Delhi District Court
State vs Sandeep Kumar @ Chintu on 9 December, 2024
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
SANDEEP KUMAR @ CHINTU
CASE No. 6467/2019
FIR No. 66/2019
P.S- Khyala
U/S- 33/38 Delhi Excise Act,
2009
1. Date of commission of offence : 06.03.2019
2. Name of the Complainant : ASI Sunil Kumar
3. Name of the accused,
and his parentage and residence : Sandeep Kumar @ Chintu S/o
Sh. Amar Singh R/o H.No.
B1/518-19, 12.5 Sq. Yards,
Raghubir Nagar, New Delhi
4. Date when judgment : 23.10.2024
was reserved
5. Date when Judgment : 09.12.2024
was pronounced
6. Offence Complained of : Section 33/38 of Delhi
or proved Excise Act 2009
7. Plea of accused : Pleaded not guilty
8. Final Judgment : Acquitted
FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 1
1. BRIEF FACTUAL POSITION:-
1.1 The brief facts of the case of the prosecution are that on 06.03.2019, at
about 10.15 AM at B-3/518-19, 12.5 Sq. Yards, Raghubir Nagar, Khyala, Delhi within the jurisdiction of PS - Khyala, accused Sandeep Kumar @ chintu was found in possession of two plastic kattas, out of which first plastic katta was found containing 98 quarter bottles of Crazy Romeo Whisky for sale in Haryana only (180 ml) and second katta was found containing 87 quarter bottles of Crazy Romeo Whisky for sale in Haryana only (180 ml) without any license, permit or pass and in contravention of the Delhi Excise Act, 2009. 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 27.08.2019 indicting the accused for commission of the offence U/s 33/38 of Delhi Excise Act, 2009. Ld. Predecessor took cognizance and issued summons to the accused on 27.08.2019. Copy of the chargesheet in compliance with Section 207 CrPC was supplied on 16.10.2019.
1.3. Charge for the offence U/s 33/38 of Delhi Excise Act, 2009 was framed against the accused on 02.04.2022 to which he pleaded not guilty and claimed trial. On 15.12.2023, proceedings u/s 294 CrPC were conducted wherein the accused admitted copy of FIR No. 66/19 dated 06.03.2019 with DD No.30 A dated 06.03.2019, DD No. 10 PP dated 06.03.2019.
2. MATERIAL EVIDENCE IN BRIEF:
FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 2 2.1 The prosecution, in support of its case, has examined 04 witnesses in total, the details whereof 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. examinati-on
PW-1 HC Krishan (i) Seizure 23.07.2022 15.12.2023
memo of
liqour -
Ex.PW1/A
(ii) Seizure of
seal - Ex.
PW1/B
(iii)
Disclosure
statement of
accused -
Ex.PW1/C
(iv) Arrest
memo -
Ex.PW1/D
(v) Personal
search memo
- Ex.PW1/E
(vi) Sample
quarter bottle
alongwith
photographs
of case
property -
Ex.P1
(viii)
FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 3
Destruction
order - Ex.P2
(colly)
PW-2 ASI Sunil (i) Seizure 29.05.2023 29.05.2023
Kumar memo of
liqour -
Ex.PW2/A
(ii) Form
M-29 -
Ex.PW2/B
(iii) Tehrir/
rukka - Ex.
PW2/C
(iv) Seal
handing over
memo -
Ex.PW2/D
(v) Site plan -
Ex.PW2/E
PW-3 ASI Gajraj NIL 31.07.2024 31.07.2024
PW-4 HC Manish NIL 31.07.2024 31.07.2024
2.2 PW-1 was HC Krishan who deposed that on 06.03.2019, he was posted
at PS Khyala as Constable. He was on patrolling duty alongwith Ct. Manish and ASI Sunil. When they reached at B-3, 12.5 Gaj Raghubir Naga, one secret informer told ASI Sunil regarding one person carrying illicit liquor. Upon reaching B-3 they saw accused Sandeep, having illicit liquor with him. After FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 4 seeing the police officials, accused Sandeep tried to flee away but they apprehended him. ASI Sunil checked the white katta and it was containing 185 quarter bottles of illicit liquor bearing label of Crazy Romeo Whisky. The illicit liquor was carried in two white kattas, one katta contained 98 quarter bottles and the other katta was carrying 86 quarter bottles. One sample each was taken from both the kattas. The samples were sealed with the seal of SK. ASI Sunil prepared the rukka and handed over the rukka and the seal to Ct. Manish for registration of FIR. Ct. Manish returned to the spot after registration of FIR alongwith original rukka and copy of FIR. IO then seized the illicit liquor in his presence.
IO prepared the seizure of the seal in his presence and recorded the disclosure statement of accused. Accused was arrested in his presence, personal search of the accused was also conducted and then IO recorded statement of PW-1 u/s 161 CrPC. The witness identified the samples produced in the court.
2.3 PW- 2 was ASI Sunil Kumar who stated that on 06.03.2019 he was posted at PS Khyala as ASI. On that day, he was on patrolling duty alongwith Ct. Manish and Ct. Kishan. At about 10.15 am, when they reached B-3, 12.5 sq. Yards, Raghubir Nagar, Delhi, one secret informer told him that one Sansi is selling illicit liquor in front of H. No. B-3/518-19 and if raided, he can be apprehended. PW-2 informed this to the SHO concerned who directed him to take necessary information. Thereafter, PW-2 formed the raiding party consisting of himself, Ct. Kishan, Ct. Manish and the secret informer. Thereafter, the secret informer indicated towards the accused and left the spot. Then PW-2 alongwith the team proceeded towards the accused but after seeing them, the accused tried to flee away by going inside the house but he was apprehended. PW-2 then checked that he had two white plastic sacks. The accused could not give any satisfactory reason for the possession of the same. PW-2 made efforts to asks the FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 5 passersby to join the recovery proceedings but none of them agreed and left the place without disclosing their names and addresses. Thereafter, he checked both the plastic sacks and found it containing illicit liquor. In the first plastic sack there were 98 glass quarter bottles of Crazy Romeo Whiskey for sale in Arunachal Pradesh only (180 ml each) the other plastic sack contained 87 glass quarter bottles of Crazy Romeo Whiskey for sale in Arunachal Pardesh only (180 ml each). One quarter bottle from each sack was taken out as sample. The bottle neck of the sample bottles were covered with a piece of white cloth and sealed with the seal of SK and given serial no.1A and 2A. Remaining quarter bottles were kept back in their respective sacks. The mouth of the sacks were covered with a piece of white cloth and sealed with the seal of SK. Thereafter, the sacks were given serial no.1 and 2. Thereafter, PW-2 prepared the seizure memo. He then filled the form M-29, and handed over the seal to Ct. Kishan vide handing over memo. Thereafter, PW-2 interrogated the accused and prepared the tehrir which he handed over to Ct. Manish for registration of FIR. Ct. Manish got the FIR registered and came back to the spot with HC Gajraj to whom the further investigation was marked. IO HC Gajraj made the site plan, took over the custody of the accused, case property and the documents prepared. IO enquired from PW-2 and recorded his statement. PW-2 also identified the sample produced before him in court. However, he was the first witness to identify the sample and seal on the same was found broken. Only the letter R was visible on the seal.
2.4 PW-3 was ASI Gajraj who stated that on 06/03/2019, he was posted at PP Raghubir Nagar, PS Khyala as Head Constable. On that day, the investigation of the present case was handed over to him after registration of FIR. Ct. Manish FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 6 handed over the copy of FIR and original tehrir to him in the PP after getting it registered at the PS. Thereafter, PW-3 along with PW-2 went to the spot to the incident at B-3/518/519, 12.5 Yards, Raghubir Nagar where he met ASI Sunil with Ct. Krishan who produced accused namely Sandeep@Chintu to PW-3 alongwith two plastic kattas seized from him, with seizure memo, sample and form M-29. Thereafter, PW-3 prepared the site plan, recorded the disclosure statement of accused as narrated by him, arrested the accused and personally searched him. Then, PW-3 took the accused for medical examination at GGS Hospital and came to the PS and brought the case property along with him and deposited the same in the malkhana. On the same day, he produced the accused in the court and sent him to JC as per court orders. He obtained the Excise result from Vikas Bhawan and placed it on record. After completion of investigation, he filed the chargesheet in the present court. He stated that he had received the case property seized and sealed by the first IO.
2.5 PW-4 was HC Manish who deposed that on 06/03/2019, he was posted at PP Raghubir Nagar PS Khyala as Constable. On that day, he alongwith Ct. Krishan and ASI Sunil were on patrolling duty in the beat area. At around 10.15 am they reached near B-3, 12.5 yards Raghubir Nagar when a secret informer informed ASI Sunil that a man/Saansi is selling illicit liquor at B-3/518-519 Raghubir Nagar and if raided can be apprehended. Then, ASI Sunil informed the SHO, who directed him to take necessary action. Then, ASI Sunil formed a raiding party consisting of Ct. Krishan, HC Manish and the secret informer. They went to the above mentioned address and saw the above mentioned person. Upon seeing the accused, secret informer pointed him out saying he was the same person who was carrying illicit liquor. Thereafter, FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 7 informer left the spot. Upon seeing the police team, the accused tried to flee away but was apprehended by police officials along with two white plastic sacks. Then, ASI Sunil asked 3-4 public persons to join the investigation but they refused the same stating that they do not want to get involved in court/police matters and left the spot without disclosing their name and address. Due to paucity of time, no notice was served by IO to them. Thereafter, IO checked the said kattas and found one containing 98 quarter bottles and the other containing 87 quarter bottles of illicit liquor bearing mark of Crazy Romeo whiskey 180 ml for sale in Arunchal Pradesh only. Thereafter, ASI Sunil asked the name and other particulars of the said person which he disclosed to be Sandeep@Chintu. Out of the seized cartons, one quarter bottle each was taken out as sample and moored with white cloth from its bottleneck and sealed with the seal of SK. The rest of the quarter bottles were put in the same plastic cartons, moored with the white cloth and duly sealed with the seal of SK. After sealing, the seal was handed over to Ct Krishan. Form M-29 was prepared by IO and the abovesaid liquor as well as sample were seized. Thereafter, IO prepared the tehrir and the same was handed over to PW-4 for registration of FIR. He went to the PS and got the FIR registered. After registration of FIR, he returned back at the spot with 2nd IO/HC Gajraj. ASI Sunil had handed over the case property, accused and form M-29 to him. Second IO prepared the site plan and then interrogated the accused, arrested him, personally searched him and recorded the disclosure statement of accused. Then accused was taken to GGS Hospital by PW-4 (IO had stated that he had taken the accused to GGS Hospital without mentioning PW-4), Ct. Krishan and Second IO/HC Gajraj for medical examination. Thereafter, they all took the case property to the PS and deposited it in the malkhana. Then, PW-4 along with HC Gajraj produced the accused in the court FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 8 and thereafter he was sent to the JC as per court order. IO had also recorded his statement u/s 161 CrPC.
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 person in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C. and statement of accused was recorded separately on 30.09.2024 wherein he denied the allegations and tendered explanation that he had been falsely implicated and nothing was recovered from his possession. He opted not to lead any DE in his defence.
4. ARGUMENTS:
4.1 Ld. APP for the State has argued that the accused person was apprehended with the case property which was recovered from him and on a combined reading of prosecution witnesses' testimony, offence under section 33/38 of Delhi Excise Act, 2009 stand proved beyond reasonable doubt, against the accused person.
4.2 On the other hand, Ld. Counsel for the accused person has argued that there is no legally admissible evidence against the accused person and that the accused person has been falsely implicated in the present case. He submitted that no videography, photography, examination of any public witness was done hence the recovery was doubtful. He argued thus that prosecution has failed to prove the case against the accused person beyond reasonable doubt and hence, the accused person is entitled to be acquitted.
5. APPRECIATION OF EVIDENCE AND FINDINGS ON MERITS:
5.1 In the present case, the accused person has been charged with the offence U/s 33/38 Delhi Excise Act, for being found in possession of illicit liquor FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 9 without any licence, permit or pass, and in contravention of the notification issued by the Delhi Government.
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 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.
FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 10 5.4. From a combined reading of the testimonies of the prosecution witnesses examined and the material placed on record in the final report, several doubts have been created over the factum of alleged recovery from the accused. To begin with, it is abundantly clear that the investigating authority has not made any effort to have any public witness join the proceedings at the time of recovery, arrest or completing other formalities. It is not the case of the prosecution that no public witnesses were available and it is stated by all recovery witnesses that public persons were asked to join the investigation but no formal notice was served on them. All the witnesses stated that apprehension of the accused had happened at a residential area but no notice was served on the public persons who must have been present and their names and addresses were not noted down.
5.5 When a statutory provision mandates that an independent witness has to be joined in the investigation, the IO is duty bound to comply with the same. Merely stating that the public persons 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 provisions of Cr.P.C and IPC as noted below.
Section 100(4) Cr.P.C states that, "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"....
Section 37 Cr.P.C. states that, "every person is bound to FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 11 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".
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 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". Section 187 IPC states that, " whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 12 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".
5.6 The importance of getting independent witnesses to join the investigation has been laid out by the superior courts in a catena of judgments. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, the Hon'ble High Court of Punjab and Haryana observed that such explanations that public persons refused to join the proceedings are unreliable. Moreover, the Hon'ble Supreme Court of India also noted in the case of Pradeep Narayana Vs. State of Maharashtra AIR 1995 SE 930 that failure of the police to get persons from the locality to join the investigation during search creates doubt about its fairness, benefit of which has to be given to the accused. In the present matter, hence, the chances of false implication and planted recovery, as alleged by the defence, cannot be ruled out.
5.7 There are other discrepancies casting a doubt over the prosecution chain of events. For instance, all recovery witnesses had stated that they were on patrolling together when the information was received and when they reached the FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 13 spot, however in his cross examination PW-2 stated that he was patrolling on foot whereas PW-4 stated in his cross examination that they had reached on two private bikes. PW-4 also did not mention the seizure memo among the documents handed over by PW-2 to the IO at the time of handing over of the investigation. There is also a contradiction in the statements of the IO and PW-4 as the latter claims he had taken the accused to the hospital whereas the IO claims he did, without any mention of PW-4. This inherent contradiction was not resolved by the prosecution. Pw-4 also stated that he had signed the site plan, which was made at his instance, but no such signature of HC Manish was found on the site plan. He also claimed that the spot was at a distance of 5-6 km from the PS but as per time stated, he evidently went to and fro, along with the time taken for registration of FIR, within 10 minutes. These discrepancies were also not resolved.
5.8 The witnesses such as PW-1 also admitted that the contents of the seizure memo were prepared in one go. However, upon perusal of documents, the seizure memo in particular shows that the FIR number is mentioned in the same handwriting as the rest of the contents of the document. Admittedly no addition or alteration was made to the document and it was ostensibly prepared before the registration of the FIR, leading to the presumption that either the witnesses have deposed falsely and alterations were made or the documents were prepared, as suggested by the defence, at the police station after planting the recovery.
5.9 The defence has also pointed out the discrepancies regarding sanctity of seal on the case property. In the testimony of PW-2 when the case property was produced, only the letter R could be seen on the seal whereas recovery witnesses in their examination in chief stated it was sealed with the seal of SK. The prosecution did not FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 14 bring forth any explanation in this regard. Moreover, as per PW-1 no handing over memo for the seal was prepared. The seal was evidently handed over to PW-4 without any memo, so there is no record of its custody. Tampering with the seal cannot be ruled out in such a case as the same remained with officials of the same police station as the IO himself. No independent witness was examined with respect to the same and no photography or videography was done during recovery, sealing or seizure proceedings. In a case where only police witnesses are available, it becomes incumbent upon such officials to comply with all procedural requirements and failure of the same shall work in the favour of the accused.
5.10 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. Neither was the batch number of the remaining bottles noted to correlate them with the sample bottle. Now, since the State has only found 1 bottle containing 180 ml alcohol, allegedly recovered from the accused, an offence under Section 33 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 to the sample seems to have been noted to indicate similarity of contents.
5.11 The cardinal principle of law that the prosecution has to prove its case beyond all reasonable doubts, remains the dictating factor. The standard of proof in criminal cases is not preponderance of probabilities but proof beyond all reasonable doubt. It is FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 15 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 and the possibility of planted or tampered recovery cannot be ruled out. Under the circumstances, it would not be legally viable to convict the accused merely on the basis of testimony of the police officials. Hence, accused Sandeep Kumar@ Chintu S/o Sh.Amar Singh R/o H.No. B1/518-19, 12.5 Sq. Yards, Raghubir Nagar, New Delhi is acquitted of the offences punishable u/s 33/38 of Delhi Excise Act, 2009.
File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN SUKRITI Digitally signed by
SUKRITI SINGH
COURT ON 09.12.2024 SINGH Date: 2024.12.13
14:33:13 +0530
(SUKRITI SINGH)
JUDICIAL MAGISTRATE
FIRST CLASS-04/WEST/
TIS HAZARI COURTS/DELHI
Containing 16 pages, all signed by the presiding officer SUKRITI Digitally signed by SUKRITI SINGH (SUKRITI Date:
SINGH SINGH)2024.12.13
14:33:20 +0530
JUDICIAL MAGISTRATE
FIRST CLASS-04/WEST/
TIS HAZARI COURTS/DELHI
FIR No. 66/2019 State Vs Sandeep Kumar @ chintu U/s 33/38 Delhi Excise Act 16