise Report and register no. 19 without formal proof as CA No. 17/2018 Om Prakash Gupta v. State Page No. 4 of 9 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.01 14:02:03 +0530 Ex. AD-1, AD-2, AD-3 and AD-4 respectively.
8. After conclusion of prosecution evidence, statement of appellant was recorded under section 313 CrPC, wherein he claimed to be falsely implicated and chose not to lead any evidence in his defence.
9. Ld. Trial Court vide impugned judgment convicted the appellant for offence u/s 33/38 Delhi Excise Act, finding that prosecution has proved its case beyond reasonable doubt.
10. The appellant has assailed the impugned judgment and order on sentence on the strength of detailed arguments which can be summarized as under:-
(i) That the impugned judgment of conviction and order on sentence are based on presumption, surmises and conjectures and same are liable to be set-aside;
(ii) That Ld. Trial court failed to appreciate that police has not joined any public person during investigation of the case;
(iii) That Ld. Trial Court failed to appreciate that the recovery of illicit liquor has not been proved since as per testimony of PW1, the case property was produced before the court as unsealed/ tampered.
(iv) The Ld. Trial Court failed to appreciate that prosecution has not proved its case beyond reasonable doubt and mere presumption cannot result into conviction of appellant;
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11. Per contra, Ld. Addl. PP for the state has opposed the appeal, stating that Ld. Trial Court has rightly convicted and sentenced the appellant and instant appeal is liable to be dismissed.
12. I have heard rival contentions and perused the record.
13. 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. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
14. In the instant case, as per PW1, seal after use was handed over by ASI Ashok Kumar to Ct. Vishal who was member of raiding team, meaning thereby it was not handed over to any independent person which creates a doubt on the sample 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 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."
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15. 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."
16. In the present case, as per prosecution witnesses, public persons were asked to join the investigation, but none of them agreed. However, admittedly no written notice was served upon them to join the proceedings in the present case or to face action u/sec. 187 IPC. The reasons cited by witness i.e. paucity of time does not disclose any good ground to be entertained since as per prosecution itself, the appellant as well as the case property was already in custody of the investigating team and therefore latter had sufficient time to join the independent witnesses before formal seizure of same. Therefore, it is clear that sincere efforts were not made to join the 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.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.07.01
14:02:34 +0530
17. 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 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.
18. As per the prosecution case, seizure memo Ex. PW1/C was prepared before the preparation of the Rukka. However, the said document contains the number of FIR which shows serious infirmity in the case of prosecution as either the number of the FIR was inserted later on or that it was prepared before the time it is shown to have been prepared. Be that as it may the same creates a reasonable doubt in the story of prosecution. The reliance is placed on the judgment of Giri Raj Vs. State 83 (2000) DLT 201, Mohd. Hashim, Appellant Vs. State, 2000 CRI.L.J. 1510, Pawan Kumar Vs. Delhi Administration, 1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J. 114.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.07.01
14:02:43 +0530
19. Even no statutory presumption in terms of section 52 of the Act, can be drawn against accused as the alleged recovery of liquor from the accused has become doubtful in view of the reasons mentioned above. Hence, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the appellant/accused beyond all reasonable doubts and he deserves to be acquitted in the present case.
20. Accordingly, the instant appeal stands allowed. The impugned judgment and order on sentence stand set-aside. Appellant stands acquitted in the present case. He is directed to furnish personal bond in the sum of Rs. 10,000/- with one surety of like amount before concerned Trial Court in terms of section 437-A CrPC within three days.
21. TCR be sent back to Ld. Trial Court along with copy of the judgment. Appeal file be consigned to record room after due Digitally signed by compliance. ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.01 14:02:52 +0530 Announced in the open (ANUJ AGRAWAL) court on 1st July, 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi CA No. 17/2018 Om Prakash Gupta v. State Page No. 9 of 9