Delhi District Court
State vs Mandeep Singh Etc on 7 October, 2024
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF JUDICIAL MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 2034933/2016
STATE Vs. MANDEEP SINGH ETC
State vs. Mandeep Singh etc
FIR No. 38/2012
Police Station : Hauz Khas
Under Section : 33 Delhi Excise Act
Date of institution : 31.05.2012
Date of reserving : 04.10.2024
Date of pronouncement : 07.10.2024
JUDGMENT
a) Serial number of the case : 2034933/2016 b) Date of commission of : 06.02.2012 offence c) Name of the complainant : HC Jai Pal d) Name, parentage and : i) Mandeep Singh S/o Sh. Swaraj
address of the accused Singh R/o Gali No. 3, Village persons Jagatpuri, Near Burari, Delhi. ii) Anoop Kumar S/o Sh. Charan Lal R/o J-1, Dakshinpuri, New Delhi e) Offence complained of : 33 Delhi Excise Act f) Plea of the accused persons : Accused persons pleaded not guilty g) Final order : Acquittal h) Date of final order : 07.10.2024 State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 1 of 24 BRIEF STATEMENT OF FACTS FOR THE DECISION CASE OF THE PROSECUTION
1. It is the case of the prosecution that on 06.02.2012 at about 09:40 PM, at Double Decker Restaurant/Bar, 3rd and 4th floor, South Extension Part-II, accused persons i.e. Mandeep Singh and Anoop Kumar, both being owner and Manager respectively of the above said restaurant/bar, were found in possession of huge quantity of illicit liquor, without having any licence or permit. Thus, they committed offence punishable under Section 33 Delhi Excise Act.
CHARGE
2. Vide orders each dated 06.08.2014, separate charge for the offence punishable under Section 33 Delhi Excise Act were framed against both the accused persons, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
3. Vide order dated 20.04.2024, in compliance to the provisions of Section 294 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), both the accused persons were called upon to admit the genuineness of: i) Endorsement by the DO; ii) The present FIR; and iii) Report of Excise Control Laboratory vide Ex A1 to A3.
EVIDENCE OF THE PROSECUTION
4. Prosecution has examined seven witnesses i.e. PW1 HC Ramesh State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 2 of 24 Chand, PW2 ASI Ved Prakash, PW3 Sh. Brijender Singh (Retired Chemical Examiner), PW4 ASI Kehar Singh, PW5 ASI Nihal Singh, PW6 SI Jaipal and PW7 HC Matadin Swami.
5. PW1 HC Ramesh Chand deposed that on 06.02.2012, he along with HC Ved Prakash and Ct. Nihal Singh was present in the market of South Ex-II. At about 9:30 pm, they got an information that illicit liquor for sale in Haryana only was being served in the Double Decker Bar and Restaurant, E-3, South Ex. Part-II. At the same time, they met with HC Jai Pal, Ct. Kehar Singh, Ct. Rakesh and Ct. Ravi Kumar, who told them that the same information had been received by them as well. HC Jai Pal prepared a raiding party. They asked 4-5 public persons to joined the investigation but no one joined. At about 9:40 pm, they reached at the 3 rd floor of above said restaurant. HC Ved Praksh, Ct. Nihal and others were sent to 4th floor. PW1 along with HC Jai Pal and Ct. Kehar Singh was searching at 3rd floor, where they met with accused Mandeep at the counter of the bar. There, different kind of bottles of liquor were kept on which "Sale in Haryana only" was written. HC Jai Pal and PW1 searched the store room where they found different kind of boxes of beer bottles. Thereafter, HC Jai Pal reached at 4th floor and PW1 stayed at 3rd floor. HC Jai Pal, HC Ved and Ct. Nihal brought many illicit liquors from the 4 th floor to the 3rd floor. HC Jai Pal took the sample of each brand and made the seizure memo of all illicit liquors vide Ex PW1/A and also made a separate seizure memo of recovery of illicit liquors at the 3 rd floor vide seizure memo Ex PW1/B. Thereafter, HC Jai Pal prepared rukka and also sealed all the illicit liquors with the seal of JP. M-29 Form was also filled by HC Jai Pal. Thereafter, at about 1:30 am, HC Jai Pal sent Ct. Kehar State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 3 of 24 Singh with rukka to lodge FIR in the PS. Thereafter, Kehar Singh returned with copy of FIR and original rukka. Thereafter, they arrested accused Mandeep vide Ex PW1/C and also made personal search of the accused vide Ex PW1/D. Thereafter, HC Jai Pal came to the PS and handed over the illicit liquors to the Malkhana. PW1 correctly identified both the accused persons. The MHC(M), Hauz Khas produced the case property i.e 6 kattas of illicit liquor sealed with the seal of JP and that kattas were containing boxes but neither the boxes nor the bottles were found sealed in the kattas. The witness was duly cross-examined by the Ld. Defence Counsel.
6. PW2 ASI Ved Praskash deposed that on 06.02.2012, he was posted as HC with Excise Department, Vikas Bhawan. On that day at about 9:30 pm, he along with Ct Nihal and HC Ramesh was present at South Extension Market where one secret informer came near to them and informed that illicit liquor was being served in Double Decker Bar, E-3, South Extension Part II and if raided, the illicit liquor would be recovered. In the meantime HC Jaipal, Ct. Kehar Singh, Ct. Hazari Lal, Ct. Ravi and Ct. Rakesh met them. The information was shared to them. HC Jaipal told PW2 that they had already received the information. They became members of the raiding party which was prepared by HC Jaipal. Four-five public persons were requested to join the raiding party but no one came forward and left the spot without disclosing their names and addresses. At about 09:40 pm, a raid was conducted at Double Decker Bar, E-3, South Extension Part II. PW2 along with Ct. Nihal Singh and Ct. Rakesh was instructed to conduct the raid at 4 th floor and HC Jaipal along with other official conducted the raid at 3rd floor. When PW2 State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 4 of 24 entered at 4th floor of the bar, he found accused Anoop Singh present on the counter and 12 bottles of illicit liquor of different brands were found on the counter. One takila stopper fitted, 1 teacher's highland stopper fitted, 2 sealed teacher's highland bottles, 1 stopper fitted and one sealed blender pride bottles, 1 bottle of bacardi, 1 bottle of red ruby wine, 1 bottle absolute vodka, 1 gorvachock vodka, 1 bottle of magic moment and 1 bottle of Roma Nov were found. The case properties were seized and same were sealed with the seal of JP vide seizure memo Ex PW2/A. After using the seal, it was handed over to Ct. Kehar Singh. HC Jaipal prepared tehrir and the same was handed over to Ct. Kehar Singh for getting the FIR registered. After registration of FIR, Ct. Kehar Singh returned to the spot and the original tehrir and copy of FIR were handed over to IO HC Jaipal. Accused Anoop was arrested by the IO vide arrest memo Ex PW2/B and his personal search was conducted vide memo Ex PW2/C. The MHC(M) had produced a sealed plastic katta duly sealed with the seal of SR. Seals were broken and 12 bottles of liquor, Make Takila stopper fitted, Teachers highland stopper fitted, Blender pride, Bakardi, Red Ruby wine, Absolute Vodka, Gorvachock Vodka, Magic moment and Romanova were taken out. After seeing the same, the witness had stated that the said bottles were taken as sample from the recovered liquors and correctly identified the same as recovered from the different floors. PW2 correctly identified both the accused persons.
7. PW3 Sh. Brijender Singh, Retired Chemical Examiner proved his report bearing No. ECL/SZD, No. 3447 to 3490 dated 21.03.2012 vide Ex PW3/A qua the sample bottles received in his Department on 06.03.2012.
State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 5 of 24
8. PW4 ASI Kehar Singh deposed that on 06.02.2012, he along with IO HC Jai Pal, Ct Rakesh, Ct Ravi and Ct Hazari Lal were on beat patrolling duty in the area of South Extension Part II. During patrolling, at about 9:30 pm, one secret informer met the IO and shared an information regarding selling of illicit liquor at Double Decker Bar/Restaurant without valid licence. In the meantime, Ct Nihal, HC Ved Prakash and HC Ramesh from Excise Department also reached there as they also had the same information. Thereafter, IO shared the information with the SHO concerned. Thereafter, IO constituted raiding team including PW4 and above mentioned officials. Thereafter, at about 9:40 pm, PW4 along with HC Jai Pal, HC Ramesh and Ct Ravi went to the Double Decker Restaurant at E3, third floor, South Extension Part II. Thereafter, HC Ved Prakash, Ct Nihal and Ct Rakesh went to the fourth floor of said building. When they reached at 3 rd Floor, they met accused Mandeep and found that various kinds of liquor were found in unsealed condition at the counter of the said restaurant. Out of them, one bottle of Teacher whisky for sale in Haryana only and four bottles of Teacher whisky for sale in Delhi only, one bottle of Vodka for sale in Delhi only, two bottles of 100 Piper for sale in Delhi only and one bottle of Blender Pride for sale in Delhi only were found. Thereafter, they also checked the store room of said restaurant and found 42 bottles of Royal Estate Whisky for sale in Haryana only in four gatta pettis and 13 pettis of Beer of different brands for sale in Haryana only. IO took samples from the above mentioned illicit liquor and sealed them with the seal of JP and remaining case properties were also sealed with the same. Thereafter, the same was seized. Thereafter, they went to 4 th floor of said building where illicit liquor were also recovered by the other member of raiding team which State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 6 of 24 were sealed and seized by the IO. After sealing the case property, the seal was handed over to PW4. Thereafter, IO prepared tehrir and got the FIR registered through PW4. After registration of FIR, PW4 came back to the spot and handed over the copy of FIR and original rukka to IO. IO interrogated accused Mandeep and after interrogation, he arrested him and conducted his personal search. PW4 correctly identified accused Mandeep. The MHC(M) produced the case property i.e. samples of illicit liquor with court seal. After opening of the pullanda, one packed bottle of Sula Brut 750 ml, one packed bottle of Aristocrat Gin, one packed bottle of Blender Pride whisky, one packed bottle of Hercules white rum, one packed bottle of Royal Stag whisky for sale in Haryana only, one packed bottle of Bacardi original premium rum for sale in Haryana only, one packed bottle of Romanov vodka for sale in Haryana only, one packed bottle of Corona Beer, one packed bottle of Budiveiser beer (330 ml), one packed bottle of Breezer beer (275 ml), one packed bottle of Kingfisher beer (330 ml), one packed bottle of Turbog, one packed bottle of Breezer (275 ml) and one packed bottle of Breezer (275 ml) were taken out which were total 14 bottles in number and the witness correctly identified the same. The witness was duly cross-examined by the Ld. Defence Counsel.
9. PW5 ASI Nihal Singh reiterated the version of PW4 ASI Kehar Singh, as they both had gone together along with other officials to the Double Decker Bar, E-3, South Extension Part II, New Delhi, where the illicit liquors were recovered. Additionally, PW5 deposed that IO prepared site plan. He further deposed that accused Anoop was arrested and his personal search was conducted. PW5 correctly identified accused Anoop. The witness was duly cross-examined by the Ld. Defence State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 7 of 24 Counsel.
10. PW6 SI Jaipal deposed that on 06.02.2012, he along with Ct Kehar singh, Ct Hazari, Ct Rakesh and Ct Ravi was on beat patrolling duty in South Extension Part II. At about 9:30 pm, a secret informer informed him regarding service of illicit liquor (Haryana brand) in Double Decker restaurant, E-3, South Extension without having any licence. In the meantime, HC Ramesh, HC Ved Prakash and Ct Nihal from Excise Department also reached there as they were also having the same information. Thereafter, PW6 shared the information with PS Hauz Khas and the SHO directed him to take appropriate action. Thereafter, PW6 requested 2-3 persons to join the investigation, however, nobody agreed and they left the spot without disclosing their details. No notice was served upon them due to paucity of time. Thereafter, PW6 prepared raiding party consisting himself along with Ct Kehar Singh, Ct Hazari, Ct Rakesh, Ct Ravi, HC Ramesh, HC Ved Prakash and Ct Nihal. Thereafter, they reached at Double Decker restaurant on 3 rd floor and 4th floor, E3, South Extension Part II. HC Ved Prakas, Ct Nihal and Ct Rakesh conducted raid on 4th floor and PW6 along with other staff raided on 3rd floor. PW6 along with other staff entered the restaurant on 3 rd floor and one person, namely, Mandeep met on the bar/reception counter, where 12 different brands of illicit liquor were placed. Thereafter, PW6 went to 4th floor, where he met Anoop on the bar counter and there 11 bottles of different brands of illicit liquor were placed. Thereafter, PW6 searched both the floors. PW6 found 5 petti of Kingfisher beer (330 ml) having 24 cans in each petti, 2 petti of Turbo beer can (330 ml) having 24 can in each petti, 2 petti of Budweiser beer (330 ml) having 24 can in State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 8 of 24 each petti, 1 petti of Corona beer (330 ml) having 24 cans, 1 petti of Cranberry Orange beer (330 ml) having 24 cans, 1 petti of Cranberry Jasmine beer (330 ml) having 24 cans, 1 petti of Blender Pride Whisky (750 ml) having 12 bottles for sale in Haryana only, 1 petti of Teacher Whisky (750 ml) having 12 bottles for sale in Haryana only, 1 petti of Royal Stag Whisky (750 ml) having 12 bottles for sale in Haryana only, 1 petti of Sella Bright Whisky (750 ml) having 12 bottles for sale in Haryana only, 3 bottles of Bacardi Whisky (750 ml) for sale in Haryana only, 2 bottles of Old Monk rum (750 ml) for sale in Haryana only and 8 other bottles of different brands which were for sale in Haryana only from the room which was situated near the counter of the said restaurant on 3 rd floor. Thereafter, PW6 took one bottle as sample of all brands and sealed the same with the seal of JP. Thereafter, PW6 inquired from both accused persons regarding the licence for selling the aforesaid liquors and they failed to produce any licence and any satisfactory answer. Thereafter, PW6 prepared pullanda of all recovered illicit liquor from 3 rd and 4th floor and sealed the same with the seal of JP. After sealing the case property, the seal was handed over to Ct Kehar Singh. Thereafter, the case property was taken into police possession. Separate seizure memos were prepared regarding recovered liquors from the room and counters of 3 rd and 4th floors. PW6 also filled Form M29. Thereafter, PW6 prepared rukka vide Ex PW6/A and got the FIR registered through Ct Kehar Singh. After registration of FIR, Ct Kehar Singh reached at the spot and handed over to PW6 the copy of FIR and original rukka. Thereafter, PW6 prepared site plan vide Ex PW6/B. After interrogation, PW6 arrested accused Mandeep and Anoop and conducted their personal search. During interrogation, accused Mandeep disclosed that he was the owner of the Double Decker State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 9 of 24 Restaurant and he had taken the premises on rent and he also produced documents regarding the same which were marked as Mark 6A. Thereafter, the case property was deposited into Malkhana. After medical examination, accused persons were kept behind bar. During the course of investigation, PW6 recorded statements of witnesses and sent the sample to the Excise Laboratory and got result on the same. After completing investigation, PW6 prepared charge sheet and filed it in the court. PW6 correctly identified the accused persons. The witness was duly cross- examined by the Ld. Defence Counsel.
11. PW7 HC Matadin Swami deposed that on 05.03.2012, he was posted as Constable at PS Hauz Khas and was working as assistant with MHC(M). On that day, on instructions of the IO, MHC(M) had handed over to PW7 44 sealed samples with the seal of JP along with two copies of M29 Form and copy of Road Certificate No. 350/21/12. Copy of RC was exhibited as Ex PW7/A. Thereafter, PW7 had deposited the samples with the Excise Lab and took acknowledgment from there. Thereafter, PW7 came back to the PS and handed over the acknowledgment to the MHC(M). During the custody of PW7, no tampering had been done with the samples. The witness was duly cross-examined by the Ld. Defence Counsel.
STATEMENT / DEFENCE OF THE ACCUSED
12. The accused Anoop in his statement recorded under Section 313 of the Code denied the entire evidence put to him. He stated that he has been falsely implicated in present case. He admitted that he was the Manager State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 10 of 24 of Double Decker Restaurant at that time and he had worked there for about a month. He further stated that on the date of incident the restaurant was shut as it was a Monday and the market was closed on Mondays. He further stated that he was asked to come to the restaurant by co-accused Mandeep on raid by police officials. He also denied that liquor was sold in the restaurant without a license. He categorically stated that he is innocent and has been falsely implicated in the present case.
13. On similar lines, accused Mandeep in his statement recorded under Section 313 of the Code denied the entire evidence put to him. He stated that he has been falsely implicated in present case. He admitted that he was the Owner of Double Decker Restaurant. He further stated that on the date of incident the restaurant was shut as it was a Monday and the market was closed on Mondays. He further stated that he received a call from police officials and they asked him to come and open the restaurant. He further stated that nothing was recovered from his restaurant. He also denied that liquor was sold in the restaurant without a license. He categorically stated that he is innocent and has been falsely implicated in the present case.
14. Both the accused persons did not lead any evidence in their defence. Hence, the matter was then listed for final arguments.
ARGUMENTS
15. Sh. Naresh Choudhary, learned Assistant Public Prosecutor for the State addressed pertinent arguments. He submitted that the accused persons as well as the case property have been correctly identified by the State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 11 of 24 witnesses. He stated that link evidence is also available. He urged that the case has been proved beyond doubt against the accused persons and prayed for conviction of the accused persons.
16. On the other hand, Mr. Rajesh Singh, learned counsel for the accused persons submitted that the accused persons have been falsely implicated by the police and nothing was recovered from the restaurant. He submitted that the absence of public witnesses, on the alleged recovery is fatal to the case of the prosecution. He prayed for acquittal of the accused persons.
ANALYSIS AND FINDINGS
17. 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 persons have been considered.
Charge under Section 33 Delhi Excise Act
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 Restaurant owned by the accused Mandeep and managed by accused Anoop was raided and illicit liquor was found to be sold without any permit or licence. In order to bring home the charge against the accused persons, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the Restaurant.
19. Relying upon Section 52 of the Delhi Excise Act, learned Assistant State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 12 of 24 Public Prosecutor for the State argued that where the accused persons are 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 persons had committed the said offence and it is for the accused persons to prove the contrary. The said argument does not find favour with this Court. 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 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. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the alleged illicit liquor was recovered from the Restaurant owned by accused Mandeep and managed by accused Anoop. Accordingly, no presumption as provided for under Section 52 of the State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 13 of 24 Delhi Excise Act can be raised against the accused persons in the present case.
21. The deposition of the IO / PW6 SI Jaipal is pertinent. PW6 SI Jaipal deposed that he along with Ct. Kehar Singh, Ct. Hazari, Ct. Rakesh and Ct. Ravi were on beat patrolling duty in South Extension Part II on 06.02.2012. A secret informer informed him at about 9:30 p.m. regarding service of liquor in Double Decker Restaurant without any license. In the meantime, HC Ramesh, HC Ved Prakash and Ct. Nihal from Excise Department also reached there as they received the same information. PW6 requested 2-3 persons to join the investigation, but none agreed and left the spot without disclosing any details. No notice was served upon them on account of paucity of time. The restaurant was at the 3rd and 4th floor of the building. HC Ved Prakash, Ct. Nihal and Ct. Rakesh conducted raid on the 4th floor and PW6 SI Jaipal along with other staff (i.e. Ct. Kehar Singh, Ct. Hazari, Ct. Ravi, HC Ramesh) conducted raid on the 3rd floor. On the 3rd floor, accused Mandeep was at the reception counter and 12 different brands of illicit liquor were placed on the said counter. Thereafter, IO / PW6 SI Jaipal went to the 4th floor and found accused Anoop on a bar counter and there were 11 different brands of illicit liquor. After search, liquor was seized as per seizure memo from both the floors. On inquiry, both the accused persons could not produce liquor license. The illicit liquor was sealed with the seal JP and the seal was then handed over to Ct. Kehar Singh. Rukka (Ex. PW6/A) was prepared and FIR was registered through Ct. Kehar Singh. Subsequent to completion of the investigation, the present chargesheet has been filed by the IO.
State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 14 of 24
22. The deposition of the IO w.r.t. course of investigation in juxtaposition with the depositions of other prosecution witnesses has shown the following glaring contradictions / discrepancies which attune to the benefit of the accused persons:
a) Firstly, there is inherent contradiction in the manner in which information was received from the secret informer by the police officials and the officials of the Excise Department. IO / PW6 SI Jaipal deposed that the secret informer informed him regarding sale of liquor in the Restaurant at about 9:30 p.m. near Mc Donalds Restaurant at South Extension. He further stated that after some time, officials from Excise Department also reached the spot as they had received the same information. Therefore, as per IO / PW6 SI Jaipal, at 9:30 p.m., the secret informer met him and his team and later, officials from Excise Department came to the spot.
To the contrary, PW5 ASI Nihal Singh has deposed that secret informer met him and other officials from Excise Department at 9:30 p.m. at South Extension. Adding on to the confusion with respect to the sequence of events, PW2 ASI Ved Prakash deposed in his cross-examination that the information was received prior to leaving the Excise Office. PW1 SI Ramesh Chand deposed that prior to their visit to South Extension, the Excise Team had information about serving of liquor without a license in the alleged Restaurant. PW1 did not depose that the the secret informer met the Excise Team at the spot at about 9:30 p.m. The pertinent question is how the secret informer could have disclosed the exact same State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 15 of 24 information at the same spot at the same time i.e. 9:30 p.m. to both the teams' independently? The said submissions are contradictory being inherently improbable.
b) Secondly, no documents pertaining to the police officials of PS Hauz Khas being on patrolling duty has been placed on record. Similarly, the information received from the secret informer has not been reduced in writing. IO / PW6 SI Jaipal stated that he informed the SHO telephonically on receipt of secret information. However, the SHO ought to have registered an entry in the register with respect to creation of a raiding party and reduced the information of the secret informer in writing. No documents have been prepared in support of the investigation which casts aspersion on the version of the investigating officials.
c) Thirdly, PW5 ASI Nihal Singh deposed that teams were already constituted when they left their office. However, PW6 SI Jaipal and PW4 ASI Kehar Singh deposed that raiding team was constituted at the spot after receipt of information at South Extension Market. Similarly, PW2 ASI Ved Prakash also deposed that raiding team was constituted on the spot by IO SI Jaipal.
d) Fourthly, on the issue as to whether the entire market was closed on the date of incident as it was a Monday which was a weekly off for South Extension market, PW6 SI Jaipal has deposed that some shops were open and some were closed. However, the question remains that if some shops were open, an attempt ought to have been made by the IO to join the shopkeepers of the adjacent shop in the investigation while raiding the Restaurant.
e) Fifthly, PW6 SI Jaipal deposed that when they entered 3rd State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 16 of 24 floor of the Restaurant, 3-4 persons were taking liquor. Similarly, PW5 ASI Nihal Singh deposed that on the 4th floor, 4-5 public persons were present who were being served liquor. PW1 SI Ramesh Chand deposed in his cross-examination that number of public persons were present at the Restaurant at the time of the raid. None of the officials of the raiding party have conducted any inquiry from the said persons or made attempts to join them in the investigation. PW5 ASI Nihal Singh deposed in his cross- examination that they informed the beat officer to join public persons. However, the chargesheet is silent on participation of any such beat officer in the investigation and attempts made by him to join public persons in the investigation.
f) Sixthly, the case of the prosecution is that at the time of raid of the Restaurant, alcohol was being served to customers. Therefore, other than the accused persons, there ought to have been servers / waiters / kitchen staff who were present at the Restaurant attending to the customers / guests. The said staff ought to have been joined in the investigation. Unlike public persons, they would not have fled from the spot. Moreover, details of the said staff could have been easily procured from the Restaurant and they could have been served notices later. None of the steps have been taken by the IO much to the prejudice of the prosecution.
g) Seventhly, none of the police officials conducted photography or videography of the raid proceedings. It is inexplicable that they did not record the proceedings by clicking a photography or recording a video of the recovery from the Restaurant. In the absence of public witnesses, the photography / State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 17 of 24 videography of the raid proceedings would have immensely helped the case of the prosecution. This lapse in conjunction with other lapses discussed above, render the recovery itself doubtful and create a doubt w.r.t. false implication.
h) Eighthly, casting further aspersions on the raid proceedings, none of the prosecution witnesses could re-collect the name of the shops which were on ground floor, 1st floor and 2nd floor of the said building. On specific questioning in this aspect, he deposed that there was separate entry for the restaurant. However, no other prosecution witness stated that there was a separate entry.
i) Ninthly, no seal handing over memo was prepared by the IO / PW6 SI Jaipal while handing over the seal to Ct. Kehar Singh. Further, IO / PW6 SI Jaipal stated that he received the seal at PS on the next day, however, no seal return memo / entry in the register was prepared even at that instance. It is also pertinent to note that PW4 ASI Kehar Singh admitted that no seal handover memo was prepared by the IO and the seal was returned to the IO PW6 SI Jaipal by PW4 ASI Kehar Singh on the next date which means that the seal was not deposited with the Malkhana. The Ld. Counsel for accused persons has averred that there is possibility of tampering of sample as the departure entry registered while PW7 HC Matadin Swami deposited the samples from MHC(M) to Excise Laboratory has not been placed on record.
j) Tenthly, contradictory submissions have been made by the excise officials as to their In-charge / Head. PW5 ASI Nihal Singh deposed that information was given to SI Aditya Ranjan in his capacity as the head of the team by HC Ramesh on receipt of State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 18 of 24 information from secret informer. However, PW2 SI Ved Prakash deposed in his cross-examination that the head of their team was one SI Sanjiv Mishra. Further, contrarily, PW1 SI Ramesh Chand deposed that one SI Rajiv Ranjan was the in-charge.
k) Eleventhly, the photocopy of the Conducting Agreement dated 1.09.2011 is placed on record. As per this agreement, the parties to the agreement were Ms. Priti Pandey and accused Mandeep in their capacity as M/s Rise Hospitality. It is crystal clear from the document that both Ms. Priti and accused Mandeep were owners of the Restaurant. However, no inquiry qua culpability of Ms. Priti Pandey in the capacity as owner of the Restaurant has been conducted by the IO. This shows that the investigation has been conducted in a casual manner.
23. Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. It is not the case of the prosecution that no public person was present at or near the spot of recovery as it is an admitted position that there were customers and staff at the Restaurant at the time of the raid. Despite presence of other shop keepers, public persons i.e. customers or the staff i.e. servers or waiters of the Restaurant have been joined in the raid or in the investigation who could have deposed that alcohol was served sans license in the Restaurant. Further, no notice was served upon the public persons for reasons which remain unexplained. The IO has neither served a notice upon the public persons nor wrote down the description of the persons who had allegedly refused to join the investigation. The IO had not served any notice under Section 160 of the Code upon the persons State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 19 of 24 who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by the IO to join public witnesses in the proceedings. From perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that non-joining of public witness casts doubt over the fairness of the investigation by police. Section 100(4) of the Code 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. This casts a doubt on the fairness of the investigation. Reliance is placed in the decision of the Hon'ble High Court of Delhi in Pawan Kumar vs. The Delhi Administration [1989 Cri. L.J. 127], wherein it has been observed that:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
24. Further, there is a real possibility of misuse of seal of the investigating officer in the present case. As per the prosecution case, the State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 20 of 24 seized liquor and case property were sealed by the investigating officer with the seal of JP. As per the police report, after use the seal was handed over to PW4 ASI Kehar Singh. The seal in the present case was not handed over to any independent witness nor was a seal handover / return memo was prepared when it was deposited in the Malkhana and later handed over to the concerned IO to assail the possibility of its misuse. Further, as per the testimony of PW4 ASI Kehar Singh, the seal was never deposited with the Malkhana. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
25. The seizure memos i.e. Ex. PW1/A, PW1/B and PW1/C and the rukka i.e. PW6/A were prepared prior to registration of FIR. As per the prosecution version, the rukka was handed over to PW4 ASI Kehar Singh who went to the P.S. and returned with a copy of FIR and then the site plan was prepared. It is, therefore, clear that the seizure memos of the liquor was 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 preparation of seizure memos Ex. PW1/A, Ex. PW1/B and Ex. PW1/C. 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 by PW4 ASI Kehar Singh. Thus, ordinarily, the FIR number should not find mention in the seizure memos, which came into existence before registration of the FIR. However, interestingly, the seizure memos Ex. PW1/A, Ex. PW1/B and Ex. PW1/C bear the FIR number and case details in the same handwriting in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. In the State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 21 of 24 decision of the Hon'ble High Court of Delhi in Pawan Kumar vs. Delhi Administration [1989 Cri. L.J. 127] it was observed 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 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."
26. Similarly, in paragraph 4 of Mohd. Hashim vs. State [1991 VI AD (Delhi) 569], the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and 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 State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 22 of 24 the prosecution."
27. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memos Ex. PW1/A, Ex. PW1/B and Ex. PW1/C. The same leads one to only one inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused persons.
CONCLUSION
28. The fact that no independent witness was cited or examined, possibility of misuse of seal has not been ruled out and the appearance of FIR number and case particulars on the seizure memo has not been explained, when kept in juxtaposition to each other as well as the apparent inconsistencies and contradictions in the depositions of the prosecution witnesses, casts a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused persons in the present case cannot be ruled out.
29. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused persons beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 23 of 24 to the accused persons.
30. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused persons, who are entitled to be exonerated of the charges against them in the present case. Accordingly, accused Mandeep Singh and Anoop Kumar are hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act. Case property be confiscated by the State as per rules.
31. File be consigned to Record Room.
Dictated and announced in open Court on 07.10.2024.
Digitally signedT by T PRIYADARSHINI (T. Priyadarshini) PRIYADARSHINI Date:
2024.10.14 Additional Chief Judicial Magistrate 15:05:13 +0530 South District, Saket Courts, New Delhi 07.10.2024 State vs. Mandeep Singh etc. FIR No. 38/2012, PS: Hauz Khas Page 24 of 24