Delhi District Court
State vs Rahul @ Rinku Etc on 7 December, 2024
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
RAHUL @ RINKU ETC. CASE No. 300/2017
FIR No. 185/2016
P.S- Khyala
U/S- 33/38/58(d)/52 (2) of
Delhi Excise Act, 2009
1. Date of commission of offence : 05.04.2016
2. Name of the Complainant : ASI Ashok Kumar
3. Name of the accused,
and his parentage and residence : (i) Rahul @ rinku S/o Late Sh.
Budh Raj R/o H.No.5C/22,
Vishnu Garden, New Delhi &
(ii) Anju W/o Sh. Rahul,
H.No.5C/22, Vishnu Garden,
New Delhi
4. Date when judgment : 26.10.2024
was reserved
5. Date when Judgment : 07.10.2024
was pronounced
6. Offence Complained of : Section 33/38/58/52(2) of Delhi
or proved Excise Act 2009
7. Plea of accused : Pleaded not guilty
8. Final Judgment : Acquitted
FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 1
1. BRIEF FACTUAL POSITION:-
1.1 The brief facts of the case of the prosecution are that on 05.04.2016, at
about 03.00 AM in front of Chameli Park near Kudedan, B/2 Block, Raghubir Nagar, Delhi within the jurisdiction of PS - Khyala, accused Vijay alongwith CCL was found in possession of illicit liquor on the vehicle i.e. motorcycle bearing registration no. DL4SND-7616 without any license, permit or pass and in contravention of the Delhi Excise Act, 2009. The vehicle in question was found registered in the name of accused Raj Kumar. Case property was seized and the present case was registered, starting the investigation in the present matter.
1.2. After completion of investigation, chargesheet was filed on 03.10.2015 indicting the accused persons for commission of the offence U/s 33/38/58/52 (2) of Delhi Excise Act, 2009. Ld. Predecessor took cognizance and issued summons to the accused persons on 21.07.2016. Copy of the chargesheet in compliance with Section 207 CrPC was supplied to accused persons.
1.3. Charge for the offence U/s 33/38/58 of Delhi Excise Act, 2009 was framed against the accused Rahul @ Rinku on 27.08.2018 to which he pleaded not guilty and claimed trial and charge for the offence u/s 52 (2) Delhi Excise Act, 2009 was framed against the accused Anju W/o Fahul on 27.08.2018 to which he pleaded not guilty and claimed trial. Vide statement u/s 294 CrPC, accused has admitted DD No. 48 B dated 05.04.2016 and Excise result dated 07.06.2016 as Ex.A1 to Ex.A2.
FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 2
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of its case, has examined 07 witnesses in total.
The details of the witnesses examined along with documents exhibited thereby are given as under:
S. Name of Documents Dates of Dates of
No. Prosecution Exhibited in examination cross-
witnesses Evidence. -in-chief. examination
PW-1 Sh. Gopal (I) Record 17.07.2019 17.07.2019
Krishan pertaining to
vehicle bearing
registration no.
DL8SBV-4092
- Ex.PW1/A
PW-2 ASI Ashok (I) Form M-29 17.07.2019 17.07.2019 Kumar - Ex.PW2/A
(ii) Seal after use -
Ex.PW2/B
(iii) Seizure memo of illicit liquor -
Ex.PW2/C
(iv) Seizure memo of scooty - Ex.
2/D
(v) Rukka / tehrir -
Ex.PW2E FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 3
(vi) Site plan -
Ex.PW2/F
(vi) Copy of destruction order alongwith two photographs -
Ex. P2
(vii) Quarter
bottle - Ex.P3
PW-3 Retired SI (I) Copy of FIR 14.02.2023 14.02.2023
Shanti - Ex.PW3/A
Swaroop (OSR)
(ii) Certificate
u/s 65 B of IEA
- Ex.PW3/B
(iii)
Endorsement
i.e. DD No. 43
A - Ex.PW3/C
PW-4 ASI Anil (I) Arrest 13.04.2023 13.04.2023
Kumar memo of
accused Rahul
- Ex.PW4/A
(ii) Personal
search memo of
accused Rahul
- Ex.PW4/B
PW-5 W/ Ct. (I) Arrest 13.04.2023 13.04.2023
Monika memo of
accused Anju -
Ex.PW5/A
PW-6 HC Madan (I) Copy of 03.06.2023 03.06.2023
FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 4 Lal certificate attached to the file -
Ex.PW6/A
PW-6 SI (i) original 23.08.2023 23.08.2023
Satnarayan register bearing
the entry no.
1287 dated
05.04.2016 -
Ex.PW6/A
(OSR)
PW-7 ASI NIL 10.04.2024 10.04.2024
Rajender
Singh
2.2 PW-1 was Mr. Gopal Krishan from the Transport Department who had brought the details pertaining to the two wheeler seized, which was found to be registered in the name of accused Anju.
2.3 PW-2 was ASI Ashok Kumar who was posted as ASI. On 05.04.2016, he alongwith Ct. Anil Kumar left the PS at night time for patrolling duty. When they reached at Ganda Nala Road at about 09.00 pm, he saw a person coming from the side of Paschim Vihar Cut on scooty bearing registration No. DL8SBV-4092 and on seeing the police party, the accused tried to take a sharp U turn however, he fell on the road. It was found that he was carrying illicit liquor in two cartons which were placed on the front footrest of the scooty. He disclosed his name as Rahul @ Rinku. All the cartons were checked and each was found containing 48 quarter bottles of Impact Grain Whisky for sale in Haryana only. Efforts were made to join the public persons as witnesses but none agreed. From each carton, one quarter FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 5 bottle was taken out as sample and the remaining were placed in their respective cartons. Each sample bottlte was moored from the bottleneck with white cloth and sealed with the seal of AK. The remaining cartons were wrapped in white cloth and sealed with the seal of AK. Then the recovered liquor was taken into possession and form M-29 was prepared. Then seal after use was handed over to Ct. Anil and seizure memo was prepared. The scooty in question was also taken into possession vide seizure memo. Thereafter, the rukka/ tehrir was prepared. The same was handed over to Ct. Anil. After the registration of the FIR, Ct. Anil returned to the spot with HC Rajender to whom the remaining investigation was entrusted. Then PW-2 handed over all the prepared documents as well as custody of the accused to IO HC Rajender. Site plan was then prepared by the IO at the instance of PW-2, his statement was recorded and thereafter, PW-2 left the spot. He also identified the sample produced by the MHC (M).
2.4 PW-3 i.e. Retired SI Shanti Swaroop deposed that the rukka/ tehrir was received by him at 10.30 pm on 05.04.2016 on the basis of which he had registered the FIR. One copy was handed over to Ct. Anil and the necessary certificate u/s 65 B IEA was issued.
2.5 PW-4 was ASI Anil Kumar who stated that on 05.04.2016, he alongwith ASI Ashok left the PS at night time for patrolling duty. When they reached at Ganda Nala Road at about 09.00 pm, they saw a person coming from the side of Paschim Vihar Cut on scooty and on seeing the police party, the accused tried to take a sharp U turn, however, he fell on the road. It was found that he was carrying illicit liquor in two cartons which were placed on the front footrest of the scooty. He disclosed his name as Rahul @ Rinku. All the cartons were checked and each FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 6 was found containing 48 quarter bottles of Impact Grain Whisky for sale in Haryana only. Efforts were made to join the public persons as witnesses but none agreed. From each carton, one quarter bottle was taken out as sample and the remaining were placed in their respective cartons. Each sample bottle was moored from the bottleneck with white cloth and sealed with the seal of AK. The remaining cartons were wrapped in white cloth and sealed with the seal of AK. Then the recovered liquor was taken into possession and form M-29 was prepared. Then seal after use was handed over to PW-4 and seizure memo was prepared. The scooty in question was also taken into possession vide seizure memo. Thereafter, the rukka/ tehrir was prepared. The same was handed over to PW-4. After the registration of the FIR, PW-4 returned to the spot with HC Rajender to whom the remaining investigation was entrusted. Then PW-1 handed over all the prepared documents as well as custody of the accused as well as case property to IO HC Rajender. Site plan was then prepared by the IO at the instance of PW-1. The second IO then arrested the accused and conducted his personal search. Thereafter, they returned to the PS, deposited the case property in the malkhana and lodged the accused at the lock up at PS Rajouri Garden after conducting medical examination. The case property was duly identified by the witness.
2.6 PW-5 was W/ Ct. Monika who stated that on 10.05.2016 she had joined the investigation alongwith IO HC Rajender. On that day, accused Anju W/o Rahul came to the PS to join the investigation and disclosed that her husband namely Rahul was carrying illicit liquor on 05.04.2016 on the scooty registered in her name. She was arrested and released on police bail.
FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 7 2.7 PW-6 was HC Madan Lal who took the sealed samples from the malkhana to the Excise Lab, ITO.
2.8 PW-6 SI Satyanarayan who was examined on 23.08.2023 was also given the number PW-6. He brought the original register no. 19 & 21 regarding seizure of the illicit liquor. He furnished the said record.
2.9 PW-7 was ASI Rajender Singh who deposed that on 05.04.2016 he received the Fir copy and original rukka after which he alongwith Ct. Anil reached the spot where they met ASI Ashok handed over the custody of accused, case property and documents at the instance of ASI Ashok, he prepared the site plan and they discharged ASI Ashok. He made an enquiry from the accused and recorded his disclosure statement. He made efforts to trace the source of the illicit liquor but could not trace it. He arrested the accused, personally searched him, deposited the case property with the malkhana and got the medical examination of the accused conducted. He obtained the particulars of the seized vehicle from the Transport Authority and formally arrested accused Anju. Thereafter, the sample of the seized liquor was sent to the Excise Lab, then statements of witnesses were recorded and the chargesheet was filed after completion of investigation.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 After the prosecution evidence was closed, the entire incriminating evidence was put to accused persons in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C.
and statements of accused persons were recorded separately on 04.09.2024 FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 8 wherein they both denied the allegations and tendered explanation that they had been falsely implicated. They opted not to lead any DE in their defence.
4. ARGUMENTS:
4.1 Ld. APP for the State has argued that the accused Anju was registered owner of the two wheeler on which the illicit liquor was being transported and accused Rahul had been apprehended alongwith the said liquor. On the other hand, Ld. Counsel for the accused persons argued that there is no legally admissible evidence against the accused persons and that the accused persons have been falsely implicated in the present case. He submitted that the recovery itself was not duly proved as no videography, photography, examination of any public witness was done. He submitted that the accused persons are entitled to be acquitted.
5. APPRECIATION OF EVIDENCE AND FINDINGS ON MERITS:
5.1 In the present case, the accused persons has been charged with the offence U/s 33/38/58(d)/52(2) Delhi Excise Act, for being found in possession of illicit liquor without any licence, permit or pass, and in contravention of the notification issued by the Delhi Government as well as for the ownership of the vehicle on which the said liquor was being carried.
5.2 Section 33 of Delhi Excise Act, 2009 states that:
whoever, in contravention of provisions 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 FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 9 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 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 with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees.
5.3 Section 38 of Delhi Excise Act, 2009 states that:
whoever has in his possession any liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six months and fine which may extend to one lakh rupees .
5.4 Section 58 of Delhi Excise Act, 2009 states that:
Whenever an offence has been committed, which is punishable under this Act, following things shall be liable to confiscation, namely-(a)any intoxicant, material, still, utensil, implement, FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 10 apparatus in respect of or by means of which such offence has been committed;(b)any intoxicant unlawfully imported, transported, manufactured, sold or brought along with or in addition to, any intoxicant, liable to confiscation under clause (a);
(c)any receptacle, package, or covering in which anything liable to confiscation under clause (a) or clause (b), is found, and the other contents, if any, of such receptacle, package, or covering;(d)any animal, vehicle, vessel, or other conveyance used for carrying the same.
5.5 Section 52 (2) of Delhi Excise Act, 2009 states that:
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.
5.6 This court now proceeds to analyse the evidence adduced in the present case. Firstly regarding the non joining of public witnesses, it is important to revisit the provisions as follows:
5.7 Section 100(4) Cr.P.C states that, FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 11 "before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do"....
5.8 Section 37 Cr.P.C. states that, "every person is bound to assist a Magistrate or police officer reasonably demanding his aid-
(a) in the taking or preventing the escape of any other person whom such Magistrate or police Officer is authorized to arrest ; or
(b) in the prevention of suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property".
5.9 Section 42 Cr.P.C. states that, "when any person who, in the presence of the police officer, has committed or has been accused of FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 12 committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such persons have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate, if so required;
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction".
5.10 Section 187 IPC states that, " whoever, being bound by law to render or furnish assistance to any public servant in the execution of FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 13 his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both;
and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
5. 11 It is not the case of the prosecution, in the course of arguments, that no public witnesses were available. It was admitted by PW-2 in his cross- examination that public persons were present at the spot however he stated that they had requested some passersby to join the proceeding however none was willing to join the same. Moreover, if such witnesses were present, IO has failed to explain as to why their names and residence details were not recorded, or why was any notice not issued to them, as per the aforesaid discussed provisions. When a statutory provision mandates that an FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 14 independent witness has to be joined in the investigation, the IO is duty bound to comply with the same. He should at least make sincere efforts in this regard. If someone refuses to join the investigation without any justifiable reason, proper notice u/s 187 IPC should have been given to him. Merely stating that the public person refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency, more so, when the IO failed to even record the names and details of such person, and failed to take any required steps in terms of Section 37 and 42 of Cr.P.C. PW-4 has also corroborated the version of PW-1 stating that there were public persons present at the spot, however, they were not joined in the investigation.
5.12 In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses".
5.13 In the present case such sincere efforts have not been shown and the non joining of public witnesses becomes even more circumspect as the police officials have made no effort to photograph or videograph the recovery proceedings. Hence, the allegation of the accused Rahul @ Rinku that the recovery was planted upon him, cannot be ruled out.
5.14 There is a discrepancy amongst the witnesses as to the manner in which the FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 15 accused Rahul @ Rinku was apprehended. As per the version of PW-2, The accused tried to flee away but was apprehended after chasing for 08-10 feet. However, PW-4 has not given any such narration of the accused trying to flee from the spot. There are also discrepancies in the sequence of events narrated by the IO i.e. PW-7. As per his testimony, he had discharged PW-2 ASI Ashok Kumar without recording his statement and all the statements of the witnesses were recorded after sending the recovered liquor to the Excise Lab. However, as per the testimony of PW-2 ASI Ashok, his statement was recorded by PW-7 ASI Rajender on the date of the recovery itself immediately after the site plan was recorded and before PW-2 was discharged from the site of recovery.
5.15 The IO i.e. PW-7 also claimed in his court testimony that he had tried to trace the source of liquor seized in the present matter however neither has the prosecution prompted the information nor has the IO himself stated what steps were taken by him during investigation to trace the source of the liquor seized. There are other discrepancies regarding the time at which Ct. Anil had come back to the spot after the registration of the FIR, after which PW Ashok Kumar had left the spot and finally the time at which the remaining witnesses left the spot with the recovered liquor and the accused.
5.16 With respect to the seal affixed on the sample and remaining liquor, PW-2 first stated that he did not remember the exact date and time on which he got the seal back from Ct. Anil and then stated that he had received it back from Ct. Anil on the next day. In his examination in chief he stated that seal was handed over vide memo Ex.PW2/B whereas in his cross examination, he stated that no handing FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 16 over or return memo of the seal was prepared. Similarly, PW-4 admitted that no such memo was prepared and the seal was returned on the next day itself. It is conceded, hence, that the seal was not handed over to any independent witness, and remained, at best, with the police officials of same PS. Thus, the possibility of case property being tampered with is extremely strong, and cannot be ignored and therefore manipulation of the said sample or seized property can not be ruled out.
5.17 Also, the seizure memo in the present case is stated to have been made prior to registration of FIR by all the witnesses. PW-1 and PW-4 both submitted in their court testimony that the seizure memo was prepared before PW-4 left for the registration of the FIR, however, the same bears complete particulars of the present case FIR. This raises doubt on the proceedings as the implication is that either the FIR was registered prior in time or the document in question was prepared later on at the PS. In both cases, the benefit of doubt goes to the accused persons.
5.18 Most importantly, the very existence of violation of the excise policy has been brought into question as only two quarter bottles among those seized were sent for chemical analysis and found to contain alcohol. The presence of alcohol in the remaining allegedly recovered liquor bottles has not been proved by the prosecution. Now, since the State has only found two bottles containing 180 ml alcohol, allegedly recovered from the accused persons, an offence under Section 33/38 of the Delhi Excise Act, 2009 cannot be said to have been made out, as the same falls within the maximum permissible limit specified under Rule 20 of the Delhi Excise Rules, 2010. No batch number of the remaining bottles corresponding FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 17 to the sample seems to have been noted to indicate similarity of contents. Hence, the very violation of the rules of Delhi Excise Act so as to violate Sections 33/38 have not been cogently established by the prosecution.
5.19 The per-requisite to hold any person guilty under Section 52 (2) of the Excise Act is that the accused must be the owner of the vehicle which has been used in the commission of an offence under the Delhi Excise Act. However, since there is no cogent material on record to sufficiently show the culpability of accused Rahul @ Rinku under the abovesaid act, no culpability can be cast upon accused Anju for ownership of the said vehicle.
5.20 In view of the aforesaid discussion, the recovery as alleged by the prosecution i.e. illicit liquor from the possession of the accused namely Rahul @ Rinku cannot be stated to have been proved beyond reasonable doubt. Further, in regards to the allegations upon the co-accused namely Anju who has been charged u/s 52 (2) of Delhi Excise Act, it was imperative upon the prosecution to prove its case beyond reasonable doubt upon the main accused and it was only then that the liability of committing the offence could be fastened upon the co-accused Anju. Since, the alleged recovery from the main accused itself could not be proved beyond reasonable doubt, hence the question of fastening the liability of the co- accused u/s 52(2) of Delhi Excise Act does not arise.
5.21 The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The standard of proof in criminal cases is not preponderance of probabilities but proof beyond all reasonable doubts.
FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 18 It is a settled principle of criminal jurisprudence, that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case it is apparent, that the case of the prosecution suffers from several glaring loopholes. Under the circumstances, it would not be proper to convict the accused persons merely on the basis of testimony of the police officials as noted above. Hence, accused persons namely Rahul @ rinku S/o Late Sh. Budh Raj R/o H.No.5C/22, Vishnu Garden, New Delhi & Anju W/o Sh. Rahul, H.No. 5C/22, Vishnu Garden, New Delhi are acquitted of the offence punishable under Section 33/38/58/52 (2) of Delhi Excise Act, 2009, by giving them the benefit of doubt.
File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN SUKRITI Digitally signed by SUKRITI SINGH COURT ON 07.12.2024 SINGH Date: 2024.12.12 18:21:15 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI Digitally signed by Containing 19 pages, all signed by the presiding officer SUKRITI SUKRITI SINGH SINGH Date: 2024.12.12 18:21:19 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI FIR No. 185/ 16 PS Khyala U/s 33/38/58/52 (2) Delhi Excise Act 19