Delhi District Court
State vs Munshi Ram on 7 October, 2024
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF JUDICIAL MAGISTRATE SOUTH
DISTRICT, SAKET COURT, NEW DELHI
CR CASE/ 2034429/2016
STATE Vs. MUNSHI RAM
State v. Munshi Ram
FIR No. 350/2011
Police Station : Saket
Under Section : 33 Delhi Excise Act, 2009
Date of institution : 07.05.2012
Date of reserving : 31.08.2024
Date of pronouncement : 07.10.2024
JUDGMENT
a) Serial number of the case : 2034429/2016
b) Date of commission of : 10.11.2011
Offence
c) Name of the complainant : ASI Anand Prakash
d) Name, parentage and : (1) Munshi Ram S/o Sh. Moti Ram R/o
village Manoharpur, Jaipur, Rajasthan,
address of the accused and
(2) Saroj Devi W/o Late Sh. Sina Ram
R/o H.No. 166, Gali No. 11B,
Swatantra Nagar, Narela, New Delhi
(convicted u/s 33 r/w 52 Delhi Excise
Act vide order dated 13.02.2017)
e) Offence complained of : 33 Delhi Excise Act
f) Plea of the accused : Accused pleaded not guilty
g) Final order : Convicted
h) Date of final order : 07.10.2024
State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 1 of 15
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused person namely Munshi Ram is being convicted for the offence punishable under Section 33 Delhi Excise Act, 2009 in this case FIR No. 350/2011 (PS Saket) by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on 10.11.2011 at about 04:00 am, SI Paramjeet Singh along with ASI Anand Prakash, HC Suresh Chand, HC Asgar Ali, HC Mukesh, HC Randhawa, HC Balbir and Ct Umesh reached at MB Road, Asian Market in vehicle no. DLNA6755 where they started checking the vehicles by placing barricades on road. At about 04:45 pm, one black colour car (make Fiat Palio) bearing no. DL3CAJ3949, which was having black film on window, came from Mehrauli side in high speed and after seeing that the checking was happening, the driver of the vehicle tried to turn the car. On seeing the same, HC Suresh Chand and HC Asgar Ali apprehended the driver of the vehicle namely Munshi Ram and they found 34 pettis of illicit liquor make Joshila Santra for sale in Haryana only measuring 180 ml each and 17 pettis make Golden Border Whisky for sale in Haryana only on checking the car. ASI Anand Prakash asked 3-4 public persons to join the investigation, however, they did not join the same and left the spot by giving some reasons. No notice was served due to paucity of time. The recovered illicit liquor of 34 petties was given serial no. D1 to D34 and 50 quarter bottles were found in each petti and sr. no. E1 to E17 was given to 17 petties, which were having 48 quarter bottles each. One sample bottle was taken out from each petti and they were given sr. no. as D/S-1 to State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 2 of 15 D/S-34 and E/S-1 to E/S-17. Sample bottles and remaining case properties were sealed with AP seal, separately. Form M29 was filled. After sealing the case property, the seal was handed over to HC Mukesh. The case property and the car were seized. Thereafter, the investigation was concluded and the present chargesheet was filed.
CHARGE
3. Vide order dated 08.08.2013, charge for the offence punishable under Section 33 Delhi Excise Act, 2009 was framed against accused Munshi Ram, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 28.09.2022, in compliance to the provisions of Section 294 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), the accused Munshi Ram admitted the genuineness of: i) Copy of Register no. 19; and ii) Excise Report dated 30.11.2011 which are Ex. A1 to Ex. A2.
EVIDENCE OF THE PROSECUTION
5. To prove its case, the prosecution examined six witnesses i.e. PW-1 ASI Asgar Ali, PW-2 Sh. Om Prakash, PW3 ASI Mukesh Kumar, PW4 SI Anand Prakash, PW5 ASI Ashok Kumar and PW6 SI Suresh Chand.
6. PW-1 ASI Asgar Ali deposed that on 10.11.2011 at about 03:45 pm, he along with SI Paramjeet, SI Anand Prakash, HC Mukesh, HC Randhawa, HC Balbir, HC Suresh and Ct Umesh went to MB Road, Saket, near Asian Market in a government vehicle bearing no. DL1VA6755 (make Sawraj Majda) and they reached there at about State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 3 of 15 04:00 pm where they placed the barricades on road and started checking the vehicles. At about 04:45 pm, they found one black car (make Fiat Palio) bearing no. DL3CAJ3949 which came from Mehrauli side to towards Khanpur, in high speed and after looking at the barricades, the driver of the car turned back the said vehicle which raises suspicion in the mind of police staff. Thereafter, PW1 with the help of his staff, stopped the alleged vehicle and the person seated on driver disclosed his name as Munshi Ram. On checking the vehicle, they found illicit liquor inside the car which was when counted, they found 51 cartons, out of which 34 cartons (containing 50 quarter bottles in each box) were of make Santra Desi Sharab for sale in Haryana only and 17 cartons (48 quarter bottles in each box) were Golden Boarder Whisky (English Sharab) for sale in Haryana only. ASI Anand Prakash took out one quarter bottle from all 34 cartons and marked them as D/S1 to D/S34 and also had taken out one quarter bottle from all 17 cartons and marked them as E1 to E17. IO then sealed all the quarter bottles with the seal of AP and the remaining liquor. IO filled form M29, handed over the seal to HC Mukesh, seized the illicit liquor and the alleged car, prepared the rukka and handed over the same to HC Mukesh and sent him to PS for registration of FIR. After registration of FIR, HC Mukesh came back at the spot and handed over copy of FIR and original rukka to ASI Anand Prakash for further investigation. During investigation, IO arrested the accused, conducted personal search, recorded his disclosure statement and prepared the site plan. Then they went to PS where the case property was deposited in malkhana. Accused was taken for medical examination and then kept behind the bars. IO recorded the statement of PW1 u/s 161 of the Code. On 21.11.2011, PW1 took the sealed samples from malkhana on the directions of IO State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 4 of 15 vide RC no. 105/21/11 and deposited the same with Excise Department, ITO, Vikas Sadan. After reaching at PS, he handed over the receipt to MHC(M). No tampering was done during the custody of PW1. IO recorded the statement of PW1 regarding the same. Witness correctly identified the accused.
7. PW2 Sh. Om Prakash, Record Keeper, State Transport Authority, Seikh Sarai brought registration file of vehicle bearing no. DL3CAJ3949 in the court and deposed that as per the record, the said vehicle (make Fiat Palio, Z black in colour) is registered in the name of Saroj Devi and the certified copy of vehicle's particulars is Ex.PW2/A bearing the signature of Harjeet Panwar, Head Clerk which was signed in the presence of PW2.
8. PW3 ASI Mukesh Kumar deposed that on 10.11.2011, he along with SI Paramjeet, ASI Anand Prakash, HC Balbir, HC Randhawa, HC Suresh, HC Asgar Ali and Ct Umesh went to MB Road for vehicle checking where they placed barricade on road and started checking the vehicles. Thereafter, he deposed on the similar lines of PW1 ASI Asgar Ali till the point when accused was taken for medical examination and then he was put behind bars. Additionally, he deposed that ASI Anand Prakash apprehended the said vehicle with the help of HC Asgar Ali and HC Suresh and 50 plastic quarter bottles (Joshila Santra Masaledar Desi Shrab for sale in Haryana only) were found in 34 cartons and 48 glass quarter bottles (make Golden Boarder Whisky for sale in Haryana only) were found in 17 cartons. Witness correctly identified the accused.
9. Despite multiple summons, PW4 ASI Anand Prakash did not appear. During trial, it came to the knowledge of the court that PW4 is State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 5 of 15 suffering from blood cancer and medical reports were also filed regarding the same. On account of the non-appearance of PW4 ASI Anand Prakash due to illness, his deposition was not recorded.
10. PW5 ASI Ashok deposed that on 10.11.2011, while being on duty as Duty Officer from 8 am to 4 pm, at about 09:00 am, HC Mukesh produced a rukka on which he made endorsement vide Ex.PW5/B, which was sent by ASI Anand Prakash and the present FIR was registered which is Ex.PW5/A. After registration of FIR, the copy of FIR and original rukka was handed over to HC Mukesh to further hand over the same to ASI Anand Prakash for further investigation.
11. PW6 SI Suresh Chand deposed on the similar lines of PW. Additionally, he deposed that he along with staff were on patrolling in the area of PS Saket in a govt. vehicle make Swaraj Mazda at about 03:30 am vide DD no. 35A. The roznamcha dated 10.11.2011 having mention of DD no. 35A at page no. 31 is Ex.PW6/A. The front glass of the alleged car was damaged. ASI Anand Prakash requested 4-5 public persons to join the investigation but they did not agree and left the spot without disclosing their names and addresses. HC Yushvir from Excise Department also reached at the spot and he joined the investigation. After preparing site plan, ASI Anand Prakash mentioned the FIR number on the seizure memos Ex.PW1/A, Ex.PW1/B and Ex.PW4/C. Witness correctly identified the accused. Witness was duly cross examined.
12. PW7 SI Ravi Shankar Tyagi deposed that on 30.06.2015, the investigation of the present case was marked to him and MHC(R) handed over to him the case file. On 29.09.2015, the notice u/s 41.1 of State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 6 of 15 the Code (Ex.PW7/A) was served upon registered owner of Polo car namely Saroj Devi as the illicit liquor was recovered from the alleged car. PW7 interrogated the accused Saroj and prepared interrogation report (Ex.PW7/B). He also collected the ownership documents of the alleged car from authority which was found in the name of Saroj Devi. PW7 prepared supplementary chargesheet and filed in the court.
STATEMENT/DEFENCE OF THE ACCUSED PERSONS
13. In his examination recorded under Section 313 of the Code, the accused Munshi Ram denied the entire evidence put to him. He stated that he was not there in the aforesaid car and at that time, he was driving a three-wheeler auto at Lajpat Nagar and he was apprehended near Moolchand flyover. He further stated that passengers were there at that time. He stated that this is the only case against him. He also stated that he was not possessing the illicit liquor. He categorically stated that he is innocent and has been falsely implicated in the present case. The accused did not lead any evidence in his defence.
ARGUMENTS
14. Sh. Naresh Choudhary, learned Assistant Public Prosecutor for the State addressed pertinent arguments. He submitted that the accused as well as the case property have been correctly identified by the witnesses. He stated that link evidence is also available. He urged that the case has been proved beyond doubt against the accused and prayed for conviction of the accused.
15. On the other hand, Learned Counsel for the accused has submitted that the accused has been falsely implicated by the police and nothing was recovered from his possession. He submitted that the State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 7 of 15 absence of public witnesses, on the alleged recovery is fatal to the case of the prosecution. He prayed for acquittal of the accused.
ANALYSIS AND FINDINGS
16. The record has been thoroughly and carefully perused. The respective submissions of the learned Assistant Public Prosecutor for the State and Learned Counsel for the accused have been considered.
17. Section 33 of the Delhi Excise Act 2009 is reproduced below for ease of reference:
"Section 33 - Penalty for unlawful import, export, transport, manufacture, possession sale, etc. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any license, permit or pass, granted under this Act:
(a) manufacture, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purpose 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, collects, possesses or buys any intoxicant other than toddy or taari;
(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;State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 8 of 15
(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 which may extend to one lakh rupees."
18. With respect to the charge under Section 33 of the Delhi Excise Act, the case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or licence. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
19. Relying upon Section 52 of the Delhi Excise Act, learned Assistant Public Prosecutor for the State argued that where the accused is charged of commission of the offence punishable Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary. Section 52 of the Delhi Excise Act reads as under:
"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 State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 9 of 15 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."
20. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a prerequisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused that the accused can be called upon to account for the same.
21. The recovery witnesses PW1 HC Asgar Ali, PW3 HC Mukesh and PW6 HC Suresh Chand have deposed that 51 carton boxes containing liquor bottles were recovered from Fiat Palio car bearing no. DL 3CAJ 3949 which was being driver by accused Munshi Ram. The testimony of all these recovering witnesses is cogent and convincing which inspires confidence. Further, to the detriment of the accused, the examination in chief of PW1 HC Asgar Ali and PW3 HC Mukesh stands uncontroverted as despite grant of opportunity, the said PWs were not cross-examined by the accused.
22. As per PW1 HC Asgar Ali, PW3 HC Mukesh and PW6 HC Suresh Chand, efforts were made by the IO to join independent public witnesses, but none had agreed and they all left the spot without disclosing their names and addresses. In Jawahar vs. State [(Delhi) State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 10 of 15 2007 (4) R.C.R. (Criminal) 336, it was observed that it is hard to get these days to get association of public witnesses in criminal investigation and nobody from public is prepared to suffer any inconvenience for the sake of society. In Ram Karan vs. State of Rajasthan [1997 (2) FAC 131] it was held that no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worthy of reliance, conviction or an accused may safely be based on such testimony. It is the quality and not the quantity of the evidence which matters in our system.
23. The primary contention of the Ld. Counsel for the accused is that despite presence of public witnesses, none has been joined in the investigation and it is averred that conviction of the accused cannot be sustained solely on the basis of depositions of police witnesses. How- ever, there is no rule of law that police witnesses ought not to be relied upon. Police official / official witnesses do not suffer from any disabil- ity to give evidence and their official capacity by itself does not create any doubt about their credit worthiness. Mere fact that they are police officials does not by itself give rise to any doubt about their creditwor- thiness. [Re: Kala Singh vs. State of Haryana (SC) 1995 AIR 1948]. It is pertinent to note that in Pramod Kumar vs GNCT of Delhi [AIR 2013 SC 3344] has observed that the entire case cannot be thrown overboard because of non-examination of independent witness and noted the following:
"This Court, after referring to State of U.P. v. Anil Singh, State, Govt. of NCT of Delhi v. Sunil and another and Ramjee Rai and others v. State of Bihar, has laid down recently in Kashmiri Lal v. State of Haryana that there is no absolute command of law that the police officers cannot be cited as witnesses and their State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 11 of 15 testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinizing the evidence, the court finds the evidence of the police officer as unreliable and untrust- worthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence."
24. The prosecution witnesses have apprehended the accused red handed with the illicit liquor. They are the best witnesses to describe the possession and recovery. There is no reason why they would frame an innocent person in such a serious offence which they have alleged completely knowing its implications without any previous enmity with the accused. There is no suggestion in the cross examination of these witnesses or the examination of accused u/s 313 of the Code regarding any motive of false implication on behalf of complainant or any enmity with the complainant. Since the witnesses themselves have apprehended the accused, it would require very convincing submissions to discard the evidence of these witnesses when the story propounded by them seems to be most probable. The statement of the accused under Section 313 of the Code that he was driving a TSR at that time in Lajpat Nagar and the recovery has been planted by him cannot be read in evidence as the accused has not deposed the said fact in defence evidence on oath under Section 315 of the Code. Further, no evidence has been placed on record by the accused or State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 12 of 15 suggestions given by the accused w.r.t. any plea of alibi. The testimony of the witnesses does not appears to be embellished or embroidered in respect of the offence committed nor could be impeached in their cross examination. In the present case, therefore the occurrence of the offence is proved by the witnesses against the accused and there is no good reason to discard their testimony which is found to be consistent and reliable and also inspires confidence. The FIR was promptly registered and there was no opportunity to the complainant to embellish or falsely implicate the accused. Testimonies of all the witnesses are corroborated in material particulars with each other. The witnesses have been duly cross examined but still there is nothing in their testimony to impeach their credit. All of them have categorically deposed the place and the manner in which the liquor was recovered and therefore I am of the view that the testimonies of these witnesses inspires confidence and the probative force in their testimony is so strong so as to convict the accused.
25. In this manner, it has been clearly established that the accused was found in possession of illicit liquor amounting to 51 cartons of illicit liquor as described in the seizure memo. Basically, for proving the offence under Section 33, Delhi Excise Act, the possession has to be proved beyond permissible limits. That bottles seized contained illicit liquor has been proved by the result of Excise Laboratory (Ex. A2). Investigating officer has proved the investigation of this case. The word alcohol has been defined in Section 2 of Delhi Excise Act, 2009 which means ethyl alcohol of all strength and purity. The Excise Result shows the contraband in possession of accused was Ethyl Alcohol. The possession of illicit liquor by the accused has been duly proved as discussed above. The investigating officer has proved State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 13 of 15 sealing of the case property and no questions have been put to the IO to disprove the sanctity of case property in their possession. Case property was also proved in the court as Ex.P1, P2 and P3 (colly).
26. Clause 'f' of Section 33 of the Delhi Excise Act, 2009 is applicable if a person contravenes the provisions of this Act or any rule under this law. Delhi Excise Rules 2010 under Rule 20 prescribes the maximum limit of retail liquor an individual can possess. The maximum quantity of Indian liquor (whisky in the present case) for the purpose of Delhi Excise Act which can be possessed by individual can be 9 litres. In the present case, the 34 cartons of 50 quarter bottles of Joshila Santra (country made liquor) which was recovered from the accused amounts to possessing approximately 306 litres of liquor. Similarly, the 17 cartons of 48 quarter bottles of Golden Border Whisky recovered from the accused amounts to possessing approximately 146 litres of liquor. This is grossly in violation of the provisions of the Delhi Excise Act.
27. In a criminal trial the prosecution has to prove the guilt of the accused beyond reasonable doubts. However, the Delhi Excise Act, 2009 under which the accused is being prosecuted in the present case relaxes this law by providing in Section 52 that 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 for the possession of which he is unable to account satisfactorily. Keeping in view the convincing evidence placed on record by the prosecution witnesses on recovery of illicit liquor from the accused which has remained uncontroverted despite grant of opportunity to the accused, presumption as provided for under Section 52 of the Delhi Excise Act is raised against the State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 14 of 15 accused in the present case. Therefore, the onus shifted on the accused to satisfactorily account for the illicit liquor recovered from his possession. In this context, it is pertinent to note that no evidence has been led by the accused in lieu of discharge of his onus to produce / furnish satisfactory account for the possession of illicit liquor.
28. The possession of the accused has been proved in the present case as discussed above. The burden was shifted on the accused to account his possession which he has completely failed to do in this case.
29. On the basis of aforesaid discussions, accused Munshi Ram is convicted for the offence under Section 33 of Delhi Excise Act.
30. Accused be heard separately on the point of sentence.
Dictated and announced in open Court on 07.10.2024.
Digitally signed by T T PRIYADARSHINI
PRIYADARSHINI Date:
(T. Priyadarshini)
2024.10.08 Additional Chief Judicial Magistrate,
15:51:30 +0530
South District, Saket Courts, New Delhi
07.10.2024
State vs. Munshi Ram FIR No. 350/2011, PS: Saket Page 15 of 15