Delhi District Court
State vs Savita on 12 October, 2023
IN THE COURT OF SH. AJAY NARWAL, MM-02, NORTH DISTRICT, ROHINI
COURTS, DELHI
State Vs. Savita
FIR No. 909/2015
PS: S.P. Badli
U/S : 33 Delhi Excise Act
JUDGMENT
ID number of the case : 5296077/2021
Date of commission of offence : 28.07.2015
Date of institution of the case : 28.03.2016
Name of the complainant : Ct. Rohtash
Name of accused and address : Savita W/o Sh. Anil, R/o House No. D-203,
Suraj Park, Samai Pur Badli, Delhi.
Offence complained of or proved : U/s 33 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of judgment : 12.10.2023
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. This is the prosecution of the accused namely Savita upon a charge sheet filed by the police official of police station SP Badli under section 33 Delhi Excise Act.
2. The allegation against the accused is that on 28.07.2015, at about 2.15 p.m. at 66 feet Road, near Chota Gurudwara, Bhagat Singh Park, Siraspur, Delhi within the jurisdiction of PS SP Badli, she was found in possession of one plastic katta containing FIR No. 909/2015 State Vs. Savita Page No. 1 of 13 illicit liquor for sale in Haryana only as per seizure memo Mark X which she was trying to carry without any permit or licence. Accordingly, she stands charged for offence U/s 33/38 Delhi Excise Act.
3. Briefly stated, as per the case of prosecution, PW2 HC Rohtash has deposed that on 28.07.2015, he was posted as Ct. at PS SP Badli. He was on petrolling duty. During petrolling, he reached in 66 foota road, Gurudwara Bhagat Singh, he saw a lady having white colour katta. On being checked, he found the illicit liquor therein. Thereafter, he informed the PS about the recovery of case property i.e. illicit liquor and apprehension of accused. Thereafter. IO/HC Giriraj and W/Ct. Priyanka reached at the spot. He handed over the custody of the case property as well of accused to him.
4. After completing the formalities, investigation was carried out by PS SP Badli and a charge sheet was filed against the accused. The charge was framed against the accused u/s 33 Delhi Excise Act, to which she pleaded not guilty and claimed trial.
5. In order to substantiate its case, prosecution has examined two witnesses.
6. PW1/ASI Giriraj Prasad deposed that on on 28.07.2015, he was posted as HC at PS SP Badli. On that day, on receiving DD No. 48 B which is Ex. PW1/A regarding apprehension of a person with illicit liqour at 66 foota Road, Near Chota Gurudwara FIR No. 909/2015 State Vs. Savita Page No. 2 of 13 Bhagast Singh Park, Siraspur, Delhi. Thereafter, he along with W/Ct. Priyanka reached the spot, where he found Ct. Rohtash along with accused and with plastic katta containing illicit liqour. Ct. Rohtash handed over the custody of the case property along with accused to him. Accused disclosed her name as Savita. He asked 3-4 passers by to join the investigation but none had agreed and left the spot without disclosing their names and addresses. He checked plastic sack which was found containing 125 quarter bottles of 180 ml of Asli Santra Masaledar Deshi Sharab. He took out 03 quarter bottles of illicit liquor from the plastic katta. All the remaining quarter bottles i.e. 122 were put back in the said colour plastic katta and dully sealed with seal of GR with the help of white colour cloth. Form M-29 was also filled at the spot and seal of GR was affixed on it. Sample quarter bottles were sealed with the seal of GR with help of white cloth. Seal after use was handed over to Ct. Rohtash. He had seized the sealed pullanda along with sample bottles and form M- 29 vide seizure memo i.e. Ex. PW1/B. Thereafter, he recorded statement of Ct. Rohtash i.e. Ex. PW1/C and prepared a Rukka i.e. Ex. PW1/D and handed over the same to Ct. Rohtash for registration of FIR. He accordingly went to PS, got the FIR registered and returned to the spot along with copy of FIR and original Rukka and handed over the same to him. He prepared the site plan at the instance of Ct. Rohtash i.e. Ex. PW1/E. He recorded the disclosure statement of accused i.e. Ex.PW1/F. W/Ct. Priyanka conducted formal search of the accused. He bound the accused u/s 41 A of C.rP.C vide memo Ex. PW1/G. Thereafter, they all came back at the PS. He deposited the case property in the Malkhana. During investigation, Ct. Mukesh had FIR No. 909/2015 State Vs. Savita Page No. 3 of 13 taken the samples quarter bottles to the Excise lab for its inspection and later on, he also received the excise result and filed before the court. He identified the accused as well as case property during his examination before the court. The said witness was duly cross examined by Ld. Defence counsel.
7. PW2 HC Rohtash has deposed that on 28.07.2015, he was posted as Ct. at PS SP Badli. He was on petrolling duty. During petrolling, he reached in 66 foota road, Gurudwara Bhagat Singh, he saw a lady having white colour katta. On being checked, he found the illicit liquor therein. Thereafter, he informed the PS about the recovery of case property i.e. illicit liquor and apprehension of accused. Thereafter. IO/HC Giriraj and W/Ct. Priyanka reached at the spot. He handed over the custody of the case property as well of accused to him. Accused disclosed her name as Savita. He handed over the custody of the case property along with accused to IO. IO asked 3-4 passers by to join the investigation but none had agreed and left the spot without disclosing their names and addresses. IO checked plastic sack which was found containing 125 quarter bottles of 180 ml of Asli Santra Masaledar Deshi Sharab. IO took out 03 quarter bottles of illicit liquor from the plastic katta. All the remaining quarter bottles i.e. 122 were put back in the said colour plastic katta and duly sealed with seal of GR with the help of white colour cloth. Form M-29 was also filled at the spot and seal of GR was affixed on it. Sample quarter bottles were sealed with the seal of GR with help of white cloth. Seal after use was handed over to him. IO had seized the sealed pullanda along with sample FIR No. 909/2015 State Vs. Savita Page No. 4 of 13 bottles and form M- 29 vide seizure memo i.e. Ex. PW1/B. Thereafter, IO recorded his statement ie. Ex.PW1/C and prepared a Rukka i.e. Ex. PW1/D and handed over the same to him for registration of FIR. He accordingly went to PS, got the FIR registered and returned to the spot along with copy of FIR and original Rukka and handed over the same to IO. IO prepared the site plan at his instance i.e. Ex. PW1/E. IO recorded the disclosure statement of accused i.e. Ex. PW1/F. W/Ct. Priyanka conducted formal search of the accused. IO bound the accused u/s 41 A of C.rP.C vide memo already Ex. PW1/G. Thereafter, they all came back at the PS. IO deposited the case property in the Malkhana.
9. Accused admitted the genuineness of FIR No. 909/2015, statement of Ct. Mukesh and HC Jagat Singh, who deposited the quarter sample before Excise Lab and report of chemical examiner u/s 294 of the Criminal Procedure Code, 1973 (herein after referred as Cr.P.C) as such formal examination of said witnesses were dispensed with. Statement of the accused was recorded U/s 313 read with 281 of Code wherein all the incriminating circumstances were put to her which she denied and pleaded her false implication and also false plantation of the case property. She, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
10. I have heard the Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached FIR No. 909/2015 State Vs. Savita Page No. 5 of 13 by the accused. Per contra, Ld. Counsel for the accused submitted that no public witnesses were examined in the present case regarding recovery of illicit liquor. He further submitted that the accused has been falsely implicated in the present case and the case property has also been planted against the accused.
11. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
12. Although, sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the accused 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. Relevant extract of the said provision is reproduced below:
"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 FIR No. 909/2015 State Vs. Savita Page No. 6 of 13 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."
13. But this presumption is rebuttable and accused can rebut the same by either referring to the prosecution's evidence or by adducing defence evidence. Also, it should be noted that 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 pre- requisite 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.
14. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case. Hence, he deserves to be acquitted.
15. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a FIR No. 909/2015 State Vs. Savita Page No. 7 of 13 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.
16. From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
17. In the instant case, as per the testimonies of PWs and also from the perusal of site plan Ex.PW1/E, the alleged recovery was made from a busy locality. Therefore, it cannot be said that no public person would have been available at the spot. Although prosecution witnesses have asserted that they implored some of the public witnesses to join the investigation but they refused to participate in the investigation. This explanation tendered by the prosecution witnesses does not seem to be tenable as neither the details of those public persons have been brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. If the public persons were really present at the spot, then the FIR No. 909/2015 State Vs. Savita Page No. 8 of 13 police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them.
18. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"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 shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers 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."
19. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials FIR No. 909/2015 State Vs. Savita Page No. 9 of 13 during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
20. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
FIR No. 909/2015 State Vs. Savita Page No. 10 of 13 "In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -as in the present case -that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
21. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated.
22. The prosecution did not even bring on record necessary DD entries to prove arrival and departure of the police officials from the police station. It should be noted that if the police personnel who has apprehended the accused with illegal liquor was on patrolling duty, prosecution should have brought the relevant records showing his arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II.
FIR No. 909/2015 State Vs. Savita Page No. 11 of 13 The following matters shall amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
23. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts 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."
24. Since all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that chances of false implication of accused under the provisions of Excise Act cannot be ruled out at the instance of the police.
25. As per the testimonies of PWs, the sample of liquor and case property were FIR No. 909/2015 State Vs. Savita Page No. 12 of 13 sealed by ASI Giri Raj Prasad with the seal of "GR" and after use the seal was handed over to Ct. Rohtash who subsequently deposited the same in malkhana. Interestingly, no seal handing over memo was ever prepared in the present memo. Also, prosecution did not file any document on record to show that the said seal was eventually deposed by PW/Ct. Rohtash in malkhana.
26. It is pertinent to mention that perusal of the seizure memo Ex. PW1/B would show that "FIR No. 909/2015" is mentioned therein. It is very difficult to understand as to how FIR No. could mentioned on the seizure memo when the FIR itself was not registered at the time of preparation of seizure memo.
27. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution's case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. As such the accused deserves acquittal in the present case.
28. Therefore, in view of the above discussions and findings, the accused Savita is acquitted for the offence u/s 33 of Delhi Excise Act.
Announced in the open court (AJAY NARWAL)
on 12th day of October, 2023 Metropolitan Magistrate-02,
North District/12.10.2023
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