Delhi District Court
Title Of The Case: : State vs . Vikram on 16 May, 2023
IN THE COURT OF MS. SANYA DALAL
METROPOLITAN MAGISTRATE-I (N/W)
ROHINI COURTS, DELHI
New Case No. : R-541128/16
Title of the case: : State vs. VIKRAM
FIR No. : 597/15 PS Sultanpuri
Date of institution : 17.10.2015
Date of reserving Judgment : 26.04.2023
Date of pronouncement : 16.05.2023
JUDGMENT :
(a) The date of commission 24.06.2015
(b)The name of complainant Ct. Surender No. 602/OD.
(c) The name of accused Vikram
S/o late Sh. Madan Lal
R/o H. No. 291/5, Near G Block, Rattan
Vihar, Sultanpuri, Delhi.
(d) The offence complained of 33 Delhi Excise Act
(e)The plea of the accused Pleaded not guilty
(f)The final order Acquittal
(g)The date of such order 16.05.2023
JUDGMENT
1. In the present case, facts in brief can be stated as that on 24.06.2015 at about 7.20 PM, at corner of Gali No. 5, Rattan Vihar, Near G Block, Sultanpuri, Delhi, accused was found in possession of white katta containing one gatta pettie (47 quarter bottles of NV Group Besto Whiskey) for sale in Haryana only without any valid permit or license and in contravention of provisions of Delhi Excise Act Digitally signed by FIR No. 597/15 State vs. Vikram 1 / 12 SANYA SANYA DALAL Date:
DALAL 2023.05.16
03:26:02
+0530
without any permit or license, hence, he was prosecuted for the said allegations qua the offence u/s 33 of The Delhi Excise Act, 2009.
2. Upon completion of investigation, chargesheet was filed u/s 33 of The Delhi Excise Act, 2009, against the accused.
3. The cognizance of the offence u/s 33/38 of Delhi Excise Act was taken on 17.10.2015 and the accused was summoned. Upon appearance of the accused, the compliance of Section 207 CrPC was carried out.
4. The material on record prima facie disclosed the commission of offence u/s 33 of The Delhi Excise Act, 2009. The charge was accordingly framed against the accused on 09.12.2015 to which he pleaded not guilty and claimed trial. Hence, this Court conducted trial.
5. For proving its case, prosecution examined 04 witnesses.
6. PW1 SI Surender deposed that on 24.06.2015, he alongwith Ct. Vijay were on patrolling duty in the area of Ratan Vihar Gali no. 5 Sultanpuri and while patrolling when they reached at Gali no. 5 at about 7.20 pm, they saw one person carrying one plastic katta on his head. On seeing them in the uniform, he tried to flee away from the spot. On suspicion, they stopped him and checked the katta and found illicit liquor in it. Thereafter, they had informed about the same in the PS and after sometime HC Krishan Kumar/IO came at the spot and the custody of accused alognwith recovered plastic katta containing one gatta patie was given to him. He deposed that IO requested 4-5 public persons to join the investigation but none of them agreed and left the spot without disclosing their name and addresses. He deposed that IO opened the gatta paties and found 47 quarter bottles each of Besto Whisky for Sale in Haryana. IO took out one quarter bottle from the pattie and kept the remaining into the pattie and pattie was again put in the aforesaid Digitally signed by FIR No. 597/15 State vs. Vikram 2 / 12 SANYA SANYA DALAL Date:
DALAL 2023.05.16
03:26:14
+0530
katta and gave Srl. no. S1 and S1A, prepared the pullanda of the same and sealed with the seal of KK. Seal after use was handed over to him. He deposed that IO filled form M29 at the spot. Thereafter, IO recorded his statement Ex.PW1/A and prepared the tehrir and the same was handed over to Ct. Vijay for the registration of FIR. He went to the PS for the same and after registration of FIR came back to the spot and handed over the copy of FIR alongwith original rukka to IO. He deposed that IO prepared the seizure memo which is Ex.PW1/B bearing my signature at point A. IO prepared site plan at his instance which was Ex.PW1/C. IO recorded his disclosure statement as Ex.PW1/D The case property was deposited in the malkhana. On 03.07.2015 he deposited the sample of the case property in the Excise Lab ITO vide RC no. 176/21/15 and after depositing the same he handed over the receiving copy to the MHCM. The sample of the case property remained intact until in his possession. MHCM has produced the case property Ex.P1 which was correctly identified by the witness. The destruction order through which the case property of the present case was destroyed was Mark A. During crossexamination, he deposed that the distance between P.S., and spot was about 022.5 KM. IO reached at the spot at about 07.45 PM. He deposed that they finally left the spot at about 11.15 AM. No handing over memo of the seal was prepared by IO.
7. PW2 HC Vijay Singh deposed exactly on the same lines as PW1, being with PW1 on the patrolling duty.
8. PW3 HC Parveen deposed that on 24.06.2015, he was posted as MHCM at PS Sultanpuri. He deposed that IO deposited the case property i.e. one plastic katta alongwith one sample, copy of seizure memo, sample seal, form M-29 and seal of KK. He deposed that the same he mentioned in register no. 19 and copy of the same was Ex. PW3/A (OSR). He deposed that on 30.07.2015, he handed over the same for analysis at Excise Office through Ct. Surinder, copy of Digitally signed by FIR No. 597/15 State vs. Vikram 3 / 12 SANYA SANYA DALAL Date:
DALAL 2023.05.16
03:26:23
+0530
the same was Ex. PW3/B. He deposed that on 14.09.2015, he received result of abovesaid samples from IT office. On 25.06.2016, the case property was destroyed.
During cross-examination, he admitted that there was no receiving in column no. 7 of register no. 19. He admitted that no illicit liquor was confiscated in his presence.
9. PW4 ASI Krishan Kumar deposed that on 24.06.2015, on receipt of DD No. 62B, he went to the spot at the corner of gali no. 5, Ratan Vihar, Near G Block, Sultanpuri, Delhi where he met Ct. Surender and Ct. Vijay who handed over the custody of accused alongwith recovered plastic katta to him. He deposed that he requested 4-5 public persons to join the investigation but none of them agreed and left the spot without disclosing their name and addresses. He deposed that he opened the katta and found one gatta patie containing 47 quarter bottles of NV Besto Whisky. He took out one quarter bottle as sample and kept the remaining into the katta and prepared the pullanda of the same and sealed with the seal of KK. Seal after use was handed over to Ct. Surender. He deposed that he filled form M29 at the spot. Thereafter, he recorded statement of Ct. Surender already Ex.PW1/A and prepared the tehrir Ex. PW4/A and the same was handed over to Ct. Vijay for the registration of FIR. He went to the PS for the same and after registration of FIR came back to the spot and handed over the copy of FIR alongwith original rukka to him. He deposed that thereafter, he prepared the seizure memo which was already Ex.PW1/B bearing his signature at point B. he recorded disclosure statement of accused Ex. PW1/D and prepared site plan which was Ex.PW1/C. He deposed that he served notice u/s 41A Cr.PC upon the accused which was Ex. PW4/B. The case property was deposited in the malkhana. On 03.07.2015 he directed Ct. Surender to deposit the sample of the case property in the Excise Lab ITO. MHCM had produced the case property already Ex. P1 which was correctly identified by him. The destruction order through which the case property of the present case was destroyed was Mark A. Digitally signed by SANYA FIR No. 597/15 State vs. Vikram 4 / 12 SANYA DALAL DALAL Date:
2023.05.16 03:26:37 +0530 During crossexamination, he deposed that he received DD No. 62B at about 7.30 PM. He admitted that the spot was a thickly populated place and many persons were available there. He deposed that he asked some persons of the locality to join the investigation but none were ready to join the investigation and he did not serve the notice to them. He deposed that he prepared firstly seizure memo of the case property after interrogation, thereafter he prepared tehrir on the spot. He admitted that no adding or editing were made on the above said memos and documents. He deposed that no handing over memo of the seal was prepared. He admitted that no public persons supported the investigation. He denied the suggestion that he had not properly investigated the matter or that he had taken the signature of accused on blank or semi blank paper thereafter, he converted the said documents in different memos.
10. Vide separate statement of the accused u/s 294 Cr.PC r/w 313 Cr.PC he admitted the genuineness of DD No. 60B, DD No. 62B, FIR No. 597/15, certificate u/s 65B of Indian Evidence Act and chemical examiner report vide Ex.P-1 to Ex. P-5.
11. Upon completion of prosecution evidence, the accused was examined in accordance with Section 313 Cr.P.C. The entire incriminating evidence was put to him and he denied the same and stated to be have been falsely implicated. The accused opted not to lead DE.
12. Final arguments were heard.
13. Sh.Pankaj Yadav, Ld. APP for the State argued that on the basis of the entire evidence brought on record, the guilt of the accused has been established beyond reasonable doubt accordingly, the accused shall be convicted. He further argued that from the entire evidence led by the prosecution, it is clearly established that illicit liquor without any permit/license was recovered from the possession of Digitally signed by FIR No. 597/15 State vs. Vikram 5 / 12 SANYA SANYA DALAL Date:
DALAL 2023.05.16
03:26:46
+0530
the accused person.
14. On the other hand, Sh. Raj Kapoor Ld. Counsel for the accused argued that no public witness was present at the spot at the relevant point of time.
He further argued that there are material contradictions in the testimony of complainant and the IO which reveals that this is a false case lodged against the accused and further argued that the accused is innocent who has been falsely implicated by the prosecution.
Applicable Law and its application to present facts
15. Section 33 of The Delhi Excise Act, 2009 provides penalty for unlawful import, export, transport, manufacture, possession, sale etc. of any intoxicant or liquor.
16. 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.
Although, sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33 Delhi Excise Act, 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 Digitally signed by FIR No. 597/15 State vs. Vikram 6 / 12 SANYA SANYA DALAL Date:
DALAL 2023.05.16
03:26:54
+0530
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."
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 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.
17. In the present case, the essential ingredients to establish the liability of the accused person under Section 33 of The Delhi Excise Act, 2009 is that the illicit liquor was recovered from the possession of the accused.
18. I shall now delve into the appraisal of material available on record.
19. Possibility of tampering: The testimony of PW1, PW2 and PW4 reflect that the case property i.e. one quarter bottle and the remaining case property was sealed with the seal of KK however, there is no handing over memo of the seal to suggest that the seal used for the seizure of the case property remained in possession of any independent person. PW4 correctly identified the case property and same was Ex. P-1 and at the time of production of case property, Digitally FIR No. 597/15 State vs. Vikram 7 / 12 signed by SANYA SANYA DALAL Date:
DALAL 2023.05.16
03:27:07
+0530
the same was bearing the seal of MS. There is no document on record which could suggest that seal of MS belongs to whom and the same was appended at what point of time. Also, only one sample was drawn out of the case property, the same clearly reflects that in case only one sample was drawn out of the alleged recovered illicit liquor then what was sent for the examination to the chemical examiner.
20. Proof regarding the complainant being on patrolling duty:
It would be pertinent to note that there is no proof/material on record to prove that PW1 and PW2 were on patrolling duty on the relevant point of time i.e. on 24.06.2015. Further, there is no departure entry to the said effect.
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. 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.
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 by Hon'ble High Court of Delhi in Rattan Lal Vs. State 1987 (2) Crimes 29, 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 Digitally signed by FIR No. 597/15 State vs. Vikram 8 / 12 SANYA SANYA DALAL Date:
DALAL 2023.05.16
03:27:15
+0530
reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the instant case this provision has not been complied by the concerned Police Witness. The relevant entries regarding the arrival and departure of the police officials have not been proved.
21. Non Joining of any independent public witnesses: As per the version of PW1, PW2 and PW4 the public persons were asked to join the investigation but none of them agreed and went away without disclosing their names and addresses. Further the IO has not produced any notice u/s 160 of the Cr.PC which ought to have been served upon those available independent witnesses who allegedly refused to join the investigation.
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."
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 during the course of investigation did not even make endeavour to ask the Digitally signed by FIR No. 597/15 State vs. Vikram 9 / 12 SANYA SANYA DALAL Date:
DALAL 2023.05.16
03:27:22
+0530
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."
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:
"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"
Digitally signed by SANYA FIR No. 597/15 State vs. Vikram 10 / 12 SANYA DALAL DALAL Date:
2023.05.16 03:27:30 +0530 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 scrutinize their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
22. No photography of case property was carried out by the investigating agency.
Also, the testimony of all the prosecution witnesses is completely silent upon the aspect of the photography of the case property. Accordingly, no photographs of the case property were taken at the time of recovery.
23. A careful perusal of the testimony of PW4 would reveal that on 24.06.2015 after arrival on the spot, he opened the katta and took out one quarter bottle as sample and sealed that with the seal of KK and recorded statement of Ct. Surender. Thereafter, he prepared rukka Ex. PW4/A and got the FIR registered through Ct. Surender and prepared the seizure memo already Ex. PW1/B. However, MHCM produced the case property, the sample quarter bottle bearing the seal of MS and the case particulars, then the same creates a serious doubt upon the story of prosecution.
24. In view of the above, it can be safely concluded that prosecution has miserably failed to establish beyond reasonable doubt the case against the accused. Hence, the benefit of doubt be given to the accused. Since the recovery of illicit liquor from the possession of accused could not be established, accused namely Vikram stands acquitted of the offences under Section 33 The Delhi Excise Act, 2009.
Digitally signed by SANYA SANYA DALAL
DALAL Date:
2023.05.16
03:27:37 +0530
FIR No. 597/15 State vs. Vikram 11 / 12
25. Bail bonds filed by the accused in compliance of section 437A Cr.PC shall remain in force for the period of six months from today.
File be consigned to record room after due compliance.
Announced in the open Court on 16th day of May, 2023 SANYA Digitally signed by SANYA DALAL Date: 2023.05.16 DALAL 03:27:46 +0530 (SANYA DALAL) METROPOLITAN MAGISTRATE-1 North West ROHINI / DELHI 16.05.2023 FIR No. 597/15 State vs. Vikram 12 / 12