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Delhi District Court

State vs Shanker on 28 February, 2023

 IN THE COURT OF MS. DEEKSHA SETHI, MM-03,
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI


CNR No.         :         DLSW02-036611-2019

FIR No.         :         21/2019

U/s             :         33 Delhi Excise Act

P.S.            :         Bindapur

State     versus Shanker


a) ID. No. of the Case               : 13660/2019
b) Name & address of the             : Ct. Dinesh Kumar
    Complainant                        Belt No 1253/DW,
                                       PS Bindapur, New Delhi.
c) Name & address of                 : Shanker
   accused                             S/o Late Sh. Govend
                                       R/o H.No. RZ-B-115,
                                       Pratap Garden, Bindapur,
                                       New Delhi.
d) Date of Commission of             : 11.01.2019
offence

e) Offence complained of             : 33(1) Delhi Excise Act

f) Plea of the accused               : Pleaded not guilty.

g) Ld. APP for the State             : Sh. Manish Kaushik

h) Final Order                       : Acquitted.

State v/s Shankar                                Page 1 of 15
Cr. Case No. 13660/2019
    h) Date of Institution                   : 17.07.2019

   i) Judgment Pronounced on                : 28.02.2023

                             JUDGMENT

Brief facts

1. The prosecution version in brief is that on 11.01.2019, Ct. Dinesh Kumar (hereinafter referred to as the 'complainant') was on patrolling duty and at about 11:35 AM, when he had reached opposite Peer Baba Majar at DDA Flats, Bindapur, one person namely Shanker (hereinafter referred to as 'accused') was carrying one heavy brown and black colored bag over his shoulder. After seeing Ct. Dinesh Kumar, the accused started walking in the opposite direction. The complainant stopped the accused. When Ct. Dinesh Kumar checked the bag, it was found to be containing quarter bottles of illicit liquor. Thereafter, the complainant informed about the said incident at the police station and police official from PS Bindapur reached at the spot. Thereafter, an FIR bearing no. 21/2019 u/s 33 Delhi Excise Act was registered at PS Bindapur. Investigation of the case was thereafter handed over to Investigating Officer ASI Bharatvir.

Proceedings before the Court

2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Shanker. After taking cognizance of the offence, the accused was summoned to face trial.

3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 (1) Delhi Excise Act was framed against him, to which he had pleaded not guilty and claimed trial.

4. During the trial, prosecution has examined the following witnesses:

(i) PW-1 HC Dinesh Kumar has deposed that he was posted at PS Bindapur as a constable on 11.01.2019 and on the said date, he was on patrolling duty and he was present at beat no. 4. At about 11:35 AM, when he reached in front of Peer Baba Majar, DDA Flats, Bindapur road, he saw that one person was carrying a heavy brown and black colored bag on his shoulder and he was going from DDA Flats to Pratap Garden. On seeing him (PW-1), the said person started walking away quickly. PW-1 stopped him and on checking the said bag, he found out that it contained quarter bottles of illicit liquor. PW-1 asked the name of the accused, who disclosed his name as Shanker s/o Sh. Govind Singh. He had shared the said information with the duty officer of the police station. IO ASI Bharatvir had reached at the spot and he (PW-1) had handed over the custody of the accused along with illicit liquor to the IO.

'SRA best quality' was mentioned on the recovered State v/s Shankar Page 3 of 15 Cr. Case No. 13660/2019 bag. Upon checking, the IO found out that the bag contained 48 quarter bottles (180 ml each) of illicit liquor (Asli Santra Masaledar Sharab for sale in Haryana only). 'ADS' was mentioned over the cap of each quarter bottle. IO had taken one quarter bottle as sample and had put back the remaining 47 quarter bottles into the bag. IO had tied the opening of the bag with a white cloth and sealed it with the seal of 'BS'. He (the IO) had also tied the opening of the sample with a white cloth and sealed it with the seal of 'BS'. The IO had filled Form M-29 at the spot. The seal was handed over to him (PW-1) by the IO after use. The recovered illicit liquor was seized by the IO vide seizure memo Ex. PW-1/A. IO had recorded his statement (Ex. PW-1/B) and he had prepared a tehrir. At about 1:15 PM, IO had handed over the tehrir to him and had sent him for registration of FIR. After getting the FIR registered, he came back at the spot and handed over the original tehrir as well as a computerized copy of the FIR to the IO. IO recorded the disclosure statement (Ex. PW-1/C) of the accused, arrested him vide memo Ex. PW-1/D and conducted his personal search vide memo Ex. PW-1/E. Nothing was recovered during the personal search of the accused. He had taken the accused to DDU Hospital and got medical examination of the accused conducted. The witness correctly identified the accused in court. The State v/s Shankar Page 4 of 15 Cr. Case No. 13660/2019 MHC(M) had produced the destruction order of the case property bearing no. F.Conf./2020/7517 dated 11.02.2021 issued by AC(Excise) in the present case. The same was exhibited as Ex. P-1. MHC(M) had also produced the sample of case property, i.e., one quarter bottle of Asli Santra Masaledar Desi Sharab for sale in Haryana only (180 ml), which was correctly identified by the witness and was exhibited as Ex. P-2. This witness was thoroughly cross- examined by Ld. Defence counsel.

(ii) PW-2 HC Arvind has deposed that on 11.01.2019, he was posted at PS Bindapur as MHC(M) CP. On that day IO Bharatvir Singh handed over a sealed case property along with sealed sample to him and the same were deposited at the malkhana of police station. He made an entry in this regard in register no. 19 vide mud no. 2291. The relevant record was exhibited as Ex. PW-2/A. On 27.03.2019, he had handed over the sample to Ct. Dheeraj for depositing the same at Excise office, ITO vide RC no. 55/21/19. On the same day, he came to the police station and handed over a copy of RC No. 55/21/19 which was marked as Mark A. This witness was cross-examined by Ld. Defence counsel.

(iii) PW-3 HC Dheeraj has deposed that on 27.03.2019, he was posted at PS Bindapur as a constable and on the directions of the IO, he had taken sealed exhibits State v/s Shankar Page 5 of 15 Cr. Case No. 13660/2019 along with sample and Form No. 29 from MHC(M) and deposited the same at Excise office, ITO for result analysis vide RC No. 55/21/19. He had handed over the receipt regarding the same to the MHC(M). The witness stated that he did not tamper with the exhibits during the time they were in his possession. This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.

(iv) PW-4 ASI Bharatvir has deposed that on 11.01.2019, he was posted as ASI at PS Bindapur. On receiving DD No. 36B regarding recovery of illicit liquor, he reached at the spot, i.e., on road in front of Pir Baba Majar, DDA Flats, Bindapur, where he met with Ct. Dinesh, who had produced one Shanker along with illicit liquor before him. He checked the bag which was recovered from the possession of the accused and he found out that it contained 48 quarter bottles 180 ml each of illicit liquor (Asli Santra Masaledar Desi Sharab for sale in Haryana only). 'ADS' words were written on the cap of each quarter bottle and 'SRA best quality' was mentioned on the bag. He had taken one quarter bottle as sample. He had closed the bag and sealed it with a white cloth and seized it vide seizure memo Ex. PW-1/A and sealed it with the seal of 'BS'. He had filled Form M-29 at the spot. He had sealed the sample with the seal of 'BS' and had handed over State v/s Shankar Page 6 of 15 Cr. Case No. 13660/2019 the seal after use to Ct. Dinesh. He prepared the tehrir Ex. PW-4/A and handed it over to Ct. Dinesh to get the FIR registered. Thereafter, Ct. Dinesh returned at the spot and handed over a computerized copy of FIR along with tehrir to him (PW-4). He had prepared the site plan Ex. PW-4/B at the instance of Ct. Dinesh. He recorded the disclosure statement (Ex. PW-1/C) of the accused, arrested the accused vide memo Ex. PW-1/D and conducted his personal search vide memo Ex. PW-1/E. Ct. Dinesh took the accused for his medical examination to a hospital. The case property was deposited at the malkhana of the police station. The witness correctly identified the accused in court. The MHC(M) had produced the destruction order of the case property bearing no. F.Conf./2020/7517 dated 11.02.2021 issued by AC(Excise) in the present case. The same was exhibited as Ex. P-1. MHC(M) had also produced the sample of case property, i.e., one quarter bottle of Asli Santra Masaledar Desi Sharab for sale in Haryana only (180 ml), which was correctly identified by the witness and was exhibited as Ex. P-2. This witness was thoroughly cross- examined by Ld. Defence counsel.

5. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR bearing no. 21/2019, DD No. 36B dated 11.01.2019 and result analysis of Excise Control Laboratory. The above-said documents State v/s Shankar Page 7 of 15 Cr. Case No. 13660/2019 were exhibited as Ex. A-1, Ex. A-2 and Ex. A-3 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.

6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC was recorded on 14.02.2023 wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was innocent and falsely implicated. The accused chose not to lead any evidence in his defence.

7. It is argued by Sh. Manish Kaushik, Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of 48 quarter bottles of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.

8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.

9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.

Findings of the Court

10. It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.

11. The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.

12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the cross- examination of PW-1 Ct. Dinesh Kumar (the complainant) and PW-4 ASI Bharatvir (the IO) reveals that the IO had asked public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case. In a case titled as Nanak Chand State v/s Shankar Page 9 of 15 Cr. Case No. 13660/2019 Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:

"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.'' (Emphasis supplied)

13. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.

14. Perusal of the statement of PW-1 Ct. Dinesh Kumar and PW-4 ASI Bharatvir reveals that the IO had filled the Form M-29 on the spot. However, the prosecution has not placed on record any document to prove the same. PW-2 HC Arvind Kumar, who was the MHC(M) at the relevant time, has also deposed that the IO had handed over the sealed case property and sealed sample to him on 11.01.2019.

PW-2 is also silent about the fact whether From-M29 was deposited with the seized samples or not. Thus, failure to prove the deposition of Form 29 with the seized sample in the malkhana, creates doubt on the prosecution version.

15. Perusal of the record further reveals that there is a delay of about seventy-five days in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the CFSL at the earliest. The relevant paragraph of the said judgment runs as under:

"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."

16. In the instant case, alleged recovery was made on 11.01.2019 yet the samples were sent to the Excise Control Laboratory for examination on 27.03.2019, i.e., after about more than seventy-five days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the State v/s Shankar Page 11 of 15 Cr. Case No. 13660/2019 possession of police only. Thus, it creates a doubt on the prosecution version.

17. Perusal of the record further reveals that PW-4 ASI Bharatvir (the IO) has stated that he had prepared the seizure memo Ex. PW-1/A of the illicit liquor and rukka was thereafter prepared and sent to the police station for registration of FIR through PW-1 Ct. Dinesh Kumar. Thereafter, present FIR was registered. It is, therefore, clear that the seizure memo of the case property was prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the seizure memo Ex. PW-1/A, however, surprisingly it bears the FIR number and it is thus, amazing since the number of the FIR could have come to his knowledge (PW-4) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo which came into existence before registration of the FIR. However, as discussed above, the seizure memo Ex. PW-1/A bears the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:

"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F State v/s Shankar Page 12 of 15 Cr. Case No. 13660/2019 was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."

(Emphasis supplied)

18. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:

"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and State v/s Shankar Page 13 of 15 Cr. Case No. 13660/2019 in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."

(Emphasis supplied)

19. Let this court now analyse the evidence appearing on record keeping in mind the above judgments of the Hon'ble High Court of Delhi. In the present case, PW-4 ASI Bharatvir, who is the Investigating Officer has categorically deposed in his cross-examination that he had prepared the seizure memo Ex. PW-1/A before the tehrir was prepared. In such a scenario, it remains unexplained as to how the FIR No. and its details figure on the top of the document Ex. PW-1/A. This creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said document was prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.

20. Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is State v/s Shankar Page 14 of 15 Cr. Case No. 13660/2019 of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a brown and black colored bag which contained illicit liquor was recovered from the possession of the accused. The accused Shanker is, therefore, acquitted of the offence u/s 33 (1) Delhi Excise Act.

21. This judgment contains 15 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.

22. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.

Digitally signed by ANNOUNCED IN THE OPEN COURT Deeksha Deeksha Sethi Date:

TODAY, i.e., ON 28.02.2023 Sethi 2023.02.28 13:08:48 +0530 Deeksha Sethi Metropolitan Magistrate-03 South-West District/New Delhi 28.02.2023 State v/s Shankar Page 15 of 15 Cr. Case No. 13660/2019