Delhi District Court
State vs . on 9 September, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 8662/2019
Unique Case ID No. -: DLSW020016922018
FIR No. -: 343/2018
Police Station -: Chhawla
Section(s) -: 33 Delhi Excise Act
In the matter of -
STATE
VS.
VIPUL THAKUR
S/o Sh. Dhirender Thakur,
R/o VPO Chacha, PS Raiyam,
District, Darbanga, Bihar.
.... Accused
1. Name of Complainant : Ct. Jitender
2. Name of Accused : Vipul Thakur
Offence complained of or
3. : 33 Delhi Excise Act
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 26.08.2018
offence
6. Date of Filing of case : 01.04.2019
7. Date of Reserving Order : 03.09.2022
8. Date of Pronouncement : 09.09.2022
9. Final Order : Acquitted
Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. L.S Gautam, Ld. counsel for the accused.
Digitally
signed by
MEDHA
MEDHA ARYA
ARYA Date:
2022.09.09
17:14:36
+0530
Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 1 of 15
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
1. Succinctly, it is the case of the prosecution that on 26.08.2019, at about 07.25 PM, at Paprawat Road, near Vaishno Mata Mandir, within the jurisdiction of PS Chhawala, the accused was found in possession of illicit liquor ie four cartons (peties), each containing 48 nips (180 ml each) of illicit liquor of make asli santra masaledar desi sharab for sale in Haryana only, without any license or permit for the same. As such, it is alleged that the accused committed the offence under Section 33 of the Delhi Excise Act, 2009 (hereinafter, "Excise Act"), for which FIR No. 343/2018 was registered at PS Chhawla, New Delhi.
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook the investigation and on culmination of the same, the charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial for the abovesaid offence.
3. On his appearance, a copy of charge-sheet was supplied to him 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 Delhi Excise Act was framed against accused Vipul Thakur. The accused pleaded not guilty and claimed trial.
Digitally signed by MEDHA MEDHA ARYA
4. The matter was then fixed for PE in the affirmative. ARYA Date:
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5. Ct. Sunil (PW1) stated on oath that on 26.08.2018 after receiving DD no. 44A by SC Dinesh Kumar, he alongwith IO HC Dinesh Kumar went to the spot at Paprawat Road, near Vaishno Mata Mandir, where Ct. Jitender handed over the custody of the accused as well as the case property i.e. four cartons (petis) of illicit liquor to the IO. He deposed that the IO checked the cartons, which were found to be containing 48 quarter bottles each, of 'Asli Santra Masaledar for sale in Haryana Only'. He further deposed that the IO took one quarter bottle from each carton as a sample, and they were numbered as S. no. S1 to S4. He further testified that the case property and samples were sealed with the seal of "DK". Form M29 was filled by the IO at the spot. PW1 deposed that the IO recorded the statement of Ct. Jitender, and prepared a tehrir. Thereafter, he conducted further investigation in the matter. PW1 correctly identified the accused and the case property. The witness has also relied upon the documents i.e. Site Plan is Ex. PW1/A, Seizure memo of case property is Ex. PW1/B, Arrest memo of the accused is Ex. PW1/C, Personal search memo of the accused is Ex. PW1/D, Case property and order no. 12031/2018/8826-27 dated 28.01.2019 is Ex. P1 and disclosure statement of the accused is Ex. PW1/E. 5.1. In his cross-examination, Ct. Sunil (PW1) stated that he can not tell as to when constable Jitender went to the spot.He deposed that he had not asked any public person to join investigation, although the arrest and recovery were made from a busy spot, and had Digitally also not made any departure entry while leaving the PS. He further signed by MEDHA MEDHA ARYA ARYA Date:
2022.09.09 stated that no specific number was given to each of the quarter bottles 17:14:49 +0530 Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 3 of 15 which were recovered from the possession of the accused. He avouched that he does not remember if any number was put on the cartons. He testified that the case property was brought to PS in a e rickshaw, but its driver was not made a witness in the present matter. He further stated that he does not know if the IO had recorded the name and address of erickshaw driver, and confirmed that statement of the rickshaw driver was not recorded in his presence. He testified that alongwith HC Dinesh, he went to the spot on his motorcycle, but he does not remember the registration no. of the same. He deposed on oath that he remained at the spot for 3035 minutes, but no senior officers reached at the spot during the said period. He admitted that the illicit liquor which was allegedly recovered from the possession of the accused is easily available in the market.
6. Ct. Jitender (PW2) being the complainant, deposed that on 26.08.2018, he was on patrolling duty on his beat no. 6 when he reached at Papratwat Road, Tpoint, 28 feet road, where, acting upon the tip of a secret informer, he apprehended the accused, and recovered from him the case property, being the illicit liquor. He then caused this information to be transmitted to PS. Thereafter, IO HC Dinesh alongwith Ct. Sunil reached at the spot, where the accused was arrested, and case properly seized. He correctly identified the accused, and deposed that he can also identify the case property.
6.1. In cross-examination, Ct. Jitender (PW2) stated that no public persons were joined in the investigation despite availability, as Digitally they refused to join the investigation of the present case. He further MEDHA signed by MEDHA ARYA ARYA Date:
2022.09.09 17:14:54 Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 4 of 15 +0530 deposed that no notice was served to the public persons to join the investigation or on refusal to join investigation. He further stated that the secret information was neither reduced into writing nor the said information was sent to PS. He testified that the case property was taken to PS in an erickshaw, and driver was paid Rs. 100/ by the IO. He avouched that no numbering was made on any of the bottles allegedly recovered from the accused. He denied the suggestion that nothing was recovered from the accused, and that the accused has been falsely implicated in the present case.
7. HC Dinesh (PW3) being the IO , testified on oath that on 26.08.2018, after receiving DD no. 44A dated 26.08.2018, he alongwith Ct. Sunil reached at the spot i.e. Vaishno Mata Mandir Paprawat Road, where he arrested the accused, and seized the case property. He deposed that he checked the cartons recovered from the accused, found 48 quarter bottles in each of them, with each of such bottles containing illicit liquor asli santra masaledar for sale in Haryana only. He testified that he took one quarter bottle from each carton as a sample, numbering them S. no. S1 to S4 , and the remaining bottles were left in the carton itself. He deposed that the case property and samples were sealed with the seal of 'DK'. He then prepared a tehrir , and the same was handed over to Ct. Sunil. He testified that after registration of the subject FIR, Ct. Sunil returned back to the spot and the original tehrir and the copy of the FIR were handed over to the him. He testified that he prepared the site plan. Thereafter, the case property was deposited in the Malkhana. He further deposed that during the investigation, the samples were sent to Digitally signed by MEDHA Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 5 of 15 MEDHA ARYA ARYA Date:
2022.09.09 17:14:59 +0530 excise laboratory, and he later procured the FSL results. He correctly identified the accused. The witness also relied upon DD no. 44A dated 26.08.2018 Ex. PW3/A, form M29 Ex. PW3/B and tehrir Ex.
PW3/C. 7.1. In cross-examination, HC Dinesh (PW3) admitted that he did not ask any public person to join the investigation, nor served any notice upon them to join the investigation. He deposed that no numbering was made on any of the bottles allegedly recovered from the accused. He deposed that the erickshaw driver, who got the case property to the PS, was paid Rs. 100/ by Ct. Jitender. He testified that no senior official came to the spot, while he remained there. He further stated that the statement of driver of erickshaw was not recorded by him. He denied the suggestion that nothing was recovered from the accused, and that the accused has been falsely implicated in the present case.
8. The remaining documents i.e. Excise result dated 26.08.2018 Ex. A1 and FIR no. 343/2018 Ex. A2 were put to the accused, and were admitted by him under Section 294 CrPC. Accordingly, the remaining witnesses were dropped from the list of witnesses. PE was closed thereafter .
9. Thereafter, in order to accord an opportunity to the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 313/281 CrPC. He submitted Digitally that he is innocent and has been falsely MEDHA signed by MEDHA ARYA ARYA Date:
Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 6 of 15 2022.09.09 17:15:04 +0530 implicated in the present case. He stated that the recovery is planted on him. To a specific query, he stated that he does not wish to lead defence evidence in the affirmative .
10. The matter was then fixed for final arguments. Final arguments heard. Record perused. Considered.
11. 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 is reproduced for ready reference-
"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"
It has to be proved-
(i)accused was found in possession of Digitally signed by MEDHA MEDHA ARYA case property. ARYA Date:
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(ii) The case property is illicit liquor of a description , the possession of which without any permit or license contravened the provision of law.
12. The first and foremost contention of the learned counsel for the accused is that the recovery of the illicit liquor is in itself not proved. The assertion of the learned counsel for the accused is that no independent witnesses were joined by the police, during the raid. He has argued that non-joining of public witnesses is fatal to the prosecution's case. On the contrary, learned APP for the State has argued that the prosecution version cannot be disbelieved merely because all the witnesses are police officials.
13. In the present case, PW2 was on area patrolling duty on the date of incident. The deposition of all three prosecution witnesses is that the recovery of the illicit liquor was made from the accused. The incident took place in the evening of a day in August. It is not the case that the incident took place at odd hours and finding of independent witnesses was difficult or unreasonable to expect. Although it is true that non-joining of independent witnesses cannot be a sole ground to discard the evidence of police witnesses (Refer Appabhai vs. State of Gujarat AIR 1988 SC 696), however, evidence in every case is to be weighed in light of the peculiar facts of the case. Witnesses have stated in their cross examination that at the time when the accused was caught, public persons were present at the spot as usual. Despite this, the fact that no such person was made a witness dents the case of the prosecution. All prosecution witnesses admitted that a lot of people Digitally were passing through the spot at the time of incident but no one was MEDHA signed by MEDHA ARYA Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 8 of 15 ARYA Date:
2022.09.09 17:15:16 +0530 asked to join investigation , and no notice was served on them. No explanation has been given for the same. Lack of genuine efforts to join public witnesses weakens the case of the prosecution. At this juncture, this Court seeks guidance from the law laid down by the Hon'ble High Court of Delhi in "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC):-
"18.It is repeatedly laid down by this Court in 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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".
14. The fact that the prosecution put forth a case that the case property was brought to the PS on an e-rickshaw, but even the driver of the said e-rickshaw was not made a witness to the case further casts a shadow of doubt on its case. Similar is the effect of the fact that the accused was apprehended allegedly on the tip of a secret informer, which secret informer was neither named nor examined.
15. The failure of PW1 or PW2 to show any departure entry from the PS, also renders the version of the prosecution regarding the apprehension of the accused doubtful.
Digitally
signed by
CASE PROPERTY - MEDHA
MEDHA
ARYA
ARYA Date:
2022.09.09
16. Learned counsel for the accused has argued that even 17:15:21
+0530
Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 9 of 15
during the trial, the case property was not produced. The sample property produced was in unsealed condition. Refuting the same, learned APP for the State has argued that the case property was duly proved by the destruction order of the Assistant Commissioner (Excise) and the sample property has been produced in terms of Section 60 of the Excise Act.
17. It is the case of the prosecution that samples were drawn from the case property, and they were numbered as S-1 to S-4. However, the samples brought to the court were in unsealed condition, as per the testimony of PW-1 himself. Accordingly , the possibility of tampering with the case property can not be ruled out . The IO PW3 has himself admitted in his cross examination that there was no specific mark on the case property. PW3 has further admitted that the brand of liquor seized in the present case is easily available in Haryana. As such, it is clear that the identification of case property as the same property which was seized from the accused is not proper.
18. Further, even if the fact that case property was brought to the court in unsealed condition is disregarded, the same can not be considered a representative sample of the entire case property. The IO has not stated that the liquid from all the bottles was mixed, before drawing a sample therefrom. Thus, at best, the prosecution can be said to have proved that the sample bottles were containing illicit liquor, but not that the entire case property comprised of the same. At the cost of reiteration, the prosecution has not even established that the sample bottle brought to the court were part of the lot of the case property allegedly recovered. Digitally signed by MEDHA MEDHA ARYA ARYA Date:
2022.09.09 17:15:28 Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 10 of 15 +0530
19. Ex. P1 is the order of the Assistant Commissioner (Excise) dated 28.01.2019, whereby the case property of the present case at entry no. 31, has been ordered to be destructed. In Manjit Singh vs. State (2014) 214 DLT 646, the Hon'ble High Court of Delhi had observed that detailed panchnama containing the inventory should be prepared and photographs of the entire lot should be taken. It was further observed in Para No. 75 that the sample alongwith photographs and panchnama would be sufficient evidence during trial. In the present case, no panchnama was produced. Only one photograph was produced during trial, which depicted one gunny bag. Photographs of the entire lot were not produced. In this regard, even though Section 60 of the 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. Without any proper photographs and an unexplained unsealed bottle Ex. P1, the standard cannot be said to be met beyond reasonable doubt.
20. Further, it is also seen that the illicit liquor samples taken from the seized quantity, was sent over for examination on 27.11.2018 i.e. approx three months afterwards from the time the samples were so taken. That is to say, during the period intervening therein, such samples were kept by the police officials with themselves before being dispatched for evaluation. None of the witnesses examined by the prosecution have stated that the samples of illicit liquor taken for examination from the time they were taken and till the time the said samples were handed over to the Public Analyst, the samples were not tampered with. In this regard, Hon'ble Delhi High Court has held in Digitally signed by MEDHA Datu Ram v. State (Delhi) :1996(1) Crimes 604 : 1996(36) DRJ 527 : MEDHA ARYA ARYA Date:
2022.09.09 Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 11 of 15 17:15:34 +0530 1997(1) CCR 18 as follows :
1.In the State of Rajasthan v. Daulat Ram, 1980, C.C. Cases 83 (S.C), the Supreme Court observed that the prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the court could conclude that the seals remained intact throughout. Unfortunately, this warning seems to have fallen on deaf ears at least as far as this case is concerned.
3.Does the evidence as noticed above satisfy the requirement highlighted by the Supreme Court in Daulat Ram's case? The answer, to my mind, has necessarily to be in the negative.
4.The parcels were allegedly sealed at the spot by the Investigating Officer and if the Moharer Malkhana is to be believed the same were deposited with him by the said officer. However, the Investigating Officer no where says so. In any case, even if it be taken that the parcels were actually deposited by him, was it not for him to assure the Court that so long as they had remained in his possession they had not been tampered with? This, however, is not the end of the matter. The Investigating Officer nowhere says that he had filled the C.F.S.L. form nor is there anything, either in his statement or in the statement of the Moharer Malkhana or even in the entry made in the Register, that any such form was ever deposited. The Constable who took the sample parcel also no where speaks of his having deposited any such form with the C.F.S.L. There are judgments of this court in which it has been held that absence of such evidence would be fatal to the prosecution. Reference, in this connection may be made to Chameli Devi v. State, 1993 JCC 293, Mool Chand v. State, 1993 (2) Delhi Lawyer 14, Anoop Joshi v. State, 1992 (2) CC Cases 314, Jagdish Prasad v. State, 55(1994) DLT 315 and Munni Lal v. The State, 1994 IV AD (Delhi) 1099.
5.Last, but not the least, the report of the C.F.S.L. itself, the relevant portion of which has already been Digitally signed by MEDHA reproduced above, cannot be considered to be such MEDHA ARYA Date:
as to inspire the confidence of the Court with regard ARYA 2022.09.09 17:15:42 to the seals on the sample parcel. As would be +0530 Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 12 of 15 apparent though it does show that the parcel received was having " the seal impression as per specimen enclosed intact" we are not told as to what was the "specimen enclosed". This further takes away the sting from the prosecution version.
21. Similarly, in Chandra Wati v. State (Delhi) : 1991(44) DLT 31 : 1991 JCC 508 it was also held by Hon'ble Delhi High Court that the prosecution has to bring on record the link evidence to show that the sample of the recovery alleged to have been made by the police witness from the accused was analysed in the CFSL without it being tampered with by any one, failure of which is a ground in favour of the accused.
22. In the case of Dhanpat Vs. State of Punjab 2000 (1) CC Cases HC 52 as well, 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.
23. With respect to the contention, it is observed that in an offence such as the present one, the case of the prosecution hinges upon recovery of illicit liquor from the possession of the accused. As such, the seizure memo assumes significance. PW2 has stated on oath that after intimation 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 witness was given the tehrir for registration of FIR. Similar is the deposition of PW3 and the IO PW3. 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 Digitally that the seizure memo contains the description and number of the FIR. signed by MEDHA MEDHA ARYA ARYA Date:
Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 13 of 15 2022.09.09 17:15:47 +0530 How could the FIR number be mentioned before registration of the same, remains unexplained the testimonies of the prosecution witnesses. This puts the genuineness of the seizure memo Ex. PW1/B under a cloud of suspicion.
24. Considering the discussion on the above issues, the inevitable conclusion is that the prosecution has failed to prove that illicit liquor was recovered from the possession of the accused. While coming to this conclusion, this court is also conscious of the presumption enshrined under Section 52 of the 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 -
25. To recapitulate , 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. In criminal law, the prosecution has to establish the guilt of the accused beyond any reasonable doubt- the distance from 'may have' to 'must have' has to be traversed by the prosecution . Such is not the case here. 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 highly doubtful. The fact that independent witnesses were not joined, despite abundant availability, casts serious doubt on the version of the prosecution. Further, the accused has been able to raise doubts with respect to the possibility of tampering with the case property. Other Digitally inconsistencies in the version of the prosecution have crumbled the MEDHA signed by MEDHA ARYA Date:
Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 14 of 15 ARYA 2022.09.09 17:15:54 +0530 whole case of the prosecution.
26. Resultantly, the accused VIPUL THAKUR S/O SH. DHIRENDER THAKUR is entitled for benefit of reasonable doubt and is hereby found not guilty. He is ACQUITTED of the offence under Section 33 of the Delhi Excise Act, 2009.
Pronounced in open court on 09.09.2022 in presence of accused person. This judgment contains 15 pages and each page has been signed by the Digitally signed undersigned. MEDHA by MEDHA ARYA ARYA Date:
2022.09.09 17:16:00 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 09.09.2022 Cr. Case No. 8662/2019 State vs. Vipul Thakur Page 15 of 15