Delhi District Court
State vs . Ramesh & Anr. on 22 January, 2020
IN THE COURT OF SH. HIMANSHU RAMAN SINGH,
METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI.
Cr. Case No.90122/2016
FIR NO. 437/2013
PS OIA
U/s. 33/38/52(2) Delhi Excise Act
State Vs. Ramesh & Anr.
JUDGMENT
A. SL. NO. OF THE CASE : 235/2/14
B. DATE OF INSTITUTION : 24.06.2014
C. DATE OF OFFENCE : 28.08.2013
D. NAME OF THE COMPLAINANT : Ct. Sandeep Kumar
No. 1462/SE.
E. NAME OF THE ACCUSED : 1. Ramesh Kumar
S/o Sh. Sajjan
2. Jai Rani
W/o Sh. Rakesh
F. OFFENCE COMPLAINED OF :33/38/52(2)Delhi Excise Act
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Conviction
I. DATE OF FINAL ORDER : 22.01.2020
Brief Statement of Reasons for Decision :
1. Accused persons are facing trial before the court for the offences punishable under Section 33/38/52(2) Delhi Excise Act.
FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 1 of 122. Briefly stated the facts of the case are that on 28.08.2013, at about 6.30 am, at Puri Chowk, OIA Phase II, New Delhi within the jurisdiction of PS OIA, accused Ramesh was found in possession of total 42 cartons of illicit liquor, out of which 21 cartons contained 48 quarter bottles each of illicit liquor of Impact green Whiskey (for sale in Haryana only) and remaining 21 cartons contained 50 quarter bottles each of illicit liquor of Rasila Sanata Masaledar Sharab (for sale in Haryana only) which accused Ramesh was transporting in a vehicle/Fiat car bearing no. DL3CV1523 without any permit or license in contravention of Delhi Excise Act. Further accused Jai Rani being the registered owner of the Fiat car bearing registration no. DL3CV1523 knowingly permitted coaccused Ramesh for it to be used for carrying/transporting the illicit liquor i.e. 42 cartons as abovesaid, without any permit or license and in contravention of Delhi Excise Act.
3. The present FIR was registered and after completion of investigation ASI Suresh Chand prepared the chargesheet and filed the same before the court.
4. Accused persons appeared before the Court on 24.06.2014 and copies of chargesheet alongwith documents annexed therewith were supplied to them as per section 207 CrPC. Thereafter accused Ramesh was charged for the offence u/s 33/38 Delhi Excise Act and further accused Jai Rani was charged for the offence u/s 47 Delhi Excise Act by Ld. Predecessor of the court on 16.10.2015 to which FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 2 of 12 they pleaded not guilty and claimed trial. However, later it was noticed that clerical mistake had crept in and instead of Section 52(2) Delhi Excise Act, Section 47 Delhi Excise Act was mentioned. The same was corrected later on the application filed by Ld. APP under Section 216 CrPC and amended charge was framed qua the accused Jai Rani. However, no prejudice to the accused was caused as all the ingredients of the offence charged were already mentioned in the charge.
5. Prosecution in order to prove its case, has examined seven (07) witnesses:
5.1 PW1 HC Sandeep deposed that on 28.08.2013, he was on patrolling duty alongwith Ct. Ranbir in the area of Sanjay Colony, OIA PhaseII and one secret informer met him and informed that one car make Fiat Palio bearing registration no. DL3CV1523 would come from the side of Power House and go towards Sanjay Colony in which there is illicit liquor and if raid is conducted, above mentioned car with illicit liquor may be recovered. He further deposed that thereafter, he requested 34 public persons to join the raid but none agreed and left the place without disclosing their names and addresses.
He further deposed that he put barricades at the spot with the help of Ct. Ranbir and at about 6:30 AM, he saw the above mentioned car which was pointed out by secret informer and he tried to stop the said car. He further deposed that upon seeing them, FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 3 of 12 accused driver stop his car near the barricade and he ran away from the spot after getting down from the car. He further deposed that the car was checked in which they found 42 carton box in which there were illicit liquors and he informed the same in PP PhaseIII, PS OIA. He further deposed that after sometime, ASI Suresh Chand, came to the spot and he handed over the above mentioned car with illicit liquors. He further deposed that whole illicit liquor was counted and there were total 42 carton box out of which 21 carton box were containing 4848 quarter bottles having label of impact grain whisky for sale in Haryana only and other 21 carton boxes were containing 5050 quarter bottles having label of Santra masaledar desi sharab for sale in Haryana only. He further deposed that 11 quarter bottles from each carton box were separated for sample purpose and remaining were kept in the said carton box and these were given serial no. 142 and sample bottles were given serial no. 1A42A. He further deposed that said carton boxes were kept in plastic kattas and its mouth were tied with white cloth and sealed with the seal of 'SC', samples bottles were also sealed with the seal of 'SC'. He further deposed that seizure memo of illicit liquor was prepared and the above mentioned car was also seized with illicit liquor vide PW1/A. He further deposed that one mobile phone make Nokia black colour and one RC copy were recovered from the above mentioned car vide Ex.PW1/B and form M29 was filled.
He further deposed that IO recorded his statement vide Ex.PW1/C and prepared rukka vide Ex. PW1/D and handed over the FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 4 of 12 same to him for registration of FIR. He further deposed that seal after use was handed over to him and after that, he went to PS and got the FIR registered and he handed over the seal to MHC(M). He further deposed that after registration of FIR, he came back at the spot and handed over original rukka and copy of FIR to IO and IO prepared site plan vide Ex.PW1/E. He further deposed that IO recorded his statement and statement of Ct. Ranbir u/s 161 Cr.P.C and thereafter, case property was deposited into malkhana and IO relieved him. He correctly identified the case property and seized car.
5.2 PW2 HC Satender proved the FIR Ex. PW2/A and endorsed the rukka Ex. PW2/B. 5.3 PW3 W/Ct. Suman deposed that on 13.12.2013, she alongwith ASI Suresh Chand went to JJ Camp Tigdi, Khanpur to arrest the accused Jai Rani and IO arrested the accused Jai Rani by preparing arrest memo Ex. PW3/A. She further deposed that thereafter, IO produced the accused Jai Rani in the court and handover the accused to the Saket lockup and thereafter, IO recorded her statement. She correctly identified the accused Jai Rani.
5.4 PW4 Ct. Ashok Kumar deposed that on 26.12.2013, he alongwith ASI Suresh Chand went to Sanjay colony, OIA PhaseII, New Delhi and met with accused Ramesh in his house at Y127, FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 5 of 12 Sanjay colony, OIA PhaseII, New Delhi and ASI Suresh Chand interrogated the accused Ramesh, who confessed that around 4 months ago, he was carrying illicit liquor in vehicle make Fiat Palio bearing registration no. DL3CV1523 towards Sanjay colony and on reaching Puri Chowk, Okhla PhaseII, he left the vehicle as there were police personnels were present for checking the vehicle. He further deposed that accused also confessed that his mobile phone was left in the vehicle and IO arrested the accused and his personal search was conducted vide Ex.PW4/A and Ex.PW4/B. He further deposed that disclosure statement of accused was recorded vide Ex.PW4/C and he was sent to the lock up after medical examination.
5.5 PW5 HC Ranbir Singh deposed similarly in the line of PW1 HC Sandeep and same is not being reiterated here for the sake of brevity.
5.6 PW6 HC Sanjay Kumar proved the DD Entry No. 43PP & 46PP both dt. 2728.08.2013 vide Ex. PW6/A and PW6/B. 5.7 PW7 SI Suresh Chand deposed on 28.08.2013, he received DD entry No. 46PP whereon he reached at Puri Chowk where Ct. Sandeep and Ct. Ranbir were already present and they apprehended a car bearing no. DL3CV1523 with illicit liquor. He further deposed that he inspected the vehicle in which he found 42 cartons of illicit liquor and seized the illicit liquor and car vide Ex. PW1/A and he took out 42 bottles by way of samples from each FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 6 of 12 carton and sealed them with the seal of SC and case property were also sealed with the seal of SC. He further deposed that thereafter he filled up form M29 and recorded the statement of Ct. Sandeeep Ex. PW1/C and prepared rukka thereon Ex.PW1/D. He further deposed that he handed over the rukka to Ct. Sandeep for registration of FIR, who went to PS, got the FIR registered and returned to the spot with copy of FIR. He further deposed that he prepared site plan Ex. PW1/E and on the thorough search of the vehicle, he found one mobile phone and photocopy of RC of said vehicle which were seized vide Ex. PW1/D. He further deposed that thereafter he recorded statement of all the witnesses and deposited case property. He further deposed that he served notice u/s 133 MV Act to the owner of vehicle Mrs. Jai Rani twice vide Ex. PW7/A & PW7/B. He further deposed that on 13.12.2013, he arrested the registered owner of the vehicle Jai Rani vide Ex.PW3/A and he also collected CDR and CAF of mobile seized from the car. He further deposed that the said mobile was found running in the name of one Ramesh Kumar and accordingly, he arrested him on 26.12.2013 vide Ex.PW4/A. He further deposed that on the same day, he produced the accused Ramesh for TIP but he declined to participate in the same and he recorded his disclosure statement Ex.PW4/C and prepared Form M29 Ex.PW7/C. He further deposed that he obtained result of samples and after completion of investigation, he prepared the charge sheet and submitted before the Court. He correctly identified the accused persons.
FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 7 of 126. It is pertinent to state in here that accused persons have admitted the Excise Report and TIP proceedings vide their separate statement recorded u/s 294 CrPC on 18.07.2019.
7. Thereafter, statement of accused persons U/s 313 CrPC was recorded separately on 18.07.2019, wherein accused persons denied all the allegations as leveled by the prosecution against them. They further chose not to lead any defence evidence and thereafter matter was fixed for final arguments.
8. I have heard Ld. APP for the state and Ld. counsel for the accused persons. I have carefully perused the case file.
9. Ld. APP for the state argued that huge quantity of the illicit liquor i.e., in 21 cartons there were 48 quarter bottles in each and in remaining 21 cartons there were 50 quarter bottles in each (2058 quarter bottles), have been recovered from the possession of accused Ramesh in the car belonging to the accused Jai Rani. It is further argued that there are no material contradiction amongst the statements of recovery witnesses i.e., PW1 HC Sandeep and PW5 HC Ranbir Singh regarding the date, time and place of recovery, quantity of recovered illicit liquor. It is further argued that there are many previous involvement of both accused persons and accused Ramesh had been previously convicted as well in cases of like nature. It is further argued that sample quarter bottles had been sent FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 8 of 12 to Excise Lab for obtaining expert opinion and as per result of analysis Ex.A1 presence of ethyl alcohol was positive. It is further argued that prosecution story cannot be washed out merely on the ground that public person was not joined as witness at the time of recovery. It further argued that prosecution has proved its case beyond reasonable doubt and both accused persons may be convicted for said offence.
10. On the other hand, it was argued by the counsel for the accused persons that :
a) There are several contradictions in the testimony of the prosecution witnesses.
b) No public person was joined as witness during the investigation despite the fact that recovery of illicit liquor had been effected from public place.
11. It is pertinent to state in here that there is no absolute command of law that the police official cannot be cited as witness as their testimonies should always be treated with suspicion. In Kashmiri Lal v. State of Haryana 2013 Cri.LJ 3036 it has been observed that ordinary the public at large show their disinclination to come forward to become witnesses. If the testimonies of the police officer is found to reliable and trustworthy, the court can definitely act upon the same.
In Ram Swaroop v. State (Govt. NCT) of Delhi 2013 Cri.LJ FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 9 of 12 2997 it has been observed that generally the public at large are reactant to come forward to depose before the court and therefore, prosecution case cannot be doubted for nonexamining the independent witnesses.
In Mritunjoy Biswas v. Pranab @ Kuti Biswas 2013 Cri.LJ 4212 SC it has been observed that it is well settled in law that the minor discrepancies are not be given undue emphasis. It is only the serious contradictions and omissions which materially affect prosecution case but not every contradiction on omission.
In Subodh & Anr. v. State of Tripura AIR 2013 SC 3726 it has been observed that unless the discrepancies are material so as to create a reasonable doubt about the credibility of the witnesses the court will not discard the evidence of the witnesses.
12. It is further pertinent to state in here that recovery of 42 carton boxes of illicit liquor containing 2058 quarter bottles had been effected from the possession of the accused Ramesh while he was transporting the same on a car bearing registration no. DL 3CV 1523. It is huge quantity of illicit liquor which was being transported by accused without having license or permission.
13. It is further pertinent to state in here that accused Jai Rani was registered owner of car bearing no. DL 3CV 1523 and no proof has been furnished by accused Jai Rani to satisfy the court that she had exercised due care in the prevention of the commission of offence FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 10 of 12 as alleged in this case.
14. Section 52 Delhi Excise Act, 2009 runs as under:
"Section 52. Presumption as to commission of offence in certain cases. (1) In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily. (2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence."
15. It is further pertinent to state in here that both accused persons were involved in many cases of like nature and it can be presumed against the accused Jai Rani u/s 52(2) Delhi Excise Act that she is guilty u/s 33 Delhi Excise Act read with Section 52(2) Delhi Excise Act.
16. It is further pertinent to state in here that there are no material/serious contradictions between the statement of recovery witnesses and no reason to throw the case of prosecution merely on FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 11 of 12 the ground that public persons were not joined as witness. It is well settled principles of law that testimonies of police witnesses cannot be discarded.
17. This court is of the considered opinion that the prosecution has been successful in proving that the accused Ramesh was found in possession of illicit liquor without any permit or license and thereby committed an offence punishable under Section 33 Delhi Excise Act. However, prosecution has failed to discharge the burden of proving the offence under Section 38 Delhi Excise Act. Accordingly, accused Ramesh is acquitted for the offence under Section 38 Delhi Excise Act. Prosecution has been successful in proving that registered owner of the vehicle in question being driven by the accused Ramesh is Jai Rani. No evidence/judgment has been placed on record by the accused persons to disprove this case.
18. In view of the law and facts discussed above, prosecution has proved its case beyond reasonable doubt. In view of the same accused Ramesh is convicted for the offence punishable under Section 33 Delhi Excise Act and further accused Jai Rani is convicted for the offence punishable under Section 52(2) read with Section 33 Delhi Excise Act.
ANNOUNCED IN OPEN COURT (HIMANSHU RAMAN SINGH) Today i.e. 22.01.2020 METROPOLITAN MAGISTRATE02 SED, SAKET COURTS, NEW DELHI FIR No.437/2013, PS OIA, State Vs. Ramesh & Anr. Page 12 of 12