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Fir No. 37/2015, Ps : Hauz Qazi State vs Sachin Kumar on 26 June, 2019

FIR No. 37/2015,   PS : Hauz Qazi       State Vs Sachin Kumar



    IN THE COURT OF MM­08 (CENTRAL DISTRICT)
        TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :

State Vs. Sachin Kumar
FIR No. 37/2015
PS : Hauz Qazi
U/s 33 Delhi Excise Act.
Date of Institution        : 16.03.2015
Date of reserving of order : 26.06.2019
Date of Judgment           : Oral
CNR No. DLCT02­006576­2015

JUDGMENT

 1. Serial No. of the case             : 297142/2016
 2. Name of the Complainant            : HC Sunil
 3. Date of incident                   : 01.02.2015
 4. Name of accused person             :


          Sachin Kumar S/o Late. Rakesh Kumar,
          R/o H. No. 1594, Gali Boriyan Himmat
                       Garh, Delhi.


  5. Offence for which chargesheet
     has been filed              : S. 33 Delhi Excise Act.




Page 1 of 22                        MM­08/C/THC/Delhi/26/06/19
 FIR No. 37/2015,      PS : Hauz Qazi        State Vs Sachin Kumar



     6. Offence for which charge
        has been framed                    : S. 33 Delhi Excise Act.
     7. Plea of accused                    : Not guilty
     8. Final Order                        : Acquitted
     9. Date of Judgment                   : 26.06.2019

BRIEF REASONS FOR ORDER:

1. Mr. Sachin, the accused herein, has been chargesheeted for committing offence punishable under Section 33, the Delhi Excise Act.

2. The case of the prosecution is that on 01.02.2015, complainant HC Sunil was on patrolling duty alongwith Ct. Sarvan in the area of PS : Hauz Qazi. At about 11:15 p.m., an information was given by a secret informer that a person was carrying illicit liquor who was standing near Gali Boriyan, Himmath Garh Chowk. The police officials including secret informer prepared a raiding party and reached at the spot. At about 11:30 p.m., at the instance of secret informer, accused was apprehended. The accused was found in possession of a plastic sack bag containing illicit liquor. On the basis of Page 2 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar the complainant, present FIR was registered. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was charge­sheeted for the offence punishable under Section 33, the Delhi Excise Act.

3. After perusing the record, cognizance was taken by the Court and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 33, the Delhi Excise Act, was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.

4. The prosecution has examined as many as 03 witnesses to prove its case against the accused.

5. PW­1 ASI Sunil Kumar is the complainant. He has deposed that on 01.02.2015, he left the PP for patrolling in the area alongwith Ct. Sarvan vide DD No.17 PP : Himmat Garh. At about 11 :15 p.m., they were present at Gali Himmath Garh. At that time, one secret Page 3 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar informer had met him and told that a person was standing near Gali Boriyan, Himmath Garh Chowk and that he was carrying large quantity of illicit liquor. He shared the information with 4­5 passerby and asked them to join the proceedings. However, they left the spot by telling their difficulties. He prepared the raiding party including himself, Ct. Sarwan and the secret informer and reached at the spot at about 11 :30 p.m. At the instance of secret informer, he apprehended a person who was carrying a plastic sack on his right shoulder. During inquiry he disclosed his name as Sachin Kumar. The plastic sack was removed on the ground. It was opened and checked. On checking, 47 quarter bottles of GB Golden Border Whisky, 180 ML, MRP 35 for sale in Delhi, 65 quarter bottles of Hawaldar Whisky, 180 ML, MRP 35/­ for sale in Delhi were recovered from the sack. He had separated one quarter bottle of each brand for sample. They were given Sr. No.1 & 2. Their mouths were covered with white clothes and they were sealed with the seal of SK. Remaining quarter bottles were again kept in the same plastic katta. The mouth of the plastic sack was closed with Page 4 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar white clothes and it was sealed with the seal of SK. He filled the form M­29. The seal was handed over to Ct. Sarwan after use. Thereafter, he seized all the case property and the form M­29 vide seizure memo Ex. PW1/A. He prepared a tehrir which is Ex. PW1/B. It was handed over to Ct. Sarwan with direction to get the FIR registered at the PS. He left the spot. After registration of FIR, investigation was marked to ASI Babu Ram who reached at the spot with Ct. Sarwan. He handed over the custody of the accused and the case property etc alongwith seizure memo to ASI Babu Ram. ASI Babu Ram prepared the site plan at his instance, which is Ex. PW1/C. IO recorded his statement and he was discharged.

6. PW­02 ASI Babu Ram is the IO of the case. He has deposed that on 02.02.2015, after registration of present case FIR, the same was marked to him for investigation. He left the PP for the spot i.e., street boriyan near Himmat Garh Chowk alongwith Ct. Sarwan. At the spot, HC Sunil Kumar was present alongwith accused namely Sachin Kumar was in his custody as liquor was recovered from his possession as the present accused was Page 5 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar carrying without having any license or permit. Initially, HC Sunil Kumar apprised him facts and circumstances, under which the present accused was apprehended and in continuation of proceedings, the custody of present accused was handed over to him. At the same point of time, HC Sunil Kumar handed over him seizure memo of recovery liquor with form M­29 and also handed over him the sealed sack with sealed samples. He prepared the site plan at the instance of HC Sunil Kumar which is Ex. PW­ 1/C. After recording the statement of HC Sunil Kumar under Section 161 Cr.P.C., he was made free from further proceedings and thereafter, the present accused was interrogated and then he was arrested and personally searched the vide memos Ex. PW­2/A & Ex.PW­2/B. After completion of aforesaid proceedings, the present accused alongwith the case property was taken at PS where the case property was deposited with MHC(M) and the present accused was put behind the bars after getting his medical examination. The statement of Ct. Sarwan was recorded by him under Section 161 Cr.P.C. On 02.02.2015, the sealed samples were sent to excise lab to analysis. The Page 6 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar road certificate of the same is Ex. PW­2/C. After receipt of analysis report from excise lab, the same was placed on record which is Ex. A­3. Thereafter, he filed the chargesheet against the present accused.

7. PW­3 HC Kashmere Singh is the MHC (M). He has deposed that on 02.02.2015, ASI Babu Ram deposited two sealed samples alongwith one sack which was also sealed with the seal of SK. At the same time, he also deposited the copy of form M­29. He made the entry in register No. 19 at serial No. 775 as per seizure memo. He has produced register no. 19 qua entry No. 775 which is Ex.PW­3/A in the Court. On the same day, vide RC No. 09/21/15 the case property was sent to excise lab for analysis and the result of the same was received on 12.02.2015. The entry in this regard was made against Sr. No. 775. He has also produced the register No. 21 qua RC number as above­mentioned.

8. The witnesses were cross examined. The accused admitted the registration of FIR, which is Ex.A­1, certificate under Section 65 B of Indian Evidence Act, which is Ex.A­2 and the report of excise control laboratory Page 7 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar which are Ex.A­3.

9. The prosecution evidence was closed. Accused was examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied the incriminating evidence. He would state that he was falsely implicated in the present case.

10. The accused did not lead defence evidence. Therefore, matter was fixed for final arguments.

11. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identity of the accused has been established beyond reasonable doubts. All the ingredients of the offence have been proved by the prosecution. Hence the guilt of the accused has been proved. Therefore, it is prayed, the accused may be convicted.

12. Ld. Counsel for accused, on the other hand, would argue that nothing was recovered from the possession of accused at the time of his arrest and he has been falsely implicated in the present case. Ld. Counsel for accused would further contend that police had planted the said illicit liquor upon the accused with intention to send him behind bars and to settle some personal score. All Page 8 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar prosecution witnesses are fellow police officials and they all are interested witnesses. No independent public person has been examined to prove the factum of recovery of illicit liquor in question from accused despite spot in question being a thickly populated commercial and residential area. There are various contradictions in the testimonies of the prosecution witnesses. Benefit of doubt may be given to the accused and he may be acquitted.

13. I have heard the submissions and carefully perused the material available on record.

14. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court Page 9 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar

15. The accused herein has been charged for an offence punishable under section 33, the Delhi Excise Act. The Section reads as under:

"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 licence, permit or pass, granted under this Act­

(a) manufactures, imports, exports, transports or removes any intoxicant;

(b) constructs or work; any manufactory or warehouse;

(c) bottles any liquor or 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 today or tan;

(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 Page 10 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar be less than fifty thousand rupees but which may extend to one lakh rupees."

16. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or license and he was apprehended on the spot.

17. In order to bring home the charge against the accused, the prosecution is required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.

18. Ld. APP for the state has relied upon Section 52 of the Delhi Excise Act. It has been 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.

19. I have considered the submission. However, I am of the opinion that this is not the correct interpretation Page 11 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar of the law. 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 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 show that it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused before the presumption under the aforesaid provision is being raised against the accused. It is only after the prosecution has proved the possession of the alleged Page 12 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar articles by the accused, that the accused can be called upon to account for the same. Now it has to be seen whether the prosecution has established beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor.

21. In the present case, the case of the prosecution is based on the fact of alleged recovery of illicit liquor. It has been alleged that at the relevant date, time and place, the accused was found in possession of illicit liquor. The recovery was allegedly made by the police officials on the basis of secret information. However, as the record would reveal, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from a public place i.e., Gali Boriyan, Himmat Garh, Delhi. PW­1 ASI Sunil Kumar has stated in his examination that he had asked 4­5 public persons to join the proceedings after he had received the secret information. Thus, the place of recovery and apprehension of the accused is clearly located in an area where public persons were readily available. It is not the case of the Page 13 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar prosecution that no public person was present at or near the spot of arrest and recovery. There is nothing on record to show that PW­1 had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that non­joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case.

22. Non­availability of a public witness is one thing and not joining public person as a witness despite their availability is altogether different thing. In case a public person is available, it is duty of the police official to make sincere efforts to persuade such person to join the legal proceedings to become a witness. However, in the present case no such efforts are shown to be made by the police officials. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on Page 14 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar 07.11.1990, 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.''

23. In the present case, non­joining of any public person as a witness creates doubt on the case of the prosecution.

24. This Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non­joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other Page 15 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.

25. As per the testimony of the prosecution witness PW­1, the samples of liquor and other case property were sealed by him with the seal of SK. He has stated that seal was handed over to Ct. Sarvan after use. However, there is no handing over memo of the seal to show that seal was so handed over to some independent witness. Thus, the possibility that the case property might have been tampered with cannot be ruled out. It creates doubts on the case of the prosecution in relation to alleged recovery and sealing of case property by the complainant.

26. Further, PW­1 ASI Sunil Kumar has deposed that he had seized the liquor, the sample bottles and the excise form vide memo Ex. PW­1/A. Thereafter, he prepared the rukka Ex. PW­1/B. Ct. Sarvan had thereafter taken the rukka to the PS for registration of FIR. It is, therefore, clear that the seizure memo of the liquor and samples etc., were prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the Page 16 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar preparation of seizure memo Ex. PW­1/A. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW­1/A bears the FIR number and case details in the same ink and the same handwriting in which the said documents were prepared. The same indicates that FIR number was mentioned on the said document while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:

"... 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 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 Page 17 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar comes to that the number of F.I.R. 36 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."

27. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:

"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub­Inspector Narender Kumar Tyagi (PW­7), 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 Page 18 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar documents is in the same ink and 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."

28. In the present case also, no explanation is available on record as to how the FIR number and case details had appeared on the seizure memo Ex. PW­1/A. The same leads to only one conclusion that either the said document was prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases a reasonable doubt has been raised on the case of the prosecution. The accused is therefore entitled to the benefit of reasonable doubts.

29. The present case rests on the alleged recovery Page 19 of 22 MM­08/C/THC/Delhi/26/06/19 FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar of case property from the possession of the accused on the basis of secret information. PW­1 has stated in his examination that he was on patrolling in the area when he had received the secret information. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:

"22.49 Matters to be entered in Register No. II "­ The following matters shall, amongst others, be entered "(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. "Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."

FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar

30. In the present case, as the record would reveal, since public persons were not joined in the investigation, the departure entry of the aforesaid police officials, who were allegedly on patrolling duty in the area at the relevant time and had apprehended the accused with case property, could have been a vital piece of evidence. However, no DD entry record of the patrolling of the complainant in the area has been brought on record. Hence, the fact of the presence of the police official at the spot has come under the clouds of doubt.

31. In the light of the discussion hereinabove, I am of the opinion that the facts that no independent witness was cited or examined, possibility of misuse of seal has not been ruled out, the appearance of FIR number and case particulars on the seizure memo has not been explained, and no DD entry has been proved on record to establish the patrolling by the complainant in the area on the relevant date, time and place, are able to raise clouds of reasonable suspicion over the prosecution story. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.

FIR No. 37/2015, PS : Hauz Qazi State Vs Sachin Kumar

32. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused. The accused is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act.

33. Case property be confiscated to State as per rules.

34. The accused has already furnished bond under Section 437A, with one surety along with photographs and Digitally copies of address proof. signed by DINESH DINESH KUMAR KUMAR Date:

2019.06.26 16:43:52 +0530 Pronounced in the open Court on (Dinesh Kumar) this 26th day of June 2019. MM­08 (Central) Tis Hazari Courts, Delhi.