Delhi District Court
Fir No. 107/2017, Ps : Hauz Qazi State vs . Sachin @ Ganesh on 4 May, 2019
FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Sachin @ Ganesh
FIR No. 107/2017
PS : Hauz Qazi
U/s 33 Delhi Excise Act.
Date of Institution : 02.01.2018
Date of reserving of order : 04.05.2019
Date of Judgment : oral
CNR No. DLCT020001632018
JUDGMENT
1. Serial No. of the case : 38/2018
2. Name of the Complainant : ASI Babu Ram
3. Date of incident : 29.08.2017
4. Name of accused person :
Sachin @ Ganesh S/o Late Mohan Lal,
R/o H. No. 1595, Gali Boriyan Himmat
Garh, Delhi
5. Offence for which chargesheet
has been filed : S. 33 Delhi Excise Act.
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FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh
6. Offence for which charge
has been framed : S. 33 Delhi Excise Act.
6. Plea of accused : Not guilty
7. Final Order : Acquitted
8. Date of Judgment : 04.05.2019
BRIEF REASONS FOR ORDER:
1. Mr. Sachin @ Ganesh, the accused herein, has been chargesheeted for committing offence punishable under Section 33, the Delhi Excise Act.
2. The case of the prosecution is that on 29.08.2017, at about 11:30 a.m., an information was given by a secret informer to ASI Babu Ram that one person was coming with illicit liquor. The police official prepared a raiding party and apprehended the accused. The accused was found in possession of a plastic bag containing 72 quarter bottles of illicit liquor. On the basis of the complainant, present FIR was registered. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was charge sheeted for the offence punishable under Section 33, the Delhi Excise Act.
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3. After perusing the record, cognizance was taken by the Court and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 33, the Delhi Excise Act, was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 04 witnesses to prove its case against the accused.
5. PW1 ASI Babu Ram is the complainant. He has deposed that on 29.08.2017, one secret informer had informed him that a person named Sachin was carrying illicit liquor. He recorded the information vide DD No.7, PP : Himmath Garh, which is Ex. A3. He shared the information with SHO who directed him to take immediate action. Thereafter, he alongwith Ct. Prashant reached at Himmat Garh Chowk. At about 11 :45 a.m., they saw that the accused was coming with one Katta/sack upon his shoulders. At the instance of secret informer, he Page 3 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh apprehended the accused. Prior to that he had shared the information 45 passerby and asked them to join the proceedings. However, they left the spot without disclosing their names and addresses. The plastic katta was opened. He had checked the aforesaid Katta and 72 quarter bottles of illicit liquor were found. The bottles contained labels of "Officer's Choice Blue Whisky". He had separated two bottles for sample. The two samples bottles were given serial no. 1 & 2 and sealed with the seal of BR. Rest of the bottles were kept in the aforesaid Katta and sealed with the same seal. He had filled M 29 Form at the spot. The aforesaid case properties were seized vide memo Ex.PW1/A. He had prepared the rukka which is Ex. PW 1/B. The seal was handed over to Ct. Prashant after use. Rukka was handed over to Ct. Prashant for registration of FIR. He went to PS, got the FIR registered and returned at the spot with copy of FIR and original rukka. ASI Sunil had also reached at the spot who had carried further investigation of this case. He had handed over the relevant document alongwith case properties in sealed condition to the IO/ASI Sunil Kumar. IO/ASI Sunil Kumar had prepared site plan of the spot in his presence which is Page 4 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh Ex.PW1/C. The case property was not produced in the Court as it was already destroyed. The photographs and CD were produced alongwith panchnama which are PW 1/1 to PW1/4.
6. PW2 Ct. Prakash Chand is the police official who had participated in the investigation. He has deposed that 28.09.2017, he had taken the sample bottles to the Excise Laboratory vide RC Mark 2/1.
7. PW3 Ct. Prashant Kumar is the police official who was with the complainant at the time of apprehension of the accused. He has deposed similar to PW1. He has also deposed that IO / ASI Sunil Kumar had arrested and personally searched the accused in his presence vide memo Ex.PW3/A and Ex. PW3/B.
8. PW4 ASI Sunil Kumar is the IO of the case. He has deposed that on 29.08.2017 investigation of the present case was marked to him after the registration of the present FIR. He had reached at the spot. ASI Babu Ram had handed over him the seizure memo, the recovered liquor in sealed condition with the seal of BR, two sample of liquor in sealed condition with the seal of Page 5 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh BR, Excise form M29 and custody of accused Sachin @ Ganesh. He prepared the site plan at the instance of ASI Babu Ram. He recorded the statement of ASI Babu Ram and he was discharged. After inquiry he arrested the accused vide memo Ex.PW3/B. He conducted his personal search vide memo Ex.PW3/A. He recorded his disclosure statement which is Ex. PW4/A. The accused was medically examined. He had sent the sample for examination. He had prepared the challan and filed in the Court.
9. The witnesses were cross examined. The accused admitted the FIR which is Ex.A1, the certificate under Section 65 B of Indian Evidence Act which is Ex. A 2, DD No.7, PS : Hauz Qazi which is Ex.A3 and report of ECL which is Ex. A4.
10. The prosecution evidence was closed. Accused was examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied the incriminating evidence. He would state that he was falsely implicated in the present case
11. The accused did not lead defence evidence. Therefore, matter was fixed for final arguments.
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12. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identity of the accused has been established beyond reasonable doubts. All the ingredients of the offence have been proved by the prosecution. Hence the guilt of the accused has been proved. Therefore, it is prayed, the accused may be convicted.
13. Ld. Counsel for accused, on the other hand, would argue that nothing was recovered from the possession of accused at the time of his arrest and he has been falsely implicated in the present case. Ld. Counsel for accused would further contend that police had planted the said illicit liquor upon the accused with intention to send him behind bars and to settle some personal score. All prosecution witnesses are fellow police officials and they all are interested witnesses. No independent public person has been examined to prove the factum of recovery of illicit liquor in question from accused despite spot in question being a thickly populated commercial and residential area. There are various contradictions in the testimonies of the prosecution witnesses. Benefit of doubt may be given to the accused and he may be acquitted.
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14. I have heard the submissions and carefully perused the material available on record.
15. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court
16. The accused herein has been charged for an offence punishable under section 33, the Delhi Excise Act. The Section reads as under:
"Section 33 Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act
(a) manufactures, imports, exports, transports or removes any intoxicant;Page 8 of 19 MM08/C/THC/Delhi/04/05/19
FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh
(b) constructs or work; any manufactory or warehouse;
(c) bottles any liquor or purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than today or tan;
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees."
17. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or license and he was apprehended on the spot.
18. In order to bring home the charge against the accused, the prosecution is required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
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19. Ld. APP for the state has relied upon Section 52 of the Delhi Excise Act. It has been argued that where the accused is charged of commission of the offence punishable Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary.
20. I have considered the submission. However, I am of the opinion that this is not the correct interpretation of the law. Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of offence in certain cases. (1) In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily. (2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had Page 10 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh exercised due care in the prevention of the commission of such an offence".
21. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly show that it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused before the presumption under the aforesaid provision is being raised against the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. Now it has to be seen whether the prosecution has established beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor.
22. In the present case, the entire story of the prosecution is based on the fact of alleged recovery of illicit liquor. However, as the record would reveal, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected from a public place i.e., Himmat Garh Chowk, Delhi. PW Page 11 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh 1 ASI Babu Ram has stated in his examination that he had asked some public persons to join the raiding party. Thus, the place of recovery and apprehension of the accused is clearly located in an area where public persons were readily available. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
23. There is nothing on record to show that PW1 had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
24. Thus, it is shown on record that the complainant and the IO did not make any genuine efforts Page 12 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh in the present case to get independent public witness joined the search proceedings despite spot being crowded area. No notice or warning had been given to public persons who had allegedly refused to join search proceedings, which also creates doubt on the story of the prosecution. Nonavailability of a public witness is one thing and not joining public person as a witness despite their availability is altogether different thing. In case a public person is available, it is duty of the police official to make sincere efforts to persuade such person to join the legal proceedings to become a witness. However, in the present case no such efforts are shown to be made by the police officials. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under: "The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They Page 13 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
25. In the present case, nonjoining of any public person as a witness creates doubt on the case of the prosecution.
26. This Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
27. As per the testimonies of the prosecution witness PW1, the samples of liquor and other case property were sealed by him with the seal of BR. However, there is no handing over memo of the seal to show that seal was handed over to some independent witness. Thus, Page 14 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh the possibility that the case property might have been tampered with cannot be ruled out.
28. PW1 ASI Babu Ram has deposed that he had seized the liquor, the sample bottle and the excise form vide memo Ex. PW1/A. Thereafter, he prepared the rukka Ex. PW1/B. It is, therefore, clear that the seizure memo 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 memo Ex. PW1/A. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex. PW1/A bears the FIR number and case details in the same ink and the same handwriting in which the said documents were prepared. The same indicates that FIR number was mentioned on the said document while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v.
Page 15 of 19 MM08/C/THC/Delhi/04/05/19FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It 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."
29. In Mohd. Hashim v. State, 1999 VI AD Page 16 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh (Delhi) 569, the Hon'ble High Court of Delhi has observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the SubInspector Narender Kumar Tyagi (PW7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
30. In the present case also, no explanation is available on record as to how the FIR number and case Page 17 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh details had appeared on the seizure memo Ex. PW1/A. The same leads to only one conclusion that either the said document was prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases a reasonable doubt has been raised on the case of the prosecution. The accused is therefore entitled to the benefit of reasonable doubts.
31. In the light of the discussion hereinabove, I am of the opinion that the facts that no independent witness was cited or examined, possibility of misuse of seal has not been ruled out and the appearance of FIR number and case particulars on the seizure memo has not been explained, are able to raise clouds of reasonable suspicion over the prosecution story. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
32. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused. The accused is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act.
33. Case property be confiscated to State as per Page 18 of 19 MM08/C/THC/Delhi/04/05/19 FIR No. 107/2017, PS : Hauz Qazi State Vs. Sachin @ Ganesh rules.
34. The accused has already furnished bond under Section 437A, with one surety along with photographs and Digitally signed copies of address proof. by DINESH DINESH KUMAR KUMAR Date:
2019.05.04 16:51:01 +0530 Pronounced in the open Court on (Dinesh Kumar) this 04th day of May 2019. MM08 (Central) Tis Hazari Courts, Delhi.Page 19 of 19 MM08/C/THC/Delhi/04/05/19