Delhi District Court
State vs . Bina Devi on 7 August, 2023
IN THE COURT OF SH. SANKALP KAPOOR, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, NEW DELHI
DLSW020296472022
CNR No.DLSW020296472022
Case 8260/2022
FIR No. 245/2022
PS: Dwarka North
U/S: 33 Delhi Excise Act
State Vs. Bina Devi
JUDGMENT
A. Sl. no. of the case : 8260/2022
B. Date of institution : 05.07.2022
C. Date of offence : 17.04.2022
D. Name of the complainant : Ram Chander Jat, PIS No. 28081425
Belt No. 812/ND, PS Dwarka North.
E. Name of the accused : Bina Devi w/o Sh. Rakesh Kumar,
R/o B-323, Pocket B, Sector 15,
J.J. Colony, Bharat Vihar, Kakrola,
New Delhi.
F. Offence complained of : 33 Delhi Excise Act.
G. Plea of accused : Pleaded not guilty.
H. Final order : Acquitted.
I. Date of such order : 07.08.2023
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FIR No. 245/2022 State v. Bina Devi Page no. 1 of 14 BRIEF STATEMENT OF REASONS FOR THE DECISION:-
1. Vide this judgment the accused is being acquitted of the offence punishable under Section 33 Delhi Excise Act, 2009 in this case FIR No. 245/2022 police station Dwarka North by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION:-
2. Briefly stated, the case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C') is that on 17.04.2022 at about 09:20 p.m infront of House no. B-323, Pocket B, JJ Colony, Bharat Vihar, Kakrola, Sector 15, Dwarka, New Delhi within the jurisdiction of police station Dwarka North, upon receipt of a secret information the accused was apprehended by HC Ram Chander and W/Ct. Yogita in possession of one plastic sack containing 65 quarter bottles of illicit liquor labeled motta masaledar desi sharab 180 ml for sale in Haryana only, without any permit or licence of National Capital Territory of Delhi.
COURT PROCEEDINGS:-
3. Upon completion of investigation, police report under Section 173 of the Cr.P.C. was filed and the accused was consequently summoned vide order dated 05.07.2022.
4. The copies of the police report and annexed documents were supplied to the accused in due compliance of Section 207 Cr.P.C.
FIR No. 245/2022 State v. Bina Devi Page no. 2 of 14
CHARGE:-
5. Vide order dated 25.04.2023 passed by this Court, charge for the offence punishable under Section 33 of the Delhi Excise Act was framed against the accused to which she pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS:-
6. Vide order dated 25.04.2023, in compliance of the provisions of Section 294 Cr.P.C., the accused was called upon to admit/deny the FIR No. 245/2022 Police Station Dwarka North, certificate under Section 65B of Indian Evidence Act, DD No.102A dated 17.04.2022, Road certificate bearing number 86/21/22 dated 22.04.2022 and excise control laboratory report dated 13.06.2022 which she admitted and the same were accordingly exhibited as Ex. X1 to Ex. X5 respectively. In view of the admission made, the evidence of HC Vijay Prakash, DD writer/ DO HC Vishal Gaur and Dr. Rajesh Joshi chemical examiner was dispensed with, being admitted by the accused.
EVIDENCE OF THE PROSECUTION:-
7. To prove its case, the prosecution in all examined two witnesses.
a. PW-1 HC Ram Chandra deposed that on 17.04.2022 he was posted at PS Dwarka North as Head Constable and on that day he was on patrolling duty along with Ct. Jai Poonamat vide DD number 102A. He further deposed that during patrolling they reached B Block, JJ colony, Bharat Vihar and at about 09:20 PM they met one secret informer who gave information that one lady was selling illicit liquor outside her house by sitting on a cot. He further FIR No. 245/2022 State v. Bina Devi Page no. 3 of 14 deposed that thereafter the said information as shared with the DO and W/Ct Yogita was sent to the spot. He further deposed that upon receiving the information he asked some public persons to join the investigation however, all of them refused to join citing their personal difficulties. He further deposed that thereafter they all alon-with the secret informer reached at B-323, JJ Colony, Bharat Vihar, Dwarka where they saw one lady sitting on a cot right outside a house and a white coloured plastic sack. He further deposed that when the said lady was enquired about the said bag she was unable to give any satisfactory answer. He further deposed that upon checking the said katta it was found containing illegal liquor of label motta maaledar deshi sharab for sale in Haryana only. He further deposed that thereafter he took out one quarter bottle as sample from the plastic katta and remaining 64 quarter bottles were placed back in the same katta and he sealed the sample bottle with cloth on neck and the remaining bottles in katta with the seal of 'ASR'. He further deposed that he also filled form M-29 and after using the seal handed over the same to W/ Ct. Yogita. He further deposed that thereafter he prepared the seizure memo exhibited as Ex. PW-1/A and thereafter prepared the tehrir exhibited as Ex. PW-1/B and handed over the tehrir to the Constable Jai Poonam for registration of FIR. He further deposed that thereafter the Ct. Jai Poonam came back to the spot along-with HC Pappu Ram and then PW-1 told the facts of the case to IO/ HC Pappu Ram and handed him over the custody of the accused and the seized case property, M-29 and seizure memo. PW-1 correctly identified the accused in the court and the case property from the samples and photographs brought by the MHC(M).
In his cross-examination by Ld. defence counsel PW-1 deposed that on the day of incident his patrolling duty was from 08.00 pm to 08.00 am and he FIR No. 245/2022 State v. Bina Devi Page no. 4 of 14 along-with the other members of the team reached at the spot at about 08:05 pm on government motorcycle whose registration number he was unable to recall. He stated that the spot was a residential area and the public persons were passing nearby the spot. He denied the suggestion that he did not ask any public person to join as a member of raiding party. He voluntarily added that he asked them to join but they all refused and went from there without giving their names and addresses. He accepted as correct the suggestion that he did not serve any notice to them. He further deposed that he sent the tehrir to the PS at about 10.55 PM though Ct. Jai Poonam and the IO reached the spot at about 11:45 PM. He further deposed that the IO did not record the statement of any public person in his presence. He further deposed that he left the spot at about 10:30 PM. PW-1 deposed that the distance between the spot and the PS is about 03 km. He lastly denied the suggestion that no recovery was ever effected from the accused at any point of time or that the accused has been falsely implicated in the present case.
b. PW-2/ IO HC Pappu Ram deposed that on 17.04.2022, he was posted at PS Dwarka North as HC and he received the investigation of this case after registration of FIR. He further deposed that thereafter he reached at the spot along-with Ct. Jai Poonam and there he met HC Ram Chandra and W/ Ct. Yogita along-with case property and the accused. He further deposed that HC Ram Chandra handed him over the seized case property, the documents he had prepared and the accused. He further deposed that he also prepared the site plan at the instance of PW-1 and the accused was joined in the investigation, her disclosure statement was recorded and thereafter she was given a notice under Section 41A CrPC. He further deposed that thereafter he recorded the statements of the witnesses and took the case property to the PS and deposited FIR No. 245/2022 State v. Bina Devi Page no. 5 of 14 it in malkhana. He further deposed that thereafter the sample was sent to excise office. He further deposed that during the investigation, he also recorded the statement of the witnesses u/s 161 CrPC and obtained chemical examination result from ITO. He lastly deposed that after completion of the investigation, he submitted the charge-sheet before the concerned court. Accused and the case property were correctly identified by the witness.
In his cross-examination by Ld. defence counsel PW-2 deposed that on the day of incident he received the information from the DO and reached the spot at about 11:15 PM. He further deposed that he remained at the spot for about 30-45 minutes and thereafter returned to the PS on his own motorcycle. He further deposed that Ct. Jai Poonam and W/Ct. Yogita returned to the PS on another motorcycle along-with case property. He further accepted as correct the suggestion that the case property was in a sealed condition when he reached there. He accepted as correct the suggestion that the place of recovery was a residential area and that some public persons were passing from the spot. He also deposed that during the investigation he did not record statement of any public person or eye witness and voluntarily added that all public persons refused to join the investigation and left the spot without giving their names and addresses. He lastly denied the suggestion that he never visited the spot and prepared all the documents while sitting at the PS or that the accused was falsely implicated in the present case and case property was falsely planted upon the accused.
c. Thereafter, PW/ W/Ct. and Ct. Jai Poonam were dropped from the list of witnesses as they were repeat witnesses, their testimonies and role being covered in the testimony of PW-1 and PW-2. Thereupon, on statement of Ld. APP for the State the PE was closed and matter was fixed for statement of FIR No. 245/2022 State v. Bina Devi Page no. 6 of 14 accused.
STATEMENT / DEFENCE OF THE ACCUSED:-
8. In her examination recorded under Section 313 Cr.P.C read with Section 281 Cr.P.C., the accused denied the entire evidence put to her. She categorically stated that she is innocent and has been falsely implicated in the present case. The accused did not lead any evidence in her defence.
ARGUMENTS:-
9. Learned Assistant Public Prosecutor for the State addressed pertinent arguments. He submitted that the accused as well as the case property have been correctly identified by the witnesses. He stated that link evidence is also available. He urged that the case has been proved beyond doubt against the accused and prayed for conviction of the accused.
10. On the other hand, Sh. Rajnikant Mishra, learned counsel for the accused submitted that the accused has been falsely implicated by the police and nothing was recovered from her possession. He submitted that the absence of public witnesses to the alleged recovery is fatal to the case of the prosecution and thus prayed for acquittal of the accused.
ANALYSIS AND FINDINGS:-
11. 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 have been considered.
FIR No. 245/2022 State v. Bina Devi Page no. 7 of 14 Charge under Section 33 Delhi Excise Act
12. 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 accused was found in possession of illicit liquor without any permit or licence. In order to bring home the charge against the accused, the prosecution was required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
Re: Absence of independent witnesses
13. Evidently, 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 residential area. The spot of recovery as per the site plan Ex. PW-2/A was located on a main road and has several houses in the neighbour-hood. Further, as per the site plan, the spot of recovery was JJ Colony, Kakrola, which, according to the site plan, is surrounded on all four sides by residential colonies. The place of recovery and apprehension of the accused is, therefore, clearly located in an area where public persons would be readily available. The apprehension and recovery were allegedly made at about 9.20 PM. Thus, at the place and time of the alleged recovery of illicit liquor and apprehension of the accused, public persons would in all likelihood have been present and available or have at least passed by the spot. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
14. It is further pertinent to note that both PW-1 and PW-2 in their cross-
FIR No. 245/2022 State v. Bina Devi Page no. 8 of 14 examination, stated that there were public persons nearby the place of incident and they had asked them to join the investigation but all of them refused. PWs admittedly had not given any notice to the said persons upon their refusal to join the investigation. PW-1 and PW-2 in their cross- examination stated that they did ask certain public persons to join the proceedings however public persons refused citing reasons. Further, PW-1 and PW-2 stated that no public witness came join the investigation. However, neither of them stated the description of the persons who had allegedly refused to join the investigation. Further, there is nothing on record to show that PW-1 or PW-2 had served any notice under Section 160 Cr.P.C. upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW-1 or PW-2 to join public witnesses in the proceedings. 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 non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of 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. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... 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 FIR No. 245/2022 State v. Bina Devi Page no. 9 of 14 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."
15. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held 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.
Re: Possibility of misuse of seal of the investigating officer
16. As per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the investigating officer with the seal of 'ASR'. However, the PWs have not deposed qua the handing over of the said seals to any other witness or police official and no handing over memo FIR No. 245/2022 State v. Bina Devi Page no. 10 of 14 regarding the same was prepared. The seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the possibility that the case property may have been tampered with cannot be ruled out.
Re: Other infirmities in the prosecution case
17. It further needs to be appreciated that after preparing the tehrir HC Ram Chandra sent Ct. Jai Poonam for registration of FIR to the PS, however, admittedly seizure memos Ex. PW-1/A has been prepared by HC Ram Chandra. It is, therefore, clear that the seizure memos of the liquor must have been prepared at the spot before the tehrir was sent to the police station for registration of the FIR. A perusal of the seizure memo reveals that it contains the FIR details, thus raising a valid doubt in the mind of this court as to how it was made before the FIR was lodged and still contained the FIR details. 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 Constable Jai Poonam. 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 memos Ex. PW-1/A bear the FIR number and case details in the same ink and 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. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed paragraph 5 as under:
FIR No. 245/2022 State v. Bina Devi Page no. 11 of 14 "... 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."
18. In paragraph 4 of Mohd. Hashim v. State, 1999 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 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 FIR No. 245/2022 State v. Bina Devi Page no. 12 of 14 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."
19. 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. PW-1/A. 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 or that the IO never joined the investigation at the spot and every part of the investigation was done by him while sitting at the PS as alleged by the defence. 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.
20. Furthermore, the testimony of PW-1 and PW-2 reveals that there are several inconsistencies in the timelines. PW-1 deposed that IO reached the spot at about 11.30-11.45 PM whereas PW-2/ IO deposed that he reached the spot at 11:15 PM. Moreover, PW-1 deposed that he left the spot at about 10:30 PM whereas PW-2 reached the spot earliest at about 11:15 PM, in light of the same it is hard to fathom as to how PW-1 met the IO and apprised him the facts of the case and handed him over the seized goods and the accused.
CONCLUSION:-
21. The facts that no independent witness was cited or examined, daily diary entry regarding departure of PW-1 has not been proved, possibility of FIR No. 245/2022 State v. Bina Devi Page no. 13 of 14 misuse of seal has not been ruled out and the appearance of FIR number and case particulars on the seizure memos has not been explained, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
22. It is trite in criminal jurisprudence that 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 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 to the accused.
23. 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, who is entitled to be exonerated of the charges against her in the present case. The accused is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act. Case property be confiscated to State as per rules.
24. File be consigned to record room after due compliance.
Announced in the open Court Digitally signed
by SANKALP
SANKALP KAPOOR
today i.e. on 07.08.2023. KAPOOR Date:
2023.08.07
17:03:00 +0530
(Sankalp Kapoor)
Metropolitan Magistrate-06
South West/Dwarka Court/New Delhi
FIR No. 245/2022 State v. Bina Devi Page no. 14 of 14