Delhi District Court
State vs . Seeta on 11 April, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08,
WEST DISTRICT, ROOM NO. 30, THC, DELHI.
FIR No. : 448/17
U/s : 33/38 Delhi Excise Act
P.S. : Ranhola
State Vs. Seeta
JUDGMENT:
a) CNR No. : DLWT02-006117-2018
b) Sl. No. of the Case : 3106/18
c) Name & address of the : HC Rajbir, No. 929/OD,
complainant. PS Ranhola, Delhi.
d) Name & address of : Seeta W/o Sh. Preetam,
accused R/o H.No. A-42, G-2 Block, Phase-I,
Jai Vihar, Baprola, Delhi.
e) Date of Commission of : 14.07.2017
offence
f) Offence complained off : U/s 33/38 Delhi Excise Act
g) Plea of the accused : Pleaded not guilty.
h) Final Order : Acquitted
i) Date of such order : 11.04.2022
Date of Institution : 07.05.2018
Final arguments heard on : 11.04.2022
Judgment Pronounced on : 11.04.2022
FIR No: 448/17 State v. Seeta Page No.1/18
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 14.07.2017 at about 08:40 PM in front of H.No. A-42, G-II Block, Jai Vihar, Phase-I, Baprola, Delhi accused was found in possession of 5 gatta petties and 3 plastic kattas. Out of 5 gatta petties, 3 gatta petties were containing 50 quarter bottles of "Aasli Santara Masaledar Deshi Sharab for sale in Haryana only, 1 gatta peti was containing 48 quarter bottles of "Episode" for sale in Haryana only and 1 was containing 48 quarter bottles of "Mc Dowels" for sale in Haryana only. Three plastic kattas, were containing 46 quarter bottles of "Impact Grain Whiskey" for sale in Haryana only, 44 beer bottles of "Haywards" for sale in Haryana only and 59 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only, without any license or permit and committed an offence punishable U/s 33/38 Delhi Excise Act.
2. After investigation, challan for offence U/s 33/38 Delhi Excise Act was filed. Compliance of Section 207 Cr.P.C was done. FIR No: 448/17 State v. Seeta Page No.2/18
3. Charge for committing the offence punishable under Section 33/38 Delhi Excise Act was framed against accused on 27.05.2019, to which she pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined two witnesses.
5. PW-1 HC Rajbir, No. 929/OD is the complainant of this case who deposed that on 14.07.2017, he was posted at beat No. 8. On that day, he was on patrolling duty. On that day, at about 08:40 PM, when he was passing from A-42, G-2 Block, Jai Vihar, Phase-I, Baprola near Aakash International School, he saw one lady was sitting in front of the abovesaid house and she had 5 gatta petties and 3 plastic kattas. On his inquiry, she denied to show him the gatta petties and kattas but when he checked the gatta petties and plastic kattas, he saw the peti was having illicit liquor namely "Asli Masaledar Santara Deshi Sharab and Whiskey". The name of the said lady was revealed as Seeta who was accused, and was presented at court and correctly identified by the witness. He FIR No: 448/17 State v. Seeta Page No.3/18 informed the said fact to PS. IO came at the spot. He produced accused alongwith case property before the IO. IO recorded his statement vide Ex.PW1/A. IO checked the case property and found the same was containing 5 gatta petties and 3 plastic kattas. Out of the 5 gatta pettis, 3 gatta petties were containing 50 quarter bottles each of brand "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only, one gatta peti was containing 48 quarter bottles of "Mc Dowells" for sale in Haryana only, one gatta peti was containing 48 quarter bottles of "Episode" for sale in Haryana only. IO took 2 quarter bottles each from each gata petties as a sample and sealed them with the seal of "NV". IO also sealed the said gatta petties with the seal of "NV". Out of the 3 plastic kattas, one was containing 46 quarter bottles of "Impact Grain Whiskey" for sale in Haryana only, other was containing 44 beeer bottles of "Haywards" for sale in Haryana only and last plastic katta was containing 59 quarter bottles of "Asli Santara Masaledar Deshi Sharab" for sale in Haryana only. IO took two bottles from each plastic katta as a sample and sealed them with the seal of "NV". IO seized the case property vide memo Ex.PW1/B. IO filled form M-29. IO prepared the FIR No: 448/17 State v. Seeta Page No.4/18 rukka and same was handed over to him for registration of FIR from PS. Accordingly, he took the same to the PS and got FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to IO. IO prepared site plan at his instance vide Ex.PW1/C. IO arrested, personally searched (through W/Ct. Sampati) and recorded disclosure statement of accused vide Ex.PW1/D, PW1/E and PW1/F. IO recorded his statement. He stated that he could identify case property if show to him and at that stage, MHC(M) states that case property has been destroyed by te order of Asst. Commissioner Excise. Photocopy of said order was marked as mark "A". Photograph alongwith CD of case property were Ex.P-1(Colly).
At that stage MHC(M) also produced sample quarter bottles and beer bottles. Same were shown to the witness and witness correctly identified the same. Same were Ex.P-2(Colly).
In his Cross-examination he further deposed that he took the rukka to PS at around 09:40 PM and returned back at the spot at about 11:30-11:45 PM on government motorcycle. The distance between the spot and PS is around 2.5-3 Kms. IO came after half an FIR No: 448/17 State v. Seeta Page No.5/18 hour of his calling at PS. All the written proceedings were conducted by the IO while sitting on the motorcycle at the spot under the street light in front of the house of accused. It was correct that spot was residential area. They requested passerby to join the investigation but none agreed. They did not request the local residents/neighbours to join the investigation. No written notice was served upon the passerby who refused to join investigation. IO did not prepare any other document before sending rukka. IO came at the spot on his motorcycle alongwith W/Ct. Sampati. They finally left the spot at around 11:50 PM. It was wrong to suggested that nothing was recovered from the accused and case property was planted upon the accused or that all the proceedings were conducted while sitting at the PS or that accused was falsely implicated or that he was deposing falsely. It was correct that grocery store was situated at a distance of 100 meters from Spot. Akash International School was situated at a distance of 20 meters from the spot. They did not visited the said grocery shop or school.
6. PW-2 ASI Narbir Singh, No. 320/OD is IO of this case FIR No: 448/17 State v. Seeta Page No.6/18 and deposed that on 14.07.2017, on receiving DD No. 57-B, he reached at the spot. On reaching there, he met HC Rajbir who produced before him, accused Seeta alongwith case property. He checked the case property and found that same was containing 5 carton boxes of illicit liquor and out of which 3 carton boxes were containing 50 quarter bottles and other two carton boxes were containing 48 quarter bottles of illicit liquor. IO separated 2 quarter bottles from each carton as a sample and sealed them with the seal of "NV". IO sealed the remaining case property with the seal of "NV". IO filled form M-29 vide Ex.PW2/A. IO seized the case property vide memo Ex.PW1/B and recorded the statement of HC Rajbir vide Ex.PW1/A. IO prepared rukka Ex.PW2/B and handed over the same to HC Rajbir for registration of FIR. HC Rajbir took same to PS and got FIR registered and came back at the spot alongwith copy of FIR and original rukka and handed over the same to him. IO prepared site plan Ex.PW1/C. IO arrested, personally searched (through W/Ct. Sampati) and recorded disclosure statement of accused vide memos Ex.PW1/D, PW1/E and PW1/F. Case property deposited in malkhan. Sample were sent to Excise Lab and obtained the result FIR No: 448/17 State v. Seeta Page No.7/18 already Ex.A-4. He could identify case property if show to him and case property already exhibited in testimony vide PW-1.
In his Cross-examination he further deposed that he sent the rukka to PS at around 10:00 PM through HC Rajbir but he did not remember by what mode of conveyance he went to PS. He did not remember at what time HC Rajbir returned back. Distance between spot and PS is about 4 Kms. He reached at the spot within 25 minutes of receiving the call but he did not remember the exact time. He reached at the spot on motorcycle. He remained at the spot for about 45 minutes. He coud not tell the exact time. He conducted all the proceedings while sitting on chapai at the spot. It was correct that spot was residential area. He did not request nearby neighbourers to join the investigation but he requested passerby to join the investigation and they refused to join the investigation. No written notice was served upon the said public persons. He prepared personal search memos, arrest memo and site plan before sending the rukka. It was correct that there was Akash International School near the spot. He did not request any staff of the said school to join the investigation. It was correct that FIR No: 448/17 State v. Seeta Page No.8/18 no addiction or alteration was made in the documents after registration of FIR. It wasw wrong to suggest that nothing was recovered from the accused or that case property was planted upon the accused or that he was deposing falsely.
7. After completion of prosecution evidence, all the incriminating evidence was put to accused U/s 313 Cr.P.C and her explanation was recorded, wherein she denied all the incriminating evidence against her and claimed to have been falsely implicated and case property planted upon her. Accused chose not to lead DE.
8. The accused admitted FIR 448/17 dated 14.07.2027 alongwith certificate u/s 65-B of Indian Evidence Act, DD No. 57-B dated 14.07.2017 and Chemical examination report vide Ex.A-1 to Ex.A-4 u/s 294 Cr.P.C respectively.
9. I have heard Ld. APP for the State, Ld. Counsel for accused and have carefully gone through the material on record. FIR No: 448/17 State v. Seeta Page No.9/18
10. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
11. In the considered opinion of this Court, as a cumulative effect of the following reasons, accused Seeta is entitled to be acquitted for the charge by reasons of reasonable doubts in the prosecution story.
FIR No: 448/17 State v. Seeta Page No.10/18
12. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:¬ "22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:¬ © 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. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note:¬ The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
13. In the present case, the above said provision appears to have not been complied with by the prosecution. As per the prosecution version, at the time of the apprehension of the accused with illicit liquor from her possession, HC Rajbir (PW¬1) had left the PS for patrolling duty but the said DD entries vide which he had left FIR No: 448/17 State v. Seeta Page No.11/18 the PS for patrolling duty and to perform proceedings post seizure of illicit liquor have not been brought on record. In the opinion of this Court, the prosecution was under an obligation to bring on record and prove the above said DD entries vide which the above said police official had left the PS, so as to prove the possibility of availability of said police official at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have brought on record and prove the DD entry by which the above said police official had left the PS, so as to inspire the confidence regarding his availability and presence at the place of apprehension of the accused, since police officials are under bounden duty to enter their departure and arrival from/at the police station by making a D.D. entry in that respect as per the aforesaid mentioned Punjab Police Rules. It is noticed however that DD entry 57B is on record which is Ex. A3 but the said DD entry is only qua PW2/IO ASI Narvir Singh and for his departure to the spot after apprehension of the accused by PW1. There is no DD entry qua PW1 to prove placed on record by the prosecution as to when he left the PS for patrolling duty.
FIR No: 448/17 State v. Seeta Page No.12/18
14. At this juncture, it is relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record and prove the relevant DD entries as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the police officials.
15. As deposed in their testimony, PW1 and PW2 stated that they had asked some public persons/passerbys to join the investigation, but all of them refused citing their personal reasons. However, it is clear that no serious attempt was made by the concerned police witnesses to get independent public persons to FIR No: 448/17 State v. Seeta Page No.13/18 join the police proceedings of seizure, since the area was a residential area and any local person residing in the locality could have been joined by the police. In circumstances like the present one, if members of the public had in reality refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings for joining the investigation. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of apprehension by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:¬ In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:¬ " It is repeatedly laid down by this Court in FIR No: 448/17 State v. Seeta Page No.14/18 such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC". In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:¬ " I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the FIR No: 448/17 State v. Seeta Page No.15/18 prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner. It is well settled principle of the 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 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 FIR No: 448/17 State v. Seeta Page No.16/18 witnesses from the public had refused to join the investigation, the Investigating Officer must 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 public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
16. In view the background of the case, defence of the accused, non-following the established procedure of law by the investigating agency, as discussed above, this Court is of the opinion that the accused is entitled to the benefit of doubt. In this regard, reliance can be placed on the case of State of Haryana v. Bhagirath, AIR 1999 SC 2005, the Hon'ble Supreme Court illustrated the doctrine of benefit of doubt in the words ¬ "The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not FIR No: 448/17 State v. Seeta Page No.17/18 have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
17. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, it is held that the prosecution has failed to prove the alleged offence under Section 33/38 Delhi Excise Act against the accused Seeta beyond reasonable doubt. The accused Seeta is hereby acquitted for the charged offence.
Dictated & Announced (Aakash Sharma)
in Open Court MM-08/West/Delhi
On the 11th day of April, 2022 11.04.2022
FIR No: 448/17 State v. Seeta Page No.18/18