Delhi District Court
State vs . Aklu & Robin @ Bengali on 1 April, 2019
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MAGISTRATE-01 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.141/17
PS Lahori Gate
State Vs. Aklu & Robin @ Bengali
U/s 33 Delhi Excise Act
CIS No.12812/17
CNR No. DLCT-02-26830/17
JUDGMENT
(a) Sr. No. of the Case 12812/17
(b) Date of offence 23.07.2017
(c) Complainant HC Bhimlesh Kumar
(d) Accused 1. Aklu S/o. Pitamber Bind, R/o. Jhuggi Pul
Mithai, Pili Kothi, Delhi-06. Permanent
Address:- Raja Rani ka Talab, PS Haveli
Kharapur, District Muger, Bihar.
2. Robin @ Bengali S/o. Raju R/o.
Vegabond Patri Pili Kothi, Lahori Gate,
Delhi.
(e) Offence 33 Delhi Excise Act.
(f) Plea of accused Pleaded Not guilty
(g) Date of Institution 10.11.2017
(h) Final Order Acquitted
(i) Date when judgment was 01.04.2019
reserved
(j) Date of judgment 01.04.2019
1. The present FIR was registered at PS Lahori Gate against the accused persons Aklu FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.1 of 18 and Robin @ Bengali for the offences under Section 33 Delhi Excise Act.
2. The allegations are that on 23.07.2017, at about 02:25 pm, Near Bhule Shah Dargah, behind Empty Railway Land, Lahori Gate, Delhi, accused persons Aklu and Robin @ Bengali were carrying illicit liquor and were found in possession of 6 bags each containing 150 quarter bottles of illicit liquor without any license, permit or pass and in contravention of the notification issued by Delhi Government. According to prosecution, the accused persons, thereby committed offence punishable under Section 33 Delhi Excise Act, 2009.
3. After completion of the investigation, charge-sheet was filed and the accused persons were supplied with copies of challan alongwith annexures in compliance of Section 207 of the Code of Criminal Procedure, 1973. Charge for the offence u/s 33 Delhi Excise Act was framed against the accused persons Aklu and Robin @ Bengali vide order dated 30.08.2018, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, prosecution has examined 6 witnesses.
5. PW-1 ASI Jagan Prasad, who deposed that on 23.07.2017, he received rukka through Ct. Mahender sent by HC Bimesh on the basis of which registered FIR Ex. PW-1/A, that he made endorsement on rukka is Ex. PW-1/B and Certificate under Section 65-B of Indian Evidence Act is Ex. PW-1/C.
6. PW-2 is HC Bhimesh, who deposed that on 23.07.2017, he was posted at PS Lahori Gate as HC, that he was on patrolling duty along-with HC Ajit, Ct. Mahender and Ct. Dinesh vide DD No. 17-B Ex. PW-2/A, that at about 02:15 pm, while patrolling, when they reached Police Booth, Pull Mithai, one secret informer met with them and informed that two persons had arrived with heavy quantity of illicit liquor at the empty FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.2 of 18 land of Railway behind Dargah Mooshey Shah/Bhule Shah and would supply the same in the jhuggies, that he disclosed the information to his accompanying staff, that he requested 3-4 public persons to join the present investigation, but none of them agreed and they all left the spot without disclosing their names and addresses, that he along- with HC Ajit, Ct. Mahender and Ct. Dinesh and secret informer constituted a raiding party and reached near Railway Line, Dargah Mooshey Shah/Bhule Shah, that they saw one person was placing one bulky plastic sack bag on the head of the other, that the secret informer pointed towards those persons that they are the persons as informed by him, that secret informer was discharged from the spot, that on the identification of the secret informer, Ct. Dinesh apprehended the person on whose head plastic sack bag was place and Ct. Mahender apprehended the other person, that the name of person apprehended by Ct. Dinesh was revealed as Aklu after interrogation and the name other person apprehended by Ct. Mahender was revealed as Robin @ Bengali, that there were total 6 such plastic sack bags, that he opened the bags and checked them, that on checking the same, they found each of the plastic sack bag containing 150 quarter bottles of 180 ml each of illicit liquor bearing the label of "Asli Santra Masaledar Desi Sharab for sale in Haryana only", that he separated two bottles as sample from each of the six bags and the remaining 148 bottles were put in the same bags, that the bags were given as S.No. 1 o 6 and the samples were given as S.No.S1 and S12, that the cap of each of the samples were tide with white cloth and sealed separately with the seal of 'VK' and also sealed each of the bags separately with the seal of 'VK', that case property was seized vide seizure memo Ex.PW-2/A, that he filled the form no. M-29 Ex. PW-2/B, that the seal after use was handed over to Ct. Dinesh, that he prepared rukka Ex.PW-2/C and handed over the same to Ct. Mahender with direction to take the same to PS for getting the FIR registered, that he took the same to PS and after some time, he returned back to the spot along-with original rukka and original FIR along-with ASI Veer Pal for further investigation, that he handed over both the accused persons, the seized plastic sack bags containing illicit liquor, form M-29, seizure memo and samples to the IO, that IO prepared the site plan at his instance Ex.PW-2/D, that IO recorded his statement and he was discharged from FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.3 of 18 the spot. Thereafter, MHC(M) appeared and apprised the Court that the case property has been confiscated vide order dated 18.05.2018 Ex. PW-2/E of Asst. Commissioner Excise and produced the report dated 09.06.2018 Ex. PW-2/F vide which the case property of the present case was destroyed duly signed by the then MHC(M), the certificate is Ex. PW-2/G, DD of destruction is Ex. PW-2/H and the photographs of the same are Ex. PW-2/I (colly), that MHC(M) has produced one sample bottle taken out from the case property at the time of destruction having FIR no. mentioned on white cloth, that bottle was duly filled with liquor and bearing label of "Asli Santra Masaledar Desi Sharab for sale in Haryana only", same is shown to the witness, witness identified the same brands as recovered from the possession of the accused, that bottle is Ex.P-
1.
7. In the cross examination, PW-2 deposed that no DD was made except DD No. 17-B regarding arrival on the spot. He admitted that no stamp is marked on the DD No. 17-B and also not attested or verified by the concerned ACP. He denied that DD No. 17-B is false and fabricated. He admitted that spot is crowded place and people were coming and going from there, that no notice was given to the public persons regarding refusal to join the investigation on that day, that when he left for the spot to join the investigation no specific DD was made, that they reached at the spot about 2:00 pm and rukka was prepared at about 3:40 pm and Ct. Mahender return back to the spot after registration of FIR at about 4:30 pm, that he does not remember from what mode the case property was taken to the police station from the spot, that he does not remember whether his arrival DD was made or not. He denied that he has not joined the investigation, that no rukka was prepared regarding this FIR, that the nothing recovered from the accused persons and all the proceedings were done while sitting in the PS and the case property is planted upon the accused persons, that he is deposing falsely.
8. PW-3 is W/Ct. Jyoti, who deposed that on 23.07.2017, she was on duty at PS Lahori Gate as DD writer along with the D O, that at about 8:30 am, entry regarding departure FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.4 of 18 of HC Ajit, HC Bhimesh, Ct. Mahender and Ct. Dinesh for patrolling is made in DD register no. B at S. No. 17 maintained at the PS on 23.07.2017, that he has brought the original DD register no. 12-B for the period of 14.07.2007 to 31.07.2007 containing the original DD No. 17-B dated 23.07.2017, that the attested true copy of the same is Ex. PW-2/A.
9. In the cross examination, PW-3 admitted that no stamp of PS Lahori Gate is mentioned upon the DD number 17-D dated 23.07.2017 PS Lahori Gate. She denied that DD is prepared by him, that she is deposing falsely.
10. PW-4 is Ct. Dinesh, who deposed that on 23.07.2017, he was posted at PS Lahori Gate as constable, on that day, his duty hours were from 9:00 am to 10:00 pm and was on patrolling duty along-with HC Ajit, Ct. Mahender and HC Bhimesh vide DD No. 17- B, that copy of the same is Ex. PW-2/A, that on that day, at about 02:15 pm, while patrolling, when they reached Police Booth, Pull Mithai, one secret informer met with them and informed that two persons had arrived with heavy quantity of illicit liquor at the empty land of Railway behind Dargah Mooshey Shah/Bhule Shah and would supply the same in the jhuggies, that HC Bhimesh disclosed the information to them, that IO requested 3-4 public persons to join the present investigation, but none of them agreed and they all left the spot without disclosing their names and addresses, that he along-with HC Ajit, Ct. Mahender and HC Bhimesh and secret informer constituted a raiding party and reached near Railway Line, Dargah Mooshey Shah/Bhule Shah, that they saw one person was placing one bulky plastic sack bag on the head of the other, that the secret informer pointed towards those persons that they are the persons as informed by him, that secret informer was discharged from the spot, that on the identification of the secret informer, he apprehended the person on whose head plastic sack bag was place and Ct. Mahender apprehended the other person, that the name of person apprehended by him was revealed as Aklu after interrogation and the name other person apprehended by Ct. Mahender was revealed as Robin @ Bengali, that there were total 6 such plastic sack bags, that HC Bhimesh opened the FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.5 of 18 bags and checked them, that on checking the same, they found each of the plastic sack bag containing 150 quarter bottles of 180 ml each of illicit liquor bearing the label of "Asli Santra Masaledar Desi Sharab for sale in Haryana only", that IO separated two bottles as sample from each of the six bags and the remaining 148 bottles were put in the same bags, that the bags were given as S.No. 1 to 6 and the samples were given as S.No.S1 and S12, that the cap of each of the samples were tide with white cloth and sealed separately with the seal of 'VK' and also sealed each of the bags separately with the seal of 'VK', that case property was seized vide seizure memo Ex.PW-2/A, that IO filled the form no.M-29 Ex. PW-2/B, that the seal after use was handed over to him, that IO prepared rukka and handed over the same to Ct. Mahender with direction to take the same to PS for getting the FIR registered, that he took the same to PS and after some time, he returned back to the spot along-with original rukka and original FIR along-with ASI Veer Pal for further investigation, that IO handed over both the accused persons, the seized plastic sack bags containing illicit liquor, form M-29, seizure memo and samples to ASI Veer Pal, that ASI Veer Pal prepared the site plan at instance Ex.PW-2/D of HC Bhimesh, that IO recorded statement of HC Bhimesh and he was discharged from the spot, that IO recorded the disclosure statement of both the accused persons Ex. PW-4/A and Ex. PW-4/B and arrested them vide memo Ex. PW- 4/C and Ex. PW-4/D and conducted their personal vide memos Ex. PW-4/E and Ex. PW-1/F, that the recovered illicit liquor and the car was taken to PS along-with accused persons, Ct. Mahender, HC Ajit and IO, that the case property was deposited in malkhana of PS and the accused persons were lodged in lock-up of PS, that IO recorded his statement in this regard, that case property is Ex. P-1.
11. In the cross examination, PW-4 deposed that he has not signed the DD of his departure. He admitted that no stamp is affixed on the DD no. 17-B and also not attested or verified by the concerned ACP. He denied that DD No. 17-B is false and fabricated. He deposed that he reached at the spot on foot. He admitted that spot is crowded place and people were coming and going from there. He further deposed that no notice was given to the public persons regarding refusal to join the investigation on FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.6 of 18 that day, that rukka was prepared at about 3:45 pm and Ct. Mahender return back to the spot after registration of FIR at about 4:30 pm, that he does not remember from what mode the case property was taken to the police station from the spot, that he does not remember whether his arrival DD was made or not. He denied that he has not joined the investigation, that no rukka was prepared regarding this FIR, that nothing recovered from the accused persons and they were present at the spot and they were lifted from their house, that all the proceedings were done while sitting in the PS and the case property is planted upon the accused persons, that he is deposing falsely.
12. PW-5 is HC Ajit, who deposed that on 23.07.2017, he was posted at PS Lahori Gate as constable, that on that day, his duty hours were from 9:00 am to 10:00 pm and was on patrolling duty along-with Ct. Dinesh, Ct. Mahender and HC Bhimesh vide DD No. 17- B, that copy of the same is Ex. PW-2/A, that at about 02:15 pm, while patrolling, when they reached Police Booth, Pull Mithai, one secret informer met with them and informed that two persons had arrived with heavy quantity of illicit liquor at the empty land of Railway behind Dargah Mooshey Shah/Bhule Shah and would supply the same in the jhuggies, that HC Bhimesh disclosed the information to them, that IO requested 3-4 public persons to join the present investigation, but none of them agreed and they all left the spot without disclosing their names and addresses, that he along-with Ct. Dinesh, Ct. Mahender and HC Bhimesh and secret informer constituted a raiding party and reached near Railway Line, Dargah Mooshey Shah/Bhule Shah, that they saw one person was placing one bulky plastic sack bag on the head of the other, that the secret informer pointed towards those persons that they are the persons as informed by him, that secret informer was discharged from the spot, that on identification of the secret informer, he apprehended the person on whose head plastic sack bag was place and Ct. Mahender apprehended the other person, that the name of person apprehended by Ct. Dinesh was revealed as Aklu after interrogation and the name other person apprehended by Ct. Mahender was revealed as Robin @ Bengali, that there were total 6 such plastic sack bags, that HC Bhimesh opened the bags and checked them, that they found each of the plastic sack bag containing 150 quarter bottles of 180 ml each FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.7 of 18 of illicit liquor bearing the label of "Asli Santra Masaledar Desi Sharab for sale in Haryana only", that IO separated two bottles as sample from each of the six bags and the remaining 148 bottles were put in the same bags, that the bags were given as S.No. 1 to 6 and the samples were given as S.No.S1 and S12, that the cap of each of the samples were tied with white cloth and sealed separately with the seal of 'VK' and also sealed each of the bags separately with the seal of 'VK', that case property was seized vide seizure memo Ex.PW-2/A, that IO filled the form no.M-29 Ex. PW-2/B, that the seal after use was handed over to Ct. Dinesh. IO prepared rukka and handed over the same to Ct. Mahender with direction to take the same to PS for getting the FIR registered, that he took the same to PS and after some time, he returned back to the spot along-with original rukka and original FIR along-with ASI Veer Pal for further investigation, that IO handed over both the accused persons, the seized plastic sack bags containing illicit liquor, form M-29, seizure memo and samples to ASI Veer Pal, that ASI Veer Pal prepared the site plan at instance of HC Bhimesh Ex.PW-2/D, that IO recorded statement of HC Bhimesh and he was discharged from the spot, that IO recorded the disclosure statement of both the accused persons Ex. PW-4/A and Ex. PW-4/B and arrested them vide memo Ex. PW-4/C and Ex. PW-4/D and conducted their personal vide memos Ex. PW-4/E and Ex. PW-4/F, that recovered illicit liquor was taken to PS along-with accused persons, Ct. Mahender, Ct. Dinesh and IO, that the case property was deposited in malkhana of PS and the accused persons were lodged in lock-up of PS, that IO recorded his statement in this regard, that case property is Ex. P-1.
13. In the cross examination, PW-5 deposed that he has not signed the DD of his departure. He admitted that no stamp is affixed on the DD no. 17-B and also not attested or verified by the concerned ACP. He denied that DD No. 17-B is false and fabricated. He further deposed that he reached at the spot on foot. He admitted that spot is crowded place and people were coming and going from there. He deposed that no notice was given to the public persons to join the investigation on that day, that rukka was prepared at about 3:45 pm and Ct. Mahender return back to the spot after FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.8 of 18 registration of FIR at about 4:30 pm, that he do not remember from what mode the case property was taken to the police station from the spot, that he do not remember whether his arrival DD was made or not. He denied that he has not joined the investigation, that no rukka was prepared regarding this FIR, that nothing recovered from the accused persons and they were present at the spot and they were lifted from their house, that all the proceedings were done while sitting in the PS and the case property is planted upon the accused persons, that he is deposing falsely.
14. PW-6 is ASI Veer Pal, who deposed that on 23.07.2017, he was posted at PS Lahori Gate as ASI and was present in the PS, that DO through Ct. Mahender handed over him the rukka along with the copy of FIR for further investigation, that he along with Ct. Mahender reached at the spot for further investigation, that he reached at the spot where HC Bhimesh, Ct. Dinesh, HC Ajit and Ct. Mahender along with both the accused persons and the seized case property were already present there, that HC Bhimesh handed over both the accused persons, the seized plastic sack bags containing illicit liquor duly sealed with the seal of VK, form M-29, seizure memo and samples to him, that he prepared the site plan at instance of HC Bhimesh Ex. PW-2/D, that he recorded statement of HC Bhimesh and he was discharged from the spot, that he recorded the disclosure statement of both the accused persons Ex. PW-4/A and Ex. PW-4/B and arrested them vide memo Ex. PW-4/C and Ex. PW-4/D and conducted their personal vide memos Ex. PW-4/E and Ex. PW-4/F, that the recovered illicit liquor was taken to PS along- with accused persons, Ct. Mahender, Ct. Dinesh and HC Ajit along with him, that the case property was deposited in malkhana of PS and the accused persons were lodged in lock-up of PS, that he recorded statement of witnesses in this regard, that case property is Ex. P-1. He further deposed that on 02.08.2017, he sent the samples to Excise Lab through Ct. Mahender vide RC No. 62/21/17 Ex. PW-6/A, that till the time the samples were handed over to Ct. Mahender, they were intact and were not tampered with, that Ct. Mahender, accordingly, took the samples to the Excise Lab and deposited the same with the Excise Lab and obtained the acknowledgement and handed over the same to the MHC(M), that he recorded his statement, that after few FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.9 of 18 days, he collected the report from the Excise Department and after completion of investigation, he prepared the chargesheet.
15. In the cross examination, PW-6 deposed that he has not signed the DD of departure, that he reached at the spot on foot. He admitted that spot is crowded place and people were coming and going from there. He further deposed that no notice was given to the public persons to join the investigation on that day. He admitted that rukka and seizure memo were prepared at one go and no alteration on the same were made thereafter, that no photographs of the case property were taken at the spot. He further deposed that he do not remember from what mode the case property was taken to the police station from the spot, that he does not remember whether his arrival DD was made or not. He denied that he has not joined the investigation that no rukka and FIR were handed over to him, that the nothing recovered from the accused persons and they were not present at the spot and they were lifted from their house, that all the proceedings were done while sitting in the PS and the case property is planted upon the accused persons, that he is deposing falsely.
16. It is pertinent to note that vide separate statement dated 30.03.2019 accused persons have admitted the genuineness and correctness of report of chemical examiner Ex. PA-1, RC No. 62/21/17 dated 02.08.2017 Ex. PW-6/A and entry in register no. 19 Ex. PA-2. Accordingly, witnesses namely MHC(M) HC Surender, Brijender (Deputy Chemical Examiner) and Amit Paul (Asst. Chemical Examiner) were dropped from the list of witnesses vide order dated 30.03.2019.
17. It is also pertinent to note that vide separate statement dated 30.03.2019 witness namely Ct. Mahender was dropped from the list of witnesses as witnesses namely HC Bhimesh, Ct. Dinesh and HC Ajit have already been examined on the same lines.
STATEMENT OF ACCUSED FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.10 of 18
18. PE was thereon closed by the Court and statement of accused persons Aklu and Robin @ Bengali were recorded u/s 281/313 CrPC vide order dated 01.04.2019, wherein the accused persons denied all the incriminating evidence against them and stated that they have been falsely implicated in this case. Since, the accused persons did not wish to lead any defence, hence, matter was fixed for final arguments straightaway.
19. Final arguments heard. File perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
20. In the case in hand the accused persons Aklu and Robin @ Bengali are charged for the offence u/s 33 Delhi Excise Act.
21. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant/ state in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed as follows:-
22. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. Perusal of the record shows that the place of apprehension of accused alongwith illicit liquor was a public place and public persons were present there, despite that no efforts made by the IO to join the public/independent witness in the case in hand. It is apparent from the testimony of PWs that all the proceedings regarding seizure and sealing of case property was done FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.11 of 18 by police officials who were posted in the same police station and not by any independent witness which makes it highly probable that the entire proceeding were conducted at the police station, that the case property was tampered with and that the alleged recovery was planted upon the accused at the police station.
23. PWs have categorically deposed about presence of independent public witnesses however, no sincere efforts have been made to join them in investigation.
24. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining independent witnesses.
25. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
26. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that place was residential area and one or two persons from the locality could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the public persons had declined to join the raiding party, the police could have later on taken legal action against such persons because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
27. In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.12 of 18 "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. 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".
28. Considering the aforesaid observations made by the Higher Courts, the omissions /failure on the part of investigating agency to join independent public witnesses creates reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
29. Furthermore, the testimony of PWs shows that seizure memo Ex. PW-2/A and Form M- 29 Ex., PW-2/B, were prepared before sending the rukka. However, perusal of the said document clearly shows that the FIR number and other particulars of the present case are mentioned on the said document. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those document which were prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.13 of 18 creates doubt and benefit should go to the accused.
30. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
31. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.14 of 18 acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
32. It is pertinent to mention here that IO has not inquired from the accused about source of illicit liquor and investigation is silent regarding the source of liquor for the reasons best known to the investigating agency.
33. It is also pertinent to note here that there is only one DD entry bearing no. 17-B is on record and no stamp is marked on the DD No 17-B and also not attested or verified by the concerned ACP, thereby raising doubt about the genuineness of aforesaid DD.
34. Further, perusal of the record reveals that witnesses has not filed DD entry of their arrival and departure except DD No. 17-B which is not reliable. Prosecution witnesses have failed to prove documentary evidence or the DD entries to show their movement from the police station for patrolling or investigation of the case.
35. Regarding the value of making DD entry it is worth mentioning that as per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under :-
22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
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.
FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.15 of 18 Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 19872 (2) Crimes 29 the Hon'ble Delhi High Court "Wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the court will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
36. In the present case, the above said provision appears to have not been complied with by prosecution. These omissions on the part of the prosecution create doubt on the version that the accused was personally searched / arrested with the alleged liquor at the spot by the said PWs.
37. Being guided by abovesaid case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of alleged illicit liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.16 of 18 prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
38. The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
39. Furthermore, it is admitted fact that neither IO has called any photographer at the spot for capturing the photographs of illicit liquor nor he himself clicked any photographs at the spot, thereby reflecting bad investigation.
40. Perusal of record reveals that information about the illicit liquor was given by some secret informer and said secret informer played an important role in initiating the proceedings and for nabbing the accused. However, no plausible explanation has been given for not citing and examining said secret informer as witness in order to prove the case of prosecution for the reasons best known to the investigating agency.
41. Furthermore, Prosecution Witnesses miserably failed to depose about the mode and manner by which case property was taken to police station, which raises doubt about the investigation of the police officials.
FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.17 of 18
42. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, absence of photographs, absence of DD entry, absence of public persons the prosecution has failed to establish its case against the accused persons Aklu and Robin @ Bangali beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused persons and therefore, accused persons stands acquitted for the offence under Section 33 Delhi Excise Act accordingly.
43. Necessary Bail bonds with sureties along with latest passport size photographs and residence proof furnished in compliance of Section 437 A CrPC. Same are accepted for a period of six months from today.
44. File be consigned to the record room after due compliance.
Digitally signed SHILPI by SHILPI JAIN
Date:
Announced and Signed in the Open Court
JAIN 2019.04.01
17:05:29 +0530
on 01.04.2019 (Shilpi Jain)
MM-01(Central)/THC/Delhi
01.04.2019
FIR No.141/17 PS Lahori Gate State Vs. Aklu & Ors. Page no.18 of 18